Friday, January 16, 2015

Impairment Rating Evaluation - How does an Employee Rebut the IRE?

Employee Rebuttal Evidence to the Impairment Rating Evaluation Remedy.

The 1996 Amendments to the Pennsylvania Workers' Compensation Act provided Employers and Insurers with a decisive remedy to limit the Duration of Total Disability indemnity wage loss benefit payments. Prior to the enactment of this remedy, the obligation for payment of total disability benefits could continue for the lifetime of the injured employee, unless altered by Agreement or Decision of the Workers' Compensation Judge.

Section 306(a.2) provides Employers with the remedy to seek modification of employee benefit status from (lifetime) total disability status to partial disability status of a duration of 500 weeks.
This change of status is accomplished through the scheduling of an Impairment Rating evaluation (IRE) by a designated physician of certain qualifications.

 An IRE may be requested after the payment of 104 weeks of total disability.

Employer must establish the impairment of the injured employee is less than 50% according to the AMA Guides to the Evaluation of Permanent Impairment.

How may the Employee rebut this decisive medical evidence?

Commonwealth of Pennsylvania/DPW Loysville Youth Center v. WCAB (Slessler), No. 99 C.D. 2014, a published decision of a panel of the Commonwealth Court of Pennsylvania, dated October 30, 2014,authored by Judge Brobson,  addressed this issue. 

Factual and Procedural Background

Employee sustained multiple injuries in September 2003, in the course of his employment at a youth detention facility. NCP reflected: "neck and right Achilles tendon strain". WCJ decision in 2006 amended to include "Post Traumatic Stress Disorder( PTSD) and chronic pain".

Litigation before WCJ included:
- 2009 Employee Review/Penalty petition for payment of an adjustable bed;
- 2009 Employer Modification based upon IRE of Michael Wolk, M.D. ;
- 2010 Employee UR petition, review Dennis W. Ivill, M.D. determination of
           Myra B. Tolan, M.D., pain specialist  treatments as "unreasonable & unnecessary".

Employee testified in regards to the review petition.
Dr. Tolan testified in challenge to the UR determination.
Dr. Wolk testified in support of the IRE modification petition.

Employee Medical Expert Evidence regarding IRE
David J. Longo, Ph.D, a licensed psychologist, testified he is familiar with the AMA Guides to the Evaluation of Permanent Impairment, which he uses in preparation for depositions.

On Cross-Examination on his qualifications he conceded:
- he is not licensed to practice medicine in the Commonwealth;
- he is not certified by any American Medical or Osteopathic Board;
- he does not meet the certification and training requirements established by the Department of Labor
  & Industry for performing IRE's;
- He was not trained or certified to use the 6th Edition of the AMA Guides.

Employer objected to Dr. Longo's qualifications as an expert.

Dr. Longo testified regarding his treatment, McGill Pain inventory testing, examination and assessment of Employee.
He opined there was little likelihood Employee would recover from his pain condition.

Dr. Longo performed "his own IRE" of Employee.
He testified regarding his methods and conceded he erred as he realized (after his review of Dr. Wolk's testimony!)  he used "mode" rather than "median" values in his impairment rating calculations!
Yet his reconsidered calculation resulted in an impairment of 54%.

Employer Medical Expert Evidence regarding IRE.
Michael Wolk, M.D. testified he is a licensed medical doctor with Board-Certification in Physical Medicine & Rehabilitation. He met the Department certification and training requirements for performing IRE's.
He testified regarding his consideration of Employee's diagnosed conditions.
The cervical spine condition constituted an impairment rating of 8%.
He explained, chronic pain associated with the cervical spine "had already been incorporated into" that rating figure.
PTSD median score was "0".
He identified the methodology errors of Longo in performing "his IRE".

WCJ IRE issues Decision.
Objection to Longo testimony was overruled.
Testimony was admissible and WCJ would weigh the opinion.
 "Due Process" concerns supported acceptance of Longo testimony as no certified IRE physicians reside in the surrounding counties.
Although Longo was neither "certified" nor a medical physician, the AMA Guides anticipate psychologists would use the guidelines.

WCJ concluded Wolk testimony was incompetent. Although Wolk referred to mental and behavioral guidelines applicable to a mental impairment rating, he failed to provide testimony indicating that "he adequately considered all of the guidelines and table set forth in the Guides..." . slip opinion page 9. 

Thus regarding the IRE, the WCJ concluded Employer failed to meet its burden ...
but WCJ also concluded, Employee failed to establish his impairment rating was between 53 - 58%.

WCJ Description of Injury issue.
WCJ unilaterally determined Employee suffers from: major depression; panic disorder; status post C5-6 fusion, as a result of the work injury.
WCAB reversed this expansion of the work injury description.
This was not an issue before the Commonwealth Court.

Commonwealth Court Decision
Employer appealed the WCJ IRE issue determination (affirmed by WCAB) that Employer did not meet its burden of proof of Employee reduced impairment.

 Employer Arguments: 
1. error to conclude Wolk testimony was not competent.
2. error to conclude Longo opinion refuted Wolk opinion, as Longo was not
    (i) a medical practitioner or
    (ii) certified to perfom IRE's.

Commonwealth Court Conclusions & Reasoning 

A. Wolk testimony was competent.
WCJ erred in relying upon Lookout Volunteer Fire Company dicta.
Lookout decision held a medical expert opinion is not competent where that expert was not familiar with facts surrounding injury.
HERE, WCJ based his "competency" determination, NOT upon Wolk's lack of understanding ...
Rather it was the WCJ lack of understanding of the means by which Wolk applied the Guidelines to the facts presented.
If Wolk failed to properly apply the guides to the facts, THAT is an issue for cross-exam and that would affect the weight or credibility of the testimony NOT its legal competency.
The WCJ erred.

B. Longo was not entitled to greater weight or "competency" (sic) over Wolk testimony.
Longo does not meet "Qualifications" of a physician performing an IRE [citing regulation 123.103].

Why? Longo is not a physician. He is not licensed. He is not certified by a Medical board.
Longo does not met the requirements of a medical expert to perform an IRE.

C. BUT, may his testimony be considered competent for the purpose of responding to Employer's medical expert IRE evidence?

NO. An employee seeking to respond to competent IRE medical expert evidence, must offer evidence of a similar quality and character, i.e., competent opinion evidence from a medical professional. slip opinion page 17.

This case was remanded, as the WCJ should consider only Wolks' testimony, when considering its competency and credibility. Longo should not be considered in this assessment.
The WCJ/WCAB order denying the Employer IRE modification was vacated.


1. This decision clarifies several points regarding the type and character of medical evidence the Employee may utilize in an attempt to challenge a successful IRE modification petition. 

The IRE Modification petition is a dramatic remedy as it may significantly change the Employee benefit duration, from "lifetime" to a limited duration of 500 weeks. 
For this reason, I believe we will continue to see appellate litigation of successful IRE petitions. 

2. The Employee rebuttal medical expert DOES NOT need to be certified and "on the Bureau list" of medical professionals approved to perform an IRE. 
[IMHO I believe this remains a valid argument ... for another day]. 

3. Employee rebuttal medical expert MUST be a licensed physician, Board-Certified, active in clinical practice.

4. NOTE, the "reason" the WCJ found the Employer IRE medical expert was  not competent...
the witness failed to provide testimony "he adequately considered all of the guidelines and tables set forth in the Guides". 

Response: although it may be laborious, present testimony as to the medical expert consideration of each chapter, each calculation method, each alternative evaluation. 

[note; i have not read the above transcripts, counsel may have presented sufficiently detailed testimony and this appellate record does reflect a great deal of detail ... however, note the Court says the WCJ substituted his own medical opinion ...when that occurs ... your well planned, documented case, does not succeed.

Query; Is it appropriate to have the WCJ attend the medical expert deposition and offer the witness for questioning by the WCJ ...

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