In Pinder v. WCAB (Lucent Technologies), (No. 23 C.D. 2014,) submitted July 18, 2014, the parties were litigating Termination and Review Petitions when the employer requested that the claimant attend an IRE (impairment rating evaluation). The claimant attended the IRE during the pendency of the litigation on the aforementioned petitions. Thereafter, the Termination Petition was denied and the Review Petition was granted, expanding the description of the claimant’s injury.

The employer then sought to modify the claimant’s benefits pursuant to the IRE results, which determined that the claimant had a whole-body impairment of only five percent. The judge credited the IRE physician and found that his unrebutted testimony supported a finding that the claimant had reached maximum medical improvement (MMI) as of the date of the IRE and that his impairment rating was far below the 50% threshold. The judge noted that the claimant’s medical expert opined that the claimant had reached MMI in the underlying litigation, as well. The WCJ determined that the employer met its burden and granted the Modification Petition.

The claimant appealed, arguing that the judge erred in relying on the IRE due to the fact that the doctor did not consider all of the compensable injuries because the IRE took place prior to the expansion of the description of injury. The court found that the WCJ did not err in crediting the unrebutted opinion of the IRE physician. Further, the IRE physician examined the expanded injuries and adopted the expanded description while formulating the claimant’s impairment. Therefore, even though the IRE took place prior to the formal expansion of the description of injury, it was still a valid examination and supported the WCJ’s ultimate findings.

What It Means to You

It is not uncommon to be involved in litigation when an IRE takes place. If there is a Review Petition pending, it is important that the IRE physician is aware of the claimant’s allegations and examines all of the claimant’s body parts involved. It is noteworthy that there is risk involved in unilaterally expanding the description of injury in the IRE, including the potential for a whole body impairment of more than 50%. If an IRE takes place prior to a Review Petition being filed and the IRE is properly challenged, you can send the claimant for another IRE after six months have passed. Therefore, it is best to discuss your strategy with counsel prior to advising the IRE physician of the description of injury.