House Bill 1840 was signed into law in Pennsylvania on October 24, 2018. It resurrected the Impairment Rating Evaluation and 500 week TPD cap effective 10/24/18 with the following provisions:
- IRE's can be requested after 104 weeks of TTD have been paid (TTD benefits paid prior to 10/24/18 are counted toward the 104 weeks)
- IRE will convert benefits to TPD and cap them at 500 weeks if:
- The exam is conducted by an appropriate expert as defined by the law
- Percentage calculated pursuant to the 6th Edition of the AMA Guides
- Percentage of whole body impairment is less than 35% (it used to be 50% so the threshold is lowered, which will help some Claimants avoid the cap)
- Change will take place 60 days after a Notice of Change of Workers’ Compensation Disability Status (LIBC 764) is filed (same as the prior law)
- No more than 2 IRE's in a 12 month period.
What does this mean for cases with old IRE's under the prior law?
- The law notes that “an insurer shall be given credit for weeks of partial disability compensation paid prior to the effective date of this paragraph.” There is support in some of the post-Protz cases for the proposition that the prior weeks classified as TPD based on an IRE can be used toward the new 500 week period after the new/updated IRE.It is not yet clear if employers will get a credit for TPD/IRE weeks paid under the old IRE law following a new IRE.Until that issue is settled, we recommend that the argument be raised and preserved in all post-Protz cases.
- We get a credit for weeks of TPD weeks prior to 10/24/18 where TPD was paid based on a return to work, job offer modification, or labor market survey/earning power assessment modification.
- Contact your attorney on all existing Protz/IRE-related cases.
- Look at your current cases where Claimant has reached 104 weeks of TTD and request an IRE.
- Consider requesting an IRE in all cases where an IRE was previously performed.
- Continue to contest any pending Protz Reinstatement Petitions
- Ensure that any new IRE's are based on the 6th Edition of the AMA Guides.