Tuesday, June 17, 2014

The Employer's Impairment Rating Evaluation (IRE) Remedy ... STILL the best remedy

The 1996 Amendments to the Pennsylvania Workers' Compensation Act, provided Employers and Insurers with a remedy to limit the "lifetime" duration of indemnity wage loss benefit payments.

The Impairment Rating Evaluation (IRE)provisions allowed the limitation of the duration of wage loss benefits to a period of 500 weeks. There were several requirements to obtain a successful review.

Employees have argued each point, in their attempts to prevent or limit this remedy.

One criteria, the Employee must reach "Maximum Medical Improvement" before the IRE may be conducted. This is a "term of art" which is defined by the AMA Guides to the Evaluation of Permanent Impairment. 

Arvilla Oilfield Services Inc. v. WCAB (Carlson), No. 1578 C.D. 2013, a reported panel decision of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on May 20, 2014, recently reviewed these IRE issues.

Factual and Procedural Background

[NOTE: This case has an interesting inter-play in the filing of successive, concurrently pending petitions and the corresponding proofs. A good argument for NOT consolidating petitions ... a discussion for another day.
Here, we will keep it a "simple" IRE case]

Employee injured his right hip, right shoulder and low back in July 2004.
NCP accepted liability and described theses injuries as labral tear of the right hip, with strains/contusions of the right shoulder and low back.

Employee had subsequent right hip surgeries: 2004 arthroscopy ; 2005 total hip replacement; which were were found to be work related [WCJ decision 2007].

Employer filed a 2009 Modification petition [not a Termination petition] in December 2009, asserting Employee fully recovered from the low back and right shoulder injuries ... but not the hip injury.
(Dr. Levy October 2009 IME).
( a good strategy for limiting future medical expense disputes).

Employee medical expert Dominic M. Sciamanda, D.O. testified the post-injury abnormal gait caused the pre-existing lumbar degenerative disc disease to become symptomatic. Also, he attributed some of the back pain to the hip condition. He attributed the lumbar radiculopathy to the work injury.

The goal of Dr. Sciamanda's treatments was to reduce pain, increase mobility, range of motion and function.
He had not released employee to any type of work.
 "He certainly has setbacks at times, where we have to kind of back track and move forward. Again, however, overall he seems to be making progress".

Based upon this medical testimony ...
Employee filed a Petition to Review Compensation Benefits and "add" lumbar radiculopathy and lumbar spondylosis to the NCP. A worsening of employee's condition was alleged.
[a recurring employee strategy, to change/expand the description of the work injury].

Employer medical expert, Jon A. Levy, M.D. testified employee had a significant pre-existing lumbar degenerative disc disease, which resulted in significant pre-injury pain complaints.
Based upon comparison of 2004 and 2006 MRI's he found not evidence the work injury changed the pre-existing changes. He related the ongoing lumbar symptoms to the pre-existing medical condition.
Dr. Levy opined employee recovered from the work related strains to the shoulder and low back.
Dr. Levy also opined employee reached MMI regarding the hip condition.

An IRE was conducted on June 3, 2010, during the pendency of Employer's Modification petition and Employee's Review petition. Jefferey M. Moldovan, D.O., found a 10% whole person impairment rating.

A Petition for Modification of employee disability status from total to partial was filed.
This 2nd Modification was consolidated with the pending petitions.

Dr. Moldovan testified employee was at MMI.
He demonstrated an altered gait and reported right hip discomfort.
Employee expressed no symptoms regarding the right shoulder or low back.That physical exam was normal.

Employee presented NO medical evidence in opposition to the IRE report.

WCJ Decision

1.Employee was fully recovered from the right shoulder stain. Dr. Levy was credible on this point.

2. Employee did not fully recover from the low back strain, as Dr. Levy did not address the effect of the hip injury and altered gait, upon the low back condition.

3. Employee's Review Petition was denied. The work related condition was not expanded to include lumbar radiculopathy and lumbar spondylosis (degeneration). Dr. Sciamanda was rejected.

4. WCJ rejected Dr. Moldovan's opinion employee had reached MMI and denied this Modification petition.

WCJ Reasoning

" According to Dr. Sciamanda's testimony, the claimant is continuing to make progress and he continues to have setbacks at times. Dr. Moldovan's opinion that the claimant is at MMI because [he] is "as good as he is going to get" is not supported by the treatment records". 

Commonwealth Court Reversal 

Employer appealed the denial of the IRE Modification petition.

Employer argued:

a. There was not substantial medical evidence in support of the finding that employee had failed to reach MMI at the time of the IRE (June 2010).

b. The one phrase by Dr. Sciamanda was speculative and taken out of context.

c. Dr Sciamanda DID NOT opine whether or not employee had reached MMI ... his most recent exam was months before the IRE was performed.

d. Dr. Sciamanda only testified in the defense to the employer argument for recovery and in support of employee's argument to expand the work injury description.

Employee argued, the WCJ assessment of the medical evidence was a credibility determination for the WCJ to decide.

Commonwealth Court Reasoning -

 "... Dr. Sciamanda did not testify on the issue of MMI.
Further, it cannot be inferred from Dr Sciamanda's deposition that employee had not reached MMI on the day Dr. Moldovan examined him". slip opinion page 10.

MMI is a term of art.
The AMA Guides definition was reviewed.
MMI is not the same as "full recovery".

The testimony of Dr. Sciamanda, cited by the WCJ, does not support any finding regarding MMI.
Dr. S last examined employee in February 2010. The IRE was June 2010.

Dr. S was providing palliative care to manage employee's symptoms.
Palliative measures are consistent with a finding of MMI.

Dr. S was treating employee for conditions which the WCJ did not add to the injury description!
Only impairment from the work injury is included in the assessment of MMI and impairment rating.

Dr. Moldovan's exam and testimony were compatible with the AMA Guides description of the MMI term.
Dr. Moldovan presented the only legally competant medical opinion regarding the presence or absence of MMI.

A WCJ may reject controverted competent evidence.
However the WCJ " must identify that evidence and explain adequately the reasons for its rejection.
See: Section 422(a)

For this reason, the order of the WCAB was vacated and the case was remanded back to the WCJ for further findings on this critical issue.  If Dr. Moldovan is to be rejected, there must be an adequate explanation.


1. When dealing with multiple petitions, with different burdens of proof, take care to outline your litigation plan and identify the evidence which supports each element of your burden of proof. 

2. Similarly, when reviewing your defense to each employee petition. assess the evidence offered in support of each employee petitions and your evidence/argument in opposition. 

3. An essential element in the IRE burden of proof is the employee status as "MMI". We see frequent attacks upon the IRE Modification Petition Remedy, based upon the argument that employee is not at MMI, as his/her condition may improve ... or his/her condition may decline.

4. Have your medical expert testify and explain the MMI definition and provide specific reasons why the claimant is at MMI. 

5. Challenge any employee medical expert evidence offered in "defense" to the IRE Medical expert, which did not conduct an examination in accord with the AMA Guides. 

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