§ 123.105. Impairment rating determination.

 (a)  When properly requested under §  123.102 (relating to IRE requests), an IRE shall be conducted in all cases and an impairment rating determination must result under the most recent edition of the AMA ‘‘Guides to the Evaluation of Permanent Impairment.’’

 (b)  To ascertain an accurate percentage of the employee’s whole body impairment, when the evaluating physician determines that the compensable injury incorporates more than one pathology, the evaluating physician may refer the employee to one or more physicians specializing in the specific pathologies which constitute the compensable injury. Any physician chosen by the evaluating physician to assist in ascertaining the percentage of whole body impairment shall possess the qualifications as specified in §  123.103(a) and (b) (relating to physicians). The referring physician remains responsible for determining the whole body impairment rating of the employee.

 (c)  The physician performing the IRE shall complete Form LIBC-767, ‘‘Impairment Rating Determination Face Sheet’’ (Face Sheet), which sets forth the impairment rating of the compensable injury. The physician shall attach to the Face Sheet the ‘‘Report of Medical Evaluation’’ as specified in the AMA ‘‘Guides to the Evaluation of Permanent Impairment.’’ The Face Sheet and report shall be provided to the employee, employee’s counsel, if known, insurer and the Department within 30 days from the date of the impairment evaluation.

 (d)  If the evaluation results in an impairment rating of less than 50%, the employee shall receive benefits partial in character. To adjust the status of the employee’s benefits from total to partial, the insurer shall provide notice to the employee, the employee’s counsel, if known, and the Department, on Form LIBC-764, ‘‘Notice of Change of Workers’ Compensation Disability Status,’’ of the following:

   (1)  The evaluation has resulted in an impairment rating of less than 50%.

   (2)  Sixty days from the date of the notice the employee’s benefit status shall be adjusted from total to partial.

   (3)  The adjustment of benefit status does not change the amount of the weekly workers’ compensation benefit.

   (4)  An employee may only receive partial disability benefits for a maximum of 500 weeks.

   (5)  The employee may appeal the adjustment of benefit status to a workers’ compensation judge by filing a Petition for Review with the Department.

 (e)  If the evaluation results in an impairment rating that is equal to or greater than 50%, the employee shall be presumed to be totally disabled and shall continue to receive total disability compensation. The presumption of total disability may be rebutted at any time by a demonstration of earning power in accordance with section 306(b)(2) of the act (77 P. S. §  512(2)) or by a subsequent IRE which results in an impairment rating of less than 50%.

 (f)  At any time during the receipt of 500 weeks of partial disability compensation, the employee may appeal the adjustment of benefit status to a workers’ compensation judge by filing a Petition for Review.

Notes of Decisions

   Presumption of Total Disability Can Be Rebutted

   Employer may seek to change claimant’s status based on an independent medical examination and earning power assessment, even where an impairment rating evaluation determined claimant to be at least 50% impaired; an impairment rating of 50% fixes a presumption of total disability status, but it is a presumption that can be rebutted by evidence that the claimant can perform some work. Sign Innovation v. Workers’ Compensation Appeal Board (Ayers), 937 A.2d 623, 626 (Pa. Cmwlth. 2007).

   Conflict with statute

   Because Section 123.105(f) permits a workers’ compensation claimant to appeal the adjustment of benefit status at any time during the 500-week period of partial disability without restriction, it is invalid, as Section 306(a.2)(4) of the Act (77 P. S. §  511.2(4)), imposes the requirement that there be a determination that the claimant’s impairment is equal to or greater than 50 percent in order for the claimant to appeal the adjustment of benefit status at any time during the 500 weeks of partial disability. Johnson v. Workers’ Compensation Appeal Board (Sealy Components Group), 982 A.2d 1253 (Pa. Cmwlth. 2009).



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