Here, the Commonwealth Court reaffirmed a principle that it has articulated in the past with regard to pension offsets against workers’ compensation benefits. Again, the Court held that the employer was entitled to an offset to the extent that it funded the claimant’s pension and that an actuarial analysis is sufficient to demonstrate the amount of the offset.

Impairment Rating Evaluation (IRE):

Diehl v. Workers’ Compensation Appeal Board (IA Construction), A.2d (Pa. Cmwlth., 1507 C.D. 2007, filed April 22, 2009).

Preciously, the Commonwealth Court held in this case in a decision that was eventually vacated that when an employer requests an IRE beyond the 60-day window - which is also called a non-self-executing IRE - it is required “to satisfy either the traditional Kachincki work availability analysis and concomitant burden, or the traditional analysis and burden required under a Labor Market Survey approach.” Diehl v. Workers’ Compensation Appeal Board (IA Construction.) (Pa. Cmwlth., No. 1507 C.D. 2007, filed on April 28, 2008), vacated by (Pa. Cmwlth., No. 2168 C. D. 2005, filed on June 24, 2008).

In its new decision, the Commonwealth Court held that earning power does not have to be demonstrated in a situation involving a non-self-executing IRE because 306(a.2) (5), P.S.§511.2, does not require the demonstration of the job availability.

Ford Motor/Visteon Systems v. Workers’s Compensation Appeal Board (Gerlach). A2d (Pa. Cmwlth. 1944 C.D. 2008, filed April 1, 2009).

With regard to a non-self-executing, Gardner type IRE, the Court held that the date that the benefits are modified from total to partial, occurs on the day that the IRE was issued. Notably, in self-executing IREs, the change occurs on 60 days after the claimant is notified via a Notice of Change of Workers’ Compensation Disability Status/LIBC 764 form is filed with the Bureau. The Court created this scheme by reasoning that 34 Pa. Code 123.105(d) is not applicable to non-self-executing IREs. The panel also rejected the language in Section 306(a.2)(5) that“total disability shall continue until it is adjudicated or agreed under clause (b) that total disability has ceased or the employee’s condition improves to an impairment rating that is less than fifty per centum.”

Instead it held “when Employer pursues a modification of disability to partial disability through the traditional administrative process, the effective date of modification should be the date of the IRE physician’s examination.” (emphasis in original).

In light of the holdings, practitioners are being given conflicting messages about what standards apply modification petitions based on IREs. In Diehl, the petition is not subject to traditional administrative process, i.e., job availability and in Gerlach, the petition is subject to traditional administrative process, i.e., date of the change in disability.

By Leah Cilo, Esq., is with Martin Banks Pond Lebocky & Wilson in Philadelphia

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