• The Expansion of Claimant’s Injuries by Judge’s Decision Granting a Review Petition Does Not Negate the Validity of a Prior Ire that was Not Challenged Within 60 Days
  • April 3, 2014 | Author: Francis X. Wickersham
  • Law Firm: Marshall Dennehey Warner Coleman & Goggin, P.C. - King Of Prussia Office
  • Gregory S. Wingrove v. WCAB (Allegheny Energy); 1151 C.D. 2013; filed 1/3/14; by Judge Leavitt

    After the claimant sustained a work-related injury that was acknowledged by the employer, the employer issued a notice of change of workers’ compensation disability status to the claimant, based on the results of an IRE which found the claimant to have a whole body impairment of 11 percent. Four years later, in an attempt to challenge the IRE, the claimant filed a review petition to amend the description of injury contained in the NCP issued by the employer. The claimant also filed a review petition challenging the results of the IRE because it did not take into account the additional injuries. Later, the claimant filed a third review petition, alleging that the lumbar fusion surgery performed rendered him more than 50 percent disabled pursuant to the AMA Guidelines. The parties then agreed in a supplemental agreement that the claimant became totally disabled as of the date of surgery, but for a limited period. The parties also agreed that the execution of the supplemental agreement would have no effect on the pending petitions.

    The Workers’ Compensation Judge granted the claimant’s review petition to expand the description of the work injury in the NCP, and those conditions were added. But, the Judge also concluded that the expansion of the injuries did not negate the validity of the IRE performed in 2005. Furthermore, the Judge found that the supplemental agreement did not render the 2005 IRE a nullity simply because it reinstated total disability benefits for a closed period. According to the Judge, it was the claimant’s burden to prove that the additional injuries established a whole body impairment in excess of 50 percent. The Appeal Board affirmed the Judge’s decision.

    On appeal to the Commonwealth Court, the claimant argued that the supplemental agreement proved that he was at least 50 percent disabled following his surgery and that, although the agreement placed him back on partial disability status, this was based on the original NCP that was later expanded by the Judge’s decision. According to claimant, once that was established, it was up to the employer to prove that he is less than 50 percent disabled in order to change his status. The employer responded by arguing that the 2005 IRE determination remained binding notwithstanding the supplemental agreement.

    The Commonwealth Court agreed with the employer and dismissed the claimant’s appeal. The court held that the amendment to the NCP did not render the original IRE invalid. The court further pointed out that once 60 days passed without a challenge from the claimant, the IRE became fixed and the burden, therefore, shifted to the claimant to prove that the addition of depression to the NCP rendered him at least 50 percent impaired. The court also rejected an argument made by the claimant that §306 (a.1) of the Act was unconstitutional.