Even when a claimant has not reached full recovery and has not returned to work in any capacity, there are still avenues available to reduce workers’ compensation exposure. One of these avenues is a medical examination called an Impairment Rating Evaluation (IRE). Under the Workers Compensation Act, a claimant is required to submit to an employer’s request for an IRE at the expiration of the receipt of 104 weeks of total disability compensation. During the examination, the IRE physician will determine the claimant’s “impairment rating” on a percentage basis. If the rating is less than 50%, the employee’s status will change to partial disability. The importance of this change is that partial disability benefits are capped at 500 weeks.

One important provision of the law is that the examining physician must determine if the claimant has reached Maximum Medical Improvement (MMI) as a prerequisite to rating the claimant’s impairment. Whether the claimant has reached MMI often becomes the main issue when litigating a challenge to an IRE examination result. Recently, the Commonwealth Court dealt with one of these challenges.

In Neff v. WCAB (Pennsylvania Game Commission),109 A.3d 291 (Pa.Cmwlth. 2015), the court was faced with a situation where an IRE physician found that a claimant had reached MMI but was also scheduled for a “reasonable” surgery.

The claimant was receiving TTD for chronic lateral epicondylitis of the right elbow. She underwent an IRE, which determined her to be at MMI with an impairment rating of one percent. Based on the IRE finding, the employer filed a modification petition, which was granted, affirmed by the Appeal Board, and became the focus of the claimant’s Commonwealth Court appeal.

The claimant argued on appeal that the IRE was invalid as a matter of law because “there was a reasonable potential for the claimant to undergo surgery.” In fact, according to the Commonwealth Court, it was “undisputed” that the claimant could undergo additional surgery in an attempt to improve her elbow condition. Even the IRE physician testified that surgery could be a “reasonable treatment option” and that there was a 25% chance that it would help the claimant’s problems. The physician also testified, however, that even with the surgery, the claimant would remain at MMI. Additionally, he testified that surgery had the potential to improve the claimant’s pain and symptoms, but would not cure the claimant’s condition and that surgery would not be significantly beneficial and could even make the claimant’s condition worse.

The Commonwealth Court affirmed the grant of the employer’s modification petition, finding the physician’s MMI opinion to be valid. The court explained that “a reasonable potential for the claimant to undergo surgery does not invalidate a finding that that claimant has reached MMI as a matter of law.”

The court distinguished the facts of Nefffrom those of one of its previous holdings, Combine v. WCAB (National Fuel & Gas Distribution Corp.), 954 A.2d 776 (Pa.Cmwlth. 2008). In Combine, the court held that a claimant had not reached MMI where he could undergo total knee replacement in the future, which had the potential to alleviate all of his symptoms.

What It Means to You

Neff serves to illustrate what is and what is not considered MMI. Just because additional treatment, including surgery, is available does not mean that a claimant has not reached MMI. This is true even if that surgery has the potential to somewhat improve a claimant’s derivative symptomology. A claimant will not have reached MMI, however, if the surgery potentially promises to have a curative effect on the claimant’s underlying problem. One should keep this important distinction in mind when determining whether a claimant should undergo an IRE and what strategy to pursue if a claimant challenges the results of an IRE.