****REVERSED BY SUPREME COURT OF PENNSYLVANIA ON MAY 25, 2016 – SEE UPDATED BLOG ENTRY*****
We have addressed the topic of Impairment Rating Evaluations (IREs) many times in this blog; in addition, we have recently created a page on our website explaining the IRE process in greater detail. As we have seen, both the Pennsylvania Workers’ Compensation Act, and the appellate courts, tell us that an insurance carrier who seeks a modification due to an IRE, outside the 60-day window, must prevail in the “traditional administrative process.” As the Supreme Court of Pennsylvania found (in the case of Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures) back in 2005):
” . . . the IRE becomes an item of evidence just as would the results of any medical examination the claimant submitted to at the request of his employer. It is entitled to no more or less weight than the results of any other examination. The physician who performed the IRE is subject to cross-examination, and the WCJ must make appropriate credibility findings related to the IRE and the performing physician.”
It all sounds so simple. Logic would tell us, then, that if the IRE physician is found by the Workers’ Compensation Judge (WCJ) not credible, the Petition for Modification filed by the workers’ comp insurance carrier would fail. Unfortunately, the Commonwealth Court of Pennsylvania took a sad detour from logic in the recent case of IA Construction Corporation v. Workers’ Compensation Appeal Board (Rhodes).
Here, the injured worker was found to have suffered “a traumatic brain injury with organic affective changes and persistent cognitive problems, particularly memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries.” When the IRE was later performed, the IRE physician documented just three diagnoses, “traumatic brain injury, cervical HNP status post surgery, and gait dysfunction.” The IRE physician testified that he lumped all of the accepted injuries into these three diagnoses. A permanent impairment rating of 34% was found, leading the insurance carrier to file the Petition for Modification (to change the disability status from total to partial).
Following litigation, the WCJ found the IRE physician not credible and denied the Petition for Modification. Specifically, the WCJ stated the reasons for rejecting this testimony: 1) The IRE physician lumped the many accepted diagnoses of the work injury into just three diagnoses, 2) The IRE physician did not see sufficient current records of the injured worker regarding the mental aspect, and 3) The IRE physician did not appear to be familiar enough with traumatic brain injuries, and he should have requested another opinion on this aspect. The Workers’ Compensation Appeal Board (WCAB) affirmed.
The Commonwealth Court of Pennsylvania then reversed the decision. Though the Court repeats throughout the decision that it is not the function of the Court to reweigh credibility determinations, or second guess those made by the WCJ, that appears to be precisely what the Court does.
Within the regulations, interpreting the Pennsylvania Workers’ Compensation Act, for an IRE, “the evaluating physician may refer the employee to one or more physicians specializing in the specific pathologies which constitute the compensable injury.” (34 Pa. Code § 123.105(b)). Therefore, the WCJ correctly found that the IRE physician could have referred the injured worker for a more competent evaluation, but elected not to do so. The Court found this to be error on the part of the WCJ, since the IRE physician was not REQUIRED to make this referral. This author fails to understand why this was not a proper consideration for credibility.
The Court goes on to dismiss the remainder of the bases for the credibility determination made by the WCJ, finding they “do not appear to have any basis in the record.” Again, this author fails to understand why the listing of the original diagnoses and those found and considered by the IRE physician, all of which were in the record, did not completely support the decision rendered by the WCJ. The Court notes that the WCJ cites no basis to reject the lumping of the diagnoses; one could counter that the WCJ rejected the opinion of the IRE physician that lumping was appropriate, hence a proper basis of credibility.
As attorneys who limit our practice to representing injured workers in PA workers’ compensation matters, including IRE cases, we find this decision incredibly disappointing. Here, the injured worker successfully defended against a Petition for Modification. The expert offered by the workers’ comp insurance carrier was found not credible. There really can be no circumstance where the insurance carrier then prevails.