In a Commonwealth Court Opinion handed down today, written by Judge Dumas, (No. 1010 CD 2021), the Court affirmed a Workers’ Compensation Appeal Board and WCJ Decision that granted Employer’s Petition to Modify based on an IRE (Impairment Rating Evaluation) done per Act 111 for an injury that pre-dated the passage of Act 111. The Court, by doing this, noted the case is controlled by Pierson v. WCAB (252 A3d. 1169) (Cmwlth, PA 2021).
In Wescoe v WCAB, the case at hand, Claimant injured his back on September 8, 2011. On November 5, 2019, Employer filed a Petition to Modify based on an IRE that found a whole body impairment of 13%. Remember, after receipt of 104 weeks of TTD, an insurer can request an IRE- now performed under Act 111 which requires the 6th Edition of the AMA Guides and which reduced the threshold from 50% to 35%. The idea of an IRE in Pennsylania is to get an injured workers’ benefits to a partial status- and once on a partial, there is a 500 week limit/cap. It’s a way to limit their exposure on the wage loss end- and to see the proverbial light at the end of the tunnel.
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The Claimant tried to argue that Act 111 cannot be retroactively applied because it represents a substantive, not procedural, change in the law and by applying Act 111 to injuries that pre-date the enactment would impair his vested disability rights in violation of the Remedies Clause. (of the PA Constitution) The Commownealth Court, however, said that this is not a vested right. Again, they noted, that the Pierson case is directly controlling here. (see Opinion for more discussion about vested right concept)
This isn’t a great Opinion for injured workers, but it’s not the first on this issue. I agree with the Claimant’s arguments here, but unfortunately the Court isn’t seeing this the same way.
