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Commonwealth Court denies motion to vacate 2003 Impairment Rating Evaluation.

April 1, 2017
Susan Riley v. WCAB (Commonwealth of Pennsylvania); No. 238 C.D. 2016; Filed Dec. 8, 2016; Judge Hearthway

The claimant’s August 2000 work-related injuries were acknowledged in a Notice of Compensation Payable. In 2003, the IRE physician gave the claimant a 21% impairment rating, using the 5th Edition of the American Medical Association guides. In August 2012, the claimant filed a petition to review to add injuries to the NCP and alleging the IRE physician failed to consider the full extent of her work injuries. The Workers’ Compensation Judge denied these petitions, and the claimant appealed to the Workers’ Compensation Appeal Board. In October 2015, while her appeal was pending, the claimant filed a motion with the Board to vacate the 2003 IRE based on Protz v. WCAB (Derry Area School District); 124 A.3d 406 (Pa. Commw. 2015, appeal granted by 133 A.3d 733 (Pa.2016). The Appeal Board affirmed the judge’s decision and denied the claimant’s motion because she failed to challenge the 2003 IRE within the necessary 60-day period set forth in Section 306(a.2) and failed to present evidence of a new impairment rating of more than 50%. The claimant appealed to the Commonwealth Court, arguing the Board erred by failing to vacate the 2003 IRE. The court affirmed the Board, holding that Protz was not controlling. In Protz, the claimant appealed the IRE within 60 days of the notice adjusting the claimant to partial disability status, whereas in this case, the claimant waited 10 years after the notice to challenge use of the 5th Edition of the AME guides. According to the court, this constituted a waiver to challenge the 2003 IRE determination.


Case Law Alerts, 2nd Quarter, April 2017

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