Back in June, 2015, we discussed the Commonwealth Court decision in Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.). In this decision, which confounded us at the time, the Court said that an injured worker could not successfully expand the description of his or her work injury after an Impairment Rating Evaluation (IRE) was performed.
Recently, however, this decision was reversed by the Supreme Court of Pennsylvania. Though the basis was not that suggested by the injured worker, the Supreme Court found that the IRE in this case was not valid. Essentially, the Court said that, under the American Medical Association (AMA) Guides (the books which dictate permanent impairment in PA), the doctor who performs the IRE must determine the level of impairment. The mere fact that the impairment in this case was both physical and psychological, though only the physical was accepted, does not change this requirement. Because, said the Court, the psychological impairment stemmed from accepted physical injury, such impairment had to be considered or dismissed by the physician conducting the IRE. Instead, the IRE physician testified that he was not asked to, nor was he capable of, opining on psychological impairment. As such, the Court found the IRE not valid, reversing the decision of the Commonwealth Court of Pennsylvania.
This decision was a 5-2 split, with two different Justices rendering dissenting opinions. Though the reasons and arguments vary between the two dissents, the overriding theme of both seems to be that the psychological injury was not accepted, and, thus, should not have been part of the “impairment rating” as related to the accepted work injury.
Neither of the dissents appear to consider that, in the way they view the IRE process, an injured worker would never have an opportunity to challenge whether the IRE included the entire work injury. As it stands now, such a challenge can only be made by an injured worker within 60 days. After that time, an IRE can only be overturned by an opinion that the injured worker is more than 50% whole body impaired (a ridiculously high standard). The dissent seems to forget this clear advantage to the insurance carrier (the same insurance carrier who unilaterally decides how to describe the accepted injury).
Interestingly, the dissents openly recognize that there are pervasive “errors” in how the insurance carriers describe work injuries, quite often minimizing severe injuries. For example, we rarely see “herniated lumbar disc” on a Notice of Compensation Payable (NCP). Instead, we see “low back strain,” even if an MRI has already been done to show the true injury. To have this corrected, an injured worker would have to obtain an attorney, who would then litigate an entire case to correct the description of injury. As a practical matter, since an attorney would start to take a fee, due to the work involved in this kind of litigation, most injured workers hesitate to go this route. Again, something I am not sure the dissents understand.
The view espoused by the majority encourages an insurance carrier to fairly and completely describe an injury (even if an amended NCP is later required). The dissents fail to consider a situation, not uncommon, where an injured worker comes to us only after an IRE has been done. In the view of the dissents, it is irrelevant if the IRE did not examine the full work injury for which the injured worker has been regularly receiving treatment. To allow this would only encourage insurance carriers to under describe injuries, in hopes such conduct is not challenged. I cannot imagine this is an appropriate result for an Act described as one for humanitarian objectives.