Before Labor Market Surveys (LMS)/Earning Power Assessments (EPA), workers’ comp insurance carriers in PA used to actually have to prove a specific job was available to an injured worker in order to modify or suspend workers’ compensation benefits. This changed in the 1996 amendments to the Pennsylvania Workers’ Compensation Act, but any injured worker who was hurt before the amendments took place continues to fall under the “Old Act.”
In those cases, and even in LMS/EPA cases these days, the litigation starts with an Independent Medical Examination (IME), better, and more accurately, known as a “Defense Medical Examination.” Once some doctor releases the injured worker to some kind of work, the workers’ comp insurance carrier can start the vocational process (whether that be LMS/EPA, or the “Old Act” job referrals). But, when is a medical release too old, or stale, to be used?
In Verizon Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Guyders), the Commonwealth Court of Pennsylvania addressed this issue. This was an “Old Act” case, so the injured worker was sent on 73 job referrals (yes, you read that right, 73 – apparently, the workers’ comp insurance company does not know the meaning of the word “overkill.”)
The workers’ compensation insurance carrier filed a Petition to Modify or Suspend, based on the 73 job referrals. All were approved by the IME physician, who saw the injured worker, just one time, in 2003. Over the time from 2003 to 2006, the 73 jobs were referred to the injured worker. The vocational expert hired by the injured worker said a medical examination becomes outdated in six months to a year. The Workers’ Compensation Judge (WCJ) found both Claimant and her vocational expert credible, and dismissed any job referrals made more than six months after the date of the IME. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).
On appeal, the Commonwealth Court of PA reversed. Though the Court agreed the WCJ is the ultimate finder of fact (and determiner of credibility), the Court then, in effect, dismissed the WCJ’s determination of credibility regarding the injured worker’s vocational expert. The Court found that there is no standard that an IME is outdated or stale after six months, and that an opinion of a vocational counselor otherwise was outside his scope of expertise.
Respectfully, we must disagree. The opinion of the claimant’s vocational counselor was offered not as a medical expert, but as a vocational expert. If that opinion was that a medical examination needs to be within six months to a year of the job referrals, in his vocational opinion, that, to us, is a valid vocational expert’s opinion. Once found by the WCJ to be credible, we believe, the Court had no right to usurp the authority of the WCJ in this respect. The Court also chided the WCJ for taking the six month end of the statement, when the vocational expert said six months to a year. Again, the law in PA is clear that a WCJ can accept the testimony of any expert, in whole or in part. It is bad enough the legislature appears determined to narrow the workers’ comp system unfairly in PA, for the Courts to follow suit is a real shame.