What is an Impairment Rating Evaluation, and how is it different from an Independent Medical Exam?
An Impairment Rating Evaluation (I.R.E.) is very different from a typical Independent Medical Exam (I.M.E.), and effects your right to workers’ compensation benefits in different ways.
An IME is performed by a doctor chosen, and generously paid by the defendant. An IME is NOT “independent”, so claimant lawyers call them Defense Medical Exams (D.M.E.). The purpose of an IME is to determine whether the injured worker is “disabled”. The doctor will express his opinion (paid for by defendant) whether a work related injury even occurred; whether claimant has recovered; and/or what level of work the claimant is capable of performing.
An IRE is usually performed by a doctor chosen by the Commonwealth of Pennsylvania, following a Request submitted by the insurance company. The purpose is to determine TWO things:
(1) whether the work injury is “reasonably presumed to be permanent”, and if so,
(2) to calculate a percentage of impairment caused by the work injury.
What is the difference between Disability and Impairment?
Pennsylvania’s Worker’s Compensation was exclusively a wage loss system before 1996. Benefits were based on whether the injured worker was “disabled” from returning to work. If there is no work available to the injured worker within their capabilities, they are “totally disabled”. If they can work with restrictions AND there is work available within those restrictions, the claimant is “partially disabled”. A totally disabled claimant can (in theory) receive wage loss benefits for life. A partially disabled claimant is only entitled to wage loss benefits for 500 weeks. “Disability” is determined based on whether there is or is not work available to the injured worker.
Changes to the Workers’ Compensation Act in 1996 created “IREs”, adding a new element to work injury claims, based on “impairment”, rather than ‘disability’. Impairment is a mathematical calculation of how much the work related injury affects the claimant’s functional abilities. It is irrelevant whether there is work available. It is based solely on mathematical calculations. If the impairment is less than 35%, the injured worker’s legal status changes from ‘total’ disability to ‘partial’ disability. As above, partial disability limits the claimant to 500 weeks of wage loss benefits. If the change in ‘disability status’ is based on an IRE, the defendant does not need to prove that there is work available to the claimant. An IRE does not affect medical treatment.
How is the Percentage of Impairment determined?
A specially qualified expert will perform a medical exam, and make two determinations. The first step is to determine whether the claimant’s work related injury has reached a point that is “reasonably presumed to be permanent”. This is based on the definition of ‘permanency’ in The AMA Guides to the Evaluation of Permanent Impairment. [While confusing, this is different from another often used term called Maximum Medical improvement. This term means the injured worker is a good as they are reasonable expected to ever get. It does not take into consideration the possibility of worsening of the claimant’s condition over time. “Permanency” means the condition is stable, and is not expected to improve OR worsen in the foreseeable future.]
If the doctor performing the IRE determines that the work injury meets the definition of “reasonably presumed permanent”, the doctor proceeds to step 2.
Step two requires the doctor use the examination results with reference to (arbitrary) charts, tables and graphs in the AMA Guides to the calculate the ‘percentage of bodily impairment’ due to the work injury. Many of the tables and charts are subjective, allowing the doctor to use different figures, based on what the doctor thinks would be the best one to use. Based on “the math”, a percentage of bodily impairment will be determined. If that figure is under 35%, the injured worker’s disability status changes from of totally disabled to partially disabled, limiting the injured worker to 500 weeks of wage loss benefits.
How does the ‘disability status’ change?
If the insurance company Requests an IRE within the proper time frame (within 60 days of claimant having received 104 weeks of total disability benefits), the change is ‘automatic’. The insurance company simply files a form with the Department of Labor and Industry, and the status is changed. It is then the injured worker’s burden to file a petition to challenge the change of status. There are deadlines on the claimant to do so – and the timing impacts what type of arguments the claimant can make. For example, claimant can argue the insurance company’s Request was not timely; the exam or calculations were not performed correctly; the injury does not meet the definition of permanent; or the entire process violates the claimant’s constitutional rights. Some of the possible arguments are “waived” (given up), if the claimant’s challenge is not filed timely. Beyond other deadlines, the injure worker may be prohibited from raising ANY challenge.
If the insurance company does not seek an IRE within the time limit stated above, then the burden is on the defendant to prove all elements of the request, exam and calculations are accurate. This is done by filing a Petition for Modification of benefits, and presenting evidence to a Workers’ Compensation Judge who will decide the issues argued by each side, and whether the evidence presented is sufficient to satisfy the insurance company’s burden to change the injured worker’s status.
Are IREs even “legal”?
The IREs created in 1996 were found Unconstitutional in 2017, but the Legislature of Pennsylvania revised the law in 2018 to (try) to make these types of exams proper. Many lawyers fighting for the rights of injured workers are still contesting the new law as unconstitutional. It may take more than 10 years to get a definitive answer from the Appellate Courts. In the meantime, IREs are being widely used by insurance companies to limit the duration of time that a claimant can receive wage loss benefits.
Among the many arguments being raised by claimant lawyers across Pennsylvania, The Guides themselves state they should not be used for litigation or to determine the type or duration of any type of benefits any injured person should receive – yet many states have adopted the Guides – including Pennsylvania. Some medical experts involved in creating The Guides have even criticized their ‘value’, stating there is no objective way to verify their accuracy, nor to change the rating system to account for scientific advancements.
Impairment Rating Evaluations are one of the most confusing elements of Workers’ Compensation Law – and the final results have not yet even been decided by the appellate courts. EVERY Injured Worker NEEDS a lawyer – A SPECIALIST IN WORKERS COMPENSATION – to challenge these exams, and the results.
Schmidt, Kirifides & Rassias is ‘in the fight’ to have these exams once again determined to violate the Constitution – and will challenge any effort by the insurance company to limit your right to benefits. For a free, no obligation consultation, call us at 610-601-5399 or contact us online.