In I.A. Construction Corp. and Liberty Mutual Insurance Co. v. WCAB (Rhodes), No. 18 WAP 2015, decided on May 25, 2016, the Workers' Compensation Judge (WCJ) denied the employer's modification petition to reduce the employee to a partial status based on the Impairment Rating Evaluation (IRE) evidence of a 34 percent whole body impairment. In doing so, the WCJ took issue with the grouping of a multitude of injuries previously determined into three diagnostic groups and found the IRE physician (board certifications in physical rehabilitation and pain management) unpersuasive in his superficial evaluation of the brain injury and cognitive deficits. The WCJ also found the IRE doctor unpersuasive since he was not an expert in neurology. The employee did not testify and did not present opposing IRE evidence. Therefore, the employer's evidence was un-contracted.
The employer appealed to the Workers' Compensation Appeal Board (WCAB) which affirmed the WCJ's decision in a divided opinion. On further appeal to the Commonwealth Court, the WCJ was reversed since grouping of employee's injuries into three diagnostic areas was not determined to be improper under the American Medical Association Guides and that the WCJ lacked authority to reject the IRE doctor on the basis that the brain injury was outside his specialization. Furthermore, the WCJ's opinion as to the insufficiency of the IRE could not prevail without evidence in the record demonstrating a violation of the AMA Guides or an erroneously calculated impairment rating.
The Pennsylvania Supreme Court granted the employee's request for allowance of appeal raising issue with the Commonwealth Court's failure to recognize the WCJ's fact finding function and credibility determinations. The Court ordered the underlying decision by the WCJ reinstated and reversed the Commonwealth Court. Therefore, the Court determined that the WCJ properly rejected the IRE evidence and denied the employer's modification petition seeking a partial disability status.
As to the merits of the employee's appeal, the Court first discussed the fact finding powers of the WCJ based on credibility determinations and noted that this function is held in check by the appellate review process which will not allow a capricious rejection of un-contracted evidence as well as the requirement that the WCJ's issue a developed and reasoned decision.
The Court agreed that the WCJ's rejection of the IRE physician's evidence on the basis of improper grouping of injuries is not compelling without a determination of a violation of the AMA Guides. In addition, the Court agreed that the WCJ's conclusion that an IRE evaluates all injuries initially listed by a prior judicial determination ignores the requirement of the Workers' Compensation Act that the IRE address the current condition of an employee's injuries which can change for the better.
The Court focused on the WCJ's rejection of the IRE doctor's evidence as being unpersuasive due to the superficial evaluation of the brain injury and the fact that the doctor did not have expertise in neurology. The Court agreed with the WCJ despite the fact that the Workers' Compensation Bureau, and not the employer, designated the IRE physician and the Bureau, not the employer, had vetted the physician as being qualified to perform an IRE under the WCA and the AMA Guides.
Comment: Although the legislators may review the need for reforming the IRE provisions of the WCA as recommended by the Court, we predict such change will not occur quickly if at all. Meanwhile there remains the need, at times, for a specialist to evaluate an employee with an injury beyond the expertise of the designated IRE doctor. We recommend, as the Court suggests, that when requesting an IRE physician designation that the Workers' Compensation Bureau be informed of the need for a specialist or specialists so that appropriate evaluations of all conditions are adequately addressed. We predict the Bureau will not depart from its current designation practice based on the wording of the Workers' Compensation Act. However, once you are advised of the designated physician, there is no prohibition to an employer communicating with the IRE doctor to impress upon him or her the need to refer an employee to a specialist, especially when a brain injury is involve d, to insure proper evaluation of the rating to be assigned. This specialist must also be qualified to conduct the IRE by the Bureau and will report back to the designated IRE physician who will then prepare the whole body impairment rating. The Bureau maintains a list of qualified IRE doctors and this list can be reviewed and used for recommendations.