Advertising Disclosure Email Disclosure

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

Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2017 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.

Affiliated Attorney

Francis X. Wickersham
Shareholder
(610) 354-8263
fxwickersham@mdwcg.com

Practice Areas

Before you send this email please note:

You are attempting to send email, through a link on our website, to an attorney of Marshall Dennehey Warner Coleman & Goggin or an employee in our firm. Please note that your email may not be treated as confidential and does not create an attorney-client relationship. You should not rely upon the transmission of an email through this website if you are seeking to enter into such a relationship. Until such time as we have agreed to represent you, no information in your email will be treated as confidential. Please contact us directly by telephone at 1.800.220.3308 if it is your intent to seek legal counsel with our firm or convey confidential information.

If it is still your intent to send this email, knowing that it may not be treated as confidential, you may accept our terms of agreement by pressing "OK". If you choose not to accept these terms of agreement you may navigate away from this page by pressing "Cancel."