Sunday, July 31, 2016

WCJ may reject unrebutted IRE medical expert opinion testimony

The Impairment Rating Evaluation (IRE) remedy allows the Employer and Insurer to attempt to limit liability for future wage loss benefits based upon a medical expert examination and opinion of impairment.
There are specific requirements to pursue the IRE remedy. The injured worker must receive 104 weeks of total disability payments. The Employer must file a request with the Bureau. The Bureau  assigns the request to a designated prequalified medical expert. An examination is conducted if the injured worker has reached maximum medical improvement.  
If the impairment rating is less than 50% based upon the AMA Guides to the Evaluation of Permanent Impairment (and the IRE request was made within 60days of the 104th week) the disability status of the worker "automatically" converts from total disability to partial disability of a duration of 500 weeks.
 If the IRE request is made more than 60 days after the 104th week, a petition to modify status must be filed and the traditional administrative adjudicatory process follows. 
In many cases, the only medical evidence introduced is the report of the IRE physician. In the absence of contrary medical evidence, the IRE petition is often granted.

What about the cases where the IRE physician opinions are unconvincing?

What are the employee legal arguments and remedies?

IA Construction Corporation v. WCAB (Rhodes) a decision of the Supreme Court of Pennsylvania authored by Chief Justice Saylor on May 25, 2016 addressed the validity of a workers compensation judge decision  to reject the opinion testimony of an IRE physician in the absence of contrary medical evidence.

Factual and Procedural Background 

Rhodes was injured in 2005 in a work-related motor vehicle accident. A WCJ granted a claim in 2007 for disability from  a traumatic brain injury with neck and back injuries. 
Several years later, Employer filed an IRE request and the Bureau assigned M. Bud Lateef MD a board certified specialist in Physical Medicine and Rehabilitation to conduct an evaluation. He assigned a 34% impairment based upon physical evaluation and application of the AMA Guides.  (6th Edition AMA Guides). 

Employer filed a petition to modify the employee disability status. Dr. Lateef testified he examined employee and confirmed 3 primary diagnoses: traumatic brain injury; cervical disc herniation; gait dysfunction from a spinal condition. Dr. Lateef assigned a discrete impairment rating to each diagnosis. Employee had reached maximum medical improvement. 
In the litigation of the Employer petition Employee did not testify. No medical testimony was presented on behalf of Employee. 
The Workers Compensation Judge denied the Employer modification petition and rejected the impairment rating of Dr. Lateef. The WCJ expressed a concern he "lumped " an array of discrete injuries, which were previously recognized in the WCJ claim petition decision,  into 3 categories. 
She believed his  cognitive injury assessment  was limited. Dr. Lateef was not a specialist in neurology. For these reasons the WCJ was unpersuaded by his opinion of the degree of impairment present. 

 A divided  WCAB affirmed the WCJ denial of the Employer petition, on the basis that the WCJ determines the credibility and weight assigned to the medical evidence. 

The Commonwealth Court reversed the WCJ denial of the IRE modification request.
The Court reasoned that Dr. Lateef met the statutory requirements for qualifications of physicians to conduct an IRE evaluation. He followed the methodology to conduct an impairment rating evaluation. The Court believed the WCJ lacked the authority to reject the medical expert opinion testimony on the basis that cognitive impairment was outside his area of medical specialty. This type of ruling would impose a standard in excess of those set forth in the statute.

Also the Court noted the WCJ findings must be based upon substantial evidence. For the WCJ to find the IRE is insufficient, there must be evidence in support of that finding. Here Employee produced no evidence. The WCJ did not reference any section of the AMA Guides in support of the conclusion that Dr. Lateef inappropriately grouped the injuries or erroneously calculated the impairment rating.

Supreme Court Decision reverses and reinstates WCJ rejection of medical evidence and denial of Employer Modification petition.
The Supreme Court reviews a number of critical points in the impairment rating evaluation procedure and remedy. As the Protz decision is pending the Court's consideration, regarding the constitutionality of the application of "subsequent" Editions of the AMA Guides (after the 4th Edition which was in effect at the time of the 1996 amendment), perhaps this section of the Workers' Compensation has gained the attention of the Court.

Here the Court considers the term "credibility" in its broadest sense, as a measure of the persuasiveness of the testimony. (as the medical witness testified via deposition, the WCJ did not assess his demeanor). The Court cites the often-recited principle that the WCJ is the fact finder and exclusive arbiter of credibility and evidentiary weight.

Pennsylvania does not apply an uncontradicted medical evidence rule in workers compensation cases. The decision below did not explain why there should be a departure from this long standing rule in our "traditional administrative process".

The substantial evidence rule does not apply to situations where the prevailing party did not present any evidence. Rather the focus is upon the weight afforded the evidence presented by the party with the burden of proof.

The Court agreed with the Employer's arguments that the WCJ explanations for her rejection of Dr. Lateef's opinions were unconvincing. There was no explanation how Dr. Lateef "lumping" of the medical conditions were inconsistent with the AMA Guides. However, the Court noted specific points where the medical evidence was lacking.

A WCJ may validly accord less weight to the underdeveloped out-of-specialty medical opinion testimony of the degree of impairment associated with a work-related traumatic brain injury, in the traditional administrative process.


1.   In IRE litigation, Employers and Insurers must consider the available avenues of attack of the IRE medical expert. It may be necessary to supplement the IRE report with an IME medical expert to buttress the weak points regarding diagnosis of conditions, assessment of MMI status, or application of the AMA Guides.

2. It is recommended to consider medical expert deposition testimony to explain, amplify and support the conclusions in the IRE report.

3.  As the WCJ will assess the "credibility" of the IRE medical evidence, we should consider supplementation of the evidentiary record with medical records of treatment, diagnostic test results and consultations which support the logic and reasoning of the IRE medical expert.