The Governor signed Act 111 last Wednesday. This is supposed to “fix” the Pennsylvania Impairment Rating portion of the Pennsylvania Workers’ Compensation Act which was deemed to be unconstitutional by the Pennsylvania Supreme Court. While we certainly have new life revived into the IRE process, we expect additional challenges from the claimants’ bar.
The “fix” establishes the following:
The provisions are to be effective immediately.
Impairment Ratings are to be governed by the 6th Edition of the AMA Guide to the Level of Permanent Impairment.
Benefits can be changed from total disability to permanent partial disability benefits if the whole body impairment is less than 35 percent. This is down from the prior level of less than 50 percent.
Hence, at this juncture, an impairment rating evaluation can be obtained for any individual who has received 104 weeks of total disability REGARDLESS of injury date, allowing for a retroactive application of the provisions. This is different than the prior IRE provisions which applied only to injuries which occurred after the effective date in 1996. While challenges from claimants’ counsel to the validity of examinations for injuries incurred prior to the adoption of Act 111 are expected, an aggressive approach suggests that an IRE can be sought to try to mitigate exposure regardless of date of injury.
If the request for designation is made within 60 days of the expiration of the 104 weeks, benefit status can be changed without litigation. If the examination is not done within that timeframe, a petition will have to be filed to modify benefits.
Notably, while old claims may have an IRE designation of physician from prior to the Protz ruling, it is recommended that a new designation be sought as the process from which that physician was designated has been ruled unconstitutional.
One other completely unrelated change to the Pennsylvania Compensation Act was also included in Act 111. Funeral expenses for death cases was raised from $3000 to $7000.
In summary, the “fix” again provides Employers with the ability to cap exposure for most claims at 500 weeks of partial after receipt of 104 weeks of total disability. While ongoing litigation will undoubtedly ensue, the enacted legislation once again provides a useful tool to limit ongoing exposure in cases where total disability is paid beyond two years.