This document discusses impairment rating evaluations (IREs) in Pennsylvania workers' compensation cases. It provides details on when an IRE can be requested, how to request one, who can perform one, and how a change in disability status occurs based on the IRE results. It also summarizes a recent court decision that found the requirement to use the most recent edition of the AMA Guides to be unconstitutional, leaving questions about how to apply the new ruling and what impairment edition should now be used.

1. IRE
Ross J. Ventre II
507∙961∙3503
rventre@wglaw.com
Stephen T. Potako
267∙765∙4132
spotako@wglaw.com

2. IRE – Powerful Tool
• The Pennsylvania Workers’ Compensation Act
limits the duration of temporary partial
disability benefits to 500 weeks.
• Before the Legislature adopted IRE provisions,
employers could only establish partial disability
based on the impact an employee’s injury had
on his/her earning power.
• Through an IRE an employer can establish
partial disability based on an employee’s
physical impairment irrespective of his/her
earning power.

3. IRE Details
When to Request:
• After employee has received 104 weeks of
temporary total disability benefits
• Ideally within 60 days of employee receipt of
104 weeks of temporary total disability benefits
• Employee must have reached maximum
medical improvement (MMI) a state of
permanency
• No more than two IREs during a 12 month
period

4. IRE Details
How to Request:
• If the parties select the IRE physician by mutual
agreement, file Form LIBC-765 Impairment
Rating Evaluation Appointment.
• If the parties do not agree, file Form LIBC-766
Request for Designation of a Physician to
Perform an IRE, and the Bureau will select the
physician independently.

5. IRE Details
Who Can Perform:
Physician must be:
• Licensed in Pennsylvania
• Board certified
• Maintain active clinical practice of at least 20 hours
per week
• Trained in performance of IREs under the AMA
Guides to the Evaluation of Permanent Impairment

6. How does change in status occur?
Without Litigation
• IRE requested within 60
day window
• Impairment rating < 50
percent
• Form LIBC 764 Notice of
Change in Workers’
Compensation Disability
Status filed
• No appeal is filed by
employee within 60 days
With Litigation
• IRE requested more than 60
days after employee
receives 104 weeks of
temporary total disability
• Impairment rating <50
percent
• Modification Petition filed
• Litigation before WCJ where
employer must prove
through credible, competent
evidence that impairment
rating is less than 50 percent

7. Challenging change of status
Within 60 days
• Employee has an
immediate right to seek
review of the IRE
determination on any
basis if the appeal is filed
within 60 days after
receipt of the notification
of change in status
Beyond 60 days
• Employee can only seek
review of the IRE
determination through
litigation and the
presentation of evidence
establishing that his/her
impairment rating is now 50
percent or more
• Must occur prior to
expiration of 500 weeks of
temporary partial disability

8. Use of the AMA Guides
• The Act dictates that the degree of impairment
shall be determined based upon an evaluation
performed by a qualified physician pursuant to
the “Most Recent Edition” of the AMA Guides
to the Evaluation of Permanent Impairment.
• When IRE provisions were adopted by the PA
Legislature, the 4th edition of the AMA Guides
was in use.

9. Use of AMA Guides
• The 6th edition is currently the most recent edition
of the AMA Guides and the one that has been used
to perform IREs since 2007.
• Many found the 6th edition to be particularly
employer friendly and as such, various state
legislatures acted affirmatively in declining to adopt
its new standards.
• Others states, including PA, saw numerous court
challenges to the use of the 6th edition and the IRE
process in general.

10. Protz Decision
• On September 18, 2015, the Commonwealth Court issued an Opinion
in Protz v. WCAB (Derry Area School District), 2015 Pa. Commw. LEXIS
404. Four judges formed the majority while three others dissented
from the Court’s ruling.
• The Court concluded that the portion of the Act which requires the use
of the “Most Recent Edition” of the AMA Guides was an
unconstitutional delegation of Legislative authority.
• Thus, the Court vacated the decision below and remanded the matter
to allow the WCJ to resolve the matter under the 4th edition of the
Guides.
• Because the case involves a constitutional argument with significant
implications , it is anticipated that the Supreme Court will accept the
employer’s appeal when filed.

11. What Protz did not do:
• The Protz Decision did not void the entire impairment rating system,
only certain methodology to determine the degree of impairment.
• The Protz Court did not specify how the new rule will be applied.
• New rules can be applied with:
-Purely prospective application limited to new cases
-Retroactive application limited to only the case in which the rule is
announced
-Retroactive application limited to all cases pending when the new rule is
announced
-Retroactive application to pending and finalized cases

12. Appeal
We expect appeals to the Pennsylvania Supreme
Court by the Employer and the Employee to address:
• The constitutionality of IRE methodology using
5th and 6th editions of AMA Guides.
• The constitutionality of the IRE system using any
version of AMA Guides.
• The extent of retroactive application of new
rules.
Until a final decision there will be much uncertainty.

13. Where do we go from here?
Recommended responses by employer’s/insurer’s will depend upon the
IRE/change of disability status.
Category One – Finalized changes by WCJ decision without appeal or affirmed
upon appeal, unchallenged Notice of Change in WC Disability Status, or status
change by Supplemental Agreement.
• Expect Petitions for Review and Reinstatement (of total disability
status) by injured workers.
• Respond with a Motion to Dismiss the Petition making the primary
arguments that: The right to challenge the IRE change of status has been
waived or lost over the course of concluded litigation. Protz has not been
given retroactive effect in a similar case decided on the same day. See
Winchilla. Protz should not be given full retroactive application under the
factors cited in Blackwell v. State Ethics Commission, 589 A.2d 1094 (Pa.
1991).

14. Where do we go from here?
Category Two – In litigation change of status matters on an Employer Petition for
Modification, an injured worker’s challenge or an appeal with no final decision.
• Expect motions for dismissal of the employer’s petition and motions to grant
the employee’s challenge to 5th and 6th edition change of status Notices.
• Employers should request a stay of the litigation to preserve the IRE date and
avoid continued litigation until the appropriate standard is clearly identified
by the Pa. Supreme Court.
• If a stay is denied, the Employer should request leave to have the IRE
physician provide a supplemental report rating the impairment per the 4th
edition AMA Guides, if he is certified to do so.
Category Three – Pending IREs, just completed, just requested or to be requested.
• The Employer/Insurer should request that the IRE be done using both the 4th
and 6th edition (or most recent) AMA Guides.

15. Issues
• Is the Bureau designated physician who performed the 5th or 6th
edition IRE also trained and Bureau certified to perform 4th edition
IREs?
• Will the Bureau retrain and recertify physicians to perform 4th edition
IREs?
• Will supplemental reports applying 4th edition impairment ratings by
physicians who examined and applied other edition ratings be
accepted by the Bureau and WC Judges?
• Will another examination be necessary for a 4th edition IRE?
• If an examination is necessary will WC Judges compel the examination
if the employee refuses?
• Are psychological and pain conditions ratable under the 4th edition?

16. Rumors
• The Bureau is directing physicians to use 4th edition Guides for new IREs.
However, we believe physicians should use both 4th and 5th edition Guides in case
Protz is reversed.
• The Bureau has scheduled retraining per 4th edition Guides.
• The Bureau will publish a list of physicians trained in the 4th edition Guides.
• Physicians who performed 5th and 6th edition IREs are issuing supplemental
reports rating impairments per the 4th edition Guides without new examinations.
• WC Judges opinions on how to apply Protz vary greatly.
• One Judge has dismissed without prejudice a Petition for Modification based
upon an IRE using 6th edition Guides.