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Commonwealth Court Rules on Competency of Dueling IRE Physicians

Commonwealth Court Rules on Competency of Dueling IRE Physicians

In Christian’s latest article for the Legal Inteligencer, he tackles the Commonwealth Court case dealing with the the competency of doctors who were testifying on an impairment rating evaluation.  Can an injured worker challenge the validity of an IRE?  Read an excerpt from Mr. Petrucci’s latest article below, and read the whole story at The Legal Inteligencer.

Last month, in the case of Pennsylvania Department of Public Welfare v. Workers’ Compensation Appeal Board (Slessler), No. 2209 C.D. 2013, the Commonwealth Court took up a matter dealing with the competency of doctors testifying with respect to an impairment rating evaluation. While the procedural history and fact pattern of the case are fairly convoluted, the ultimate holding provides some guidance regarding an injured worker’s ability to challenge the validity of an IRE.

The matter came before the court on petition by the employer, seeking to challenge the Workers’ Compensation Appeal Board’s decision affirming a workers’ compensation judge’s (WCJ) decision denying the employer’s petition to modify compensation benefits based on an IRE. The modification petition sought to change the claimant’s benefit status from temporary total disability (TTD) to temporary partial disability (TPD) based upon an IRE that resulted in a total body impairment of 8 percent, which is significantly lower than the needed 50 percent to maintain ongoing TTD benefits. While the board also reversed the WCJ’s determination to include major depression, panic disorder and status post C5-6 fusion into the description of injury, that issue was not before the court.

The case began in September 2003, when the claimant, Dallas Slessler, was injured at work after a resident of the Loysville Youth Center and four other workers all fell on Slessler during an attempt to subdue the resident. The claim was picked up by notice of compensation payable (NCP), which listed the accepted injury as “neck and right Achilles tendon strain.” In November 2006, the WCJ issued a decision, amending the NCP to include post-traumatic stress disorder and “chronic pain.”

While multiple pleadings on both sides were filed, the petition at issue was the August 2009 modification petition, alleging that Slessler’s benefits should be modified to TPD based on a Nov. 18, 2008, IRE of Slessler that found a total body impairment rating of 8 percent. The modification petition was necessary since the employer failed to obtain the automatic conversion due to an untimely IRE request.

During the litigation, the employer presented the testimony of the IRE physician, Michael Wolk, who is a licensed medical doctor who, among other qualifications, met the Department of Labor and Industry’s certification for performing IREs. Slessler relied on the testimony of a psychologist, David Longo. The employer objected to his testimony based on the notion that he could not be qualified as an expert because he did not satisfy the Department of Labor and Industry’s qualification requirements for the performance of IREs. Among other concerns, the employer asserted that Longo was not a medical doctor and was admittedly not trained in the sixth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

The WCJ overruled the employer’s objection to the testimony of Longo. The WCJ indicated essentially that the regulations dealing with the performance of IREs only spoke to the competency of the doctor performing the IRE for the employer in the first instance, but that a claimant’s rebuttal witness’s failure to meet the regulations’ standards went only to the weight of the opinion. The WCJ indicated that the regulations do not address the competency of a non-certified physician to testify in rebuttal to an IRE and that the AMA guides specifically state that both psychiatrists and psychologists are expected to use the guides in their practices.

In denying the employer’s modification petition, the WCJ found that Wolk’s testimony was actually incompetent and used Longo’s opinion to support his findings. The board affirmed the WCJ’s decision regarding the employer’s modification petition, but reversed the WCJ on other matters. As the employer took an appeal to the Commonwealth Court, the only issue before it was whether the board erred in affirming the WCJ’s decision on the impairment rating issue.

Since the employer had the burden on the modification petition, the court dealt with whether the WCJ erred in finding Wolk’s testimony incompetent. The reason given by the WCJ for the finding was that Wolk’s testimony “does not establish that he adequately considered all of the guidelines and tables set forth in the guides.” However, this fact was not based on any piece of evidence, but on the WCJ’s own understanding of the guides. Consequently, the court found that Wolk’s testimony was, in fact, competent, and that the WCJ erred. Next, the court had to discern whether the WCJ erred in finding Longo’s testimony competent to support the WCJ’s findings. In going through the relevant regulations, the court acknowledged that the provisions do not specifically require a claimant seeking to rebut an established IRE to offer an expert who satisfies the requirements of the IRE regulations. The court notes that the regulations only speak to the first instance of an employer initiating the proceedings. However, the court found Longo not to be competent to render an opinion as the regulations specifically anticipate only medical doctors performing IREs. A claimant must present evidence of “similar character,” performed by osteopathic or medical doctors—while not necessarily a physician certified by the state to perform IREs.

Based on the holding in this case, it is now reasonable to infer that evidence tending to discredit the original IRE will be very liberally accepted. Even if a claimant only offers testimony seeking to demonstrate the IRE was not properly performed in the first instance, and fails to get a full-blown impairment rating, it will still be helpful. One need not obtain an opinion from a physician of the same certification as the original IRE doctor. However, it is important to note that only medical doctors will be deemed competent to offer any kind of opinion as to the validity of the IRE. These guides offer a succinct strategy in challenging IREs.

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