No Requirement to Prove Job Availability or Earning Power in "Late Requested" IRE.
On April 22, 2009, in Diehl v. WCAB (IA Constr. & Liberty Mut. Ins.) , 972 A.2d 100, the Commonwealth Court determined that even though an employer’s request for an Impairment Rating Evaluation (IRE) was beyond the 60-day window following the expiration of 104 weeks of total disability benefits, it was still entitled to pursue a petition to modify the claimant’s benefit status from total to partial without having to prove either job availability or earning power. This decision represents a reversal of the Court’s previous ruling in this case.
In Diehl, the IRE evaluation determined that the Claimant had an impairment rating of 28% (i.e., well below the 50% impairment threshold for change of status to “partial” disability). However, the employer requested the IRE well beyond the 60-day window. Upon receipt of the IRE determination, the employer then sought to unilaterally modify the claimant’s disability status from one of total disability to partial disability. The Claimant argued that the employer could not prevail by merely proving an impairment of less than 50%, but was also required to show evidence of job availability and/or earning power.
In its April 2008 decision, the Commonwealth Court agreed with the Claimant and indicated that employers who seek to show that a claimant is no longer temporarily totally disabled must prove their case by not only establishing an impairment rating of less than 50%, but also through vocational rehabilitation proof. Specifically, an employer cannot unilaterally shift a claimant’s benefits from TTD to PPD upon a showing of an impairment rating below 50%, but must also demonstrate job availability or restored earning power. However, in its revised decision, the Court held that “under the Act, an employer seeking to change a claimant’s benefit status using results of an IRE requested outside the 60-day window must obtain an agreement from the claimant or an adjudication that the claimant’s condition improved to an impairment rating less than 50 percent. Proof of earning power and job availability is not required.”
