Earning Power is not decisive in IRE process
June 21, 2022
By John W. Zatkos, Jr. Esquire
Angela DiPalolo was injured in 2008 and was on temporary total disability until 2011. An IRE (impairment rating evaluation) determined that she was only partially disabled and reduced her benefits. In 2017, the Pennsylvania Supreme Court found Section 306(a.2), which tied IREs to American Medical Association (AMA) guidance, unconstitutional and struck it from the Workers’ Compensation Act. (See our previous article “Section of PA Workers Comp Act Found Unconstitutional”). Ms. DiPaolo sought and got back her temporary total disability status.
The PA General Assembly passed Act 111 of 2018, which brought back tying IREs to a particular edition of AMA’s standards (emphasis added). Ms. DiPaolo’s employer sought a new IRE and successfully cut her back to partial disability status again.
In DiPaolo v. UPMC Magee Women’s Hospital, the injured worker claimed that Act 111 violated her Constitutional right to due process and that the law also violated Article III, Section 18 of the PA Constitution which says the General Assembly may enact laws requiring employers to pay injured workers “reasonable compensation for injuries…arising in the course of their employment.”
The panel disagreed with the injured worker. “This court has consistently held that Act 111 does not abrogate or substantially impair a claimant’s vested rights in workers’ compensation benefits because there is no right to ongoing [temporary total disability] status,” Judge Fizzano Cannon wrote. “The former IRE provision allowed for modification under with an earning power or IRE mechanism and that an employer is free to prove one or the other. However, the employer need not prove both earning power and level of impairment to effect a change in the claimant’s disability status.”
What does this mean? Earning Power is not the only way to weigh an injured worker’s disability. Under current Pennsylvania law, the employer can reduce benefits based on a doctor’s IRE.