IRE Must Consider All Medical Conditions “Due To” The Work Injury

As we have addressed in a previous blog post, discussing the case of City of Philadelphia v. Turner (Workers’ Compensation Appeal Board), a Workers’ Compensation Judge (WCJ) cannot allow the conditions considered by an Impairment Rating Evaluation (IRE) to be only those conditions formally accepted by the workers’ compensation insurance company.  Instead, the IRE physician must consider all conditions “due to” the work injury (in his or her medical opinion).

Just to refresh your recollection, an IRE is a tool available to PA workers’ compensation insurance carriers, which allows the status of workers’ comp benefits to be switched from “total” (for which there is no specific time limit) to “partial” (for which there is a maximum of 500 weeks available), if the “whole body impairment” (WBI) of the injured worker is found to be less than 35% (an extremely difficult standard to reach).  More detail on the IRE process can be found on our website here.

In a recent case, the Commonwealth Court of Pennsylvania faced this issue again, though in a slightly different context.  In the Turner case, the only medical evidence was the IRE physician, who was presented by the workers’ comp insurer.  Since that physician did not consider all conditions he believed to be “due to” the work injury, the Court was able to simply affirm the decision of the WCJ, and find that the insurer failed to meet its burden under the Pennsylvania Workers’ Compensation Act.

However, in Del Val Home Improvements v. John Gaw (Workers’ Compensation Appeal Board), the recent case, each side presented a medical expert.  When the insurer issued a Notice of Compensation Payable (NCP), it accepted, “injuries in the nature of lumbar, ankle, heels, pelvis, and coccyx fractures.”  The expert offered by the insurance carrier found the WBI of the injured worker to be 30%.  That doctor said he did consider all injuries he felt to be “due to” the work injury, but offered no rating for some of the injuries which he claimed were healed.

In this case, the injured worker also presented the testimony of a doctor, who found the WBI to be 41% (obviously, above the 35% threshold).  In addition to not believing the conditions were healed, this doctor also provided ratings for the neck and the hip.  After considering the evidence, the WCJ found the doctor offered by the insurer more credible than the one presented by the injured worker, and granted the Petition to Modify.  Thus, the WCJ, found that the insurance company had proven the work injury resulted in a WBI of less than 35%.

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the decision of the WCJ.  The WCAB determined that the WCJ had erroneously discredited the opinion of the doctor offered by the injured worker because that doctor included conditions which were not formally accepted.  The WCAB again emphasized that an IRE must consider all conditions “due to” the work injury, whether formally accepted or not.

The Commonwealth Court of Pennsylvania, upon further appeal, affirmed the decision of the WCAB, but also remanded the matter to the WCJ for additional findings of fact.  The Court noted that the insurer could still meet its burden of proof.   While the Court agreed that the WCJ impermissibly found the injured worker’s expert less credible simply because the doctor  “reached a rating greater than 35% by rating impairments beyond those listed in the NCP,” the Court noted that complete reversal in this case was not appropriate, as it was in Turner.

The error here, explained the Court, was the WCJ discrediting the opinion of the doctor offered by the injured worker.  Since the medical expert offered by the insurer testified that his impairment rating was not solely limited to the accepted injury, the WCJ must now consider the testimony of both doctors and resolve the difference in the varying WBI ratings.  Thus, it remains possible for the insurer to still meet its burden, unlike the situation in Turner.