Important Case Advisory
A DEFENDANT IS NOT REQUIRED TO PROVE EITHER JOB AVAILABILITY OR EARNING POWER WHEN SEEKING TO MODIFY A CLAIMANT’S DISABILITY STATUS ON THE BASIS OF A “LATE” IMPAIRMENT RATING EVALUATION
In a much-anticipated decision, Commonwealth Court, in the case of Diehl v. W.C.A.B. (decided April 22, 2009), determined that even though an employer’s request for an Impairment Rating Evaluation (IRE) was “late” (i.e., requested beyond the 60-day ‘window’ following the expiration of 104 weeks of total disability benefits), it was nevertheless entitled to pursue a petition to modify a claimant’s benefit status from total to partial without also having to prove either job availability or earning power. This holding constitutes a reversal of the court’s previously unpublished (and withdrawn) ruling in the same case.
In Diehl, the IRE examiner determined Claimant had an impairment rating of 28%, well below the 50% impairment threshold for change of status to “partial” disability. The employer, however, had requested the IRE well beyond the 60-day window. Upon receipt of the IRE determination, the employer then sought to unilaterally modify the claimant’s disability status from one of total disability to partial disability (an option that would have been available had the IRE been timely). The court ruled that the supreme court’s holding in Gardner v. W.C.A.B., 888 A.2d 758 (Pa. 2005), precluded this option; however, it did not preclude a petition to modify benefits from being pursued. Thus, when the employer filed its modification petition and proved that the claimant had an impairment of less than 50%, it was entitled to change the claimant’s status from total to partial.
Claimant had argued that an employer could not prevail by merely proving an impairment of less than 50%, but was also required to show evidence of job availability and/or earning power. The Court rejected this argument , holding that in cases involving “late” IRE’s an employer does not need to prove both job availability/earning power and a level of impairment less than 50% to effect a change in the claimant’s disability status. Proof of an impairment of less than 50% alone is sufficient for a judge to order the change in status.
The case is highly significant both because it clears up an area of law that has been clouded since Gardner was decided; and because it affords employers an opportunity to “start the clock running” on partial disability, even if they fail to request a timely IRE.
For further information, please contact any of our workers' compensation group attorneys.