January 04, 2006 : Peter J. Weber Earns Victory for Workers' Compensation Defense Community in PA Supreme Court Appeal

In ruling on an appeal briefed and argued by Weber Gallagher Chairman Peter J. Weber, the Pennsylvania Supreme Court has provided relief to employers and insurance carriers who do not request an impairment rating evaluation (IRE) within the 60-day window following a claimant’s receipt of 104 weeks of temporary total disability benefits.  The request can now be made at any time and, if the rating is less than 50 percent, a petition can be filed to change the claimant’s disability status from total to partial. 

Accordingly, in Gardner v. WCAB (Genesis Health Ventures), decided on Dec. 28, 2005, the Supreme Court reinstated the ability to cap such claims at 500 weeks of future benefits at the temporary total disability rate even if the 60-day window is not satisfied.  As a result, claimants will be forced to obtain IREs to defend against petitions and expend the funds needed for the exams.  In most cases, claimants and their counsel likely will not undergo IMEs when it is obvious that they can not achieve an impairment rating of 50 percent or greater, which would be the case in a vast majority of claims (since the impairment rating guidelines are, for the most part, objective). 

Although the Court upheld the lower court’s holding that the 60-day period is mandatory, the Court’s holding eliminates only the ability to unilaterally change the claimant’s status once the impairment rating is obtained.  In other words, if the 60-day deadline is adhered to, the change can still be made unilaterally by the employer or its carrier or third-party administrator.  If the 60-day deadline is not adhered to, the employer’s remedy to achieve the 500-week cap is via the administrative process, as described above.  Thus, missing the 60-day window no longer means that the ability to change claimant’s status from total disability to partial disability (via this method) is lost forever. 

Mr. Weber was retained to participate in preparing the Petition for Allowance of Appeal to the Supreme Court and the subsequently filed brief.  Mr. Weber also served as co-counsel for the employer, Genesis Health Ventures, at oral argument.

File Under: Firm News, Workers' Compensation, Peter J. Weber