Beginning with the original Gardner decision back in 2003, one of the sections of the Workers’ Compensation Act most subject to appellate court review has been Section 306(a.2), dealing with impairment rating evaluations (IREs). An IRE is used by the insurance carrier to convert the status of a claimant’s benefits from total to partial in nature, without changing the amount of compensation paid, should the IRE demonstrate that an injured worker’s “whole person impairment” is less than 50 percent, according to the latest edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment.”
Given that the IRE is used to put a cap on the employer’s exposure for indemnity benefits and nearly every successfully completed IRE results in an impairment rating of less than 50 percent, the focus for claimant’s practitioners has often been on ensuring the IRE is invalid for other reasons. The aforementioned Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005), decision, which was eventually decided by the state Supreme Court in 2005, dealt with an employer’s failure to timely avail itself of the automatic conversion from total to partial provided for in Section 306(a.2). Then, the Supreme Court’s 2010 decision in Diehl v. WCAB (I.A. Construction), 607 Pa. 254, 5 A.3d 230 (2010), which further defined ambiguous elements of Gardner, found that if an IRE is requested outside of the applicable 60-day period, the employer must prove the validity of the impairment rating through competent evidence. For all the drama created by the two cases, spanning nearly a decade, the final result did not afford injured workers much protection.
Perhaps the most successful challenge to the IRE thus far was the 2008 Combine v. WCAB (National Fuel Gas Distribution), 954 A.2d 776, 780 (Pa. Cmwlth. 2008), case, which found that since the AMA guides indicate that impairment may be calculated only after an individual reaches maximum medical improvement (MMI), the employer must first prove that the claimant has reached MMI prior to determining his or her percentage of impairment due to the work-related injury. Since demonstrating MMI is fairly difficult given today’s advancements in medicine, holding on to the hope that an injured worker can still get better with the right intervention also provides a significant defense to the conversion following a valid IRE.
On Wednesday, the Commonwealth Court afforded injured workers another significant defense to a validly procured IRE in the matter of Verizon Pennsylvania v. WCAB (Ketterer), No. 1188 C.D. 2013 (March 12, 2014). The challenge to IREs in the Ketterer case focused on the competency of the physician performing the exam. Specifically, the question was presented as to whether the physician who performed the IRE on which the modification petition was based met the requirement of Section 306(a.2) of the act, that IRE doctors must be “active in clinical practice for at least 20 hours per week.”
Specifically, Section 306(a.2)(1) of the act states: “When an employee has received total disability compensation pursuant to [77 P.S. § 511] for a period of 104 weeks, unless otherwise agreed to, the employee shall be required to submit to a medical examination which shall be requested by the insurer within 60 days upon the expiration of the 104 weeks to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this commonwealth, who is certified by an American Board of Medical Specialties-approved board or its osteopathic equivalent and who is active in clinical practice for at least 20 hours per week, chosen by agreement of the parties, or as designated by the department, pursuant to the most recent edition of the American Medical Association ‘Guides to the Evaluation of Permanent Impairment.'”
In the Ketterer matter, the physician who performed the IRE was licensed to practice medicine in Pennsylvania and was board-certified in occupational medicine. She had been trained in the use of the AMA guides and had performed IREs under both the fifth and sixth editions. At the time of her evaluation of the claimant, the IRE doctor was approved by the Bureau of Workers’ Compensation as a certified IRE physician. The bureau’s approval was based on the doctor’s 2008 application, which listed as clinical experience her treatment of patients at Capital Health System.
Notwithstanding all of her credentials, the IRE physician was no longer actually treating or managing the care of any patients. The doctor had worked 20 hours a week or more treating patients at Capital Health System until February 2010, 10 months before she performed the IRE of the claimant. Following her departure from Capital Health System in 2010, her practice consisted exclusively of independent medical examinations and IRE for workers’ compensation cases, physical examinations for pilots to determine whether they satisfy Federal Aviation Administration certification requirements, commercial driver’s license examinations and utilization and peer reviews.
Following the litigation of the employer’s modification petition to effect a non-automatic conversion consistent with the IRE, the workers’ compensation judge denied the employer’s petition on the grounds that the IRE doctor did not meet the requirement of Section 306(a.2)(1) of the act that physicians performing IREs must be “active in clinical practice for at least 20 hours per week.” The employer took an appeal to the Workers’ Compensation Appeal Board, which affirmed the WCJ’s decision, holding that the IRE doctor’s testimony that she performs the aforementioned examinations, but does not actually treat patients anymore, demonstrated that she did not satisfy the requirement under the act that IRE physicians be active in clinical practice. Based on this result, the employer brought the matter before the Commonwealth Court.
The Commonwealth Court defined the issue as what type of medical work satisfies the requirement of Section 306(a.2)(1) that physicians performing IREs must be “active in clinical practice.” Noting that the act does not define “clinical practice” and not having any appellate authority upon which to rely, the court treated the issue as a matter of first impression. Therefore, the court turned to the Special Rules of Practice and Procedure, as promulgated by the bureau. The court noted that regulations of agencies charged with administering statutes are entitled to deference if the interpretation is a “reasonable construction” of the statutory language.
Bureau Regulation 123.103 defines what it means to be “active in clinical practice” in pertinent part as follows: “For purposes of this subchapter, the phrase ‘active in clinical practice’ means the act of providing preventive care and the evaluation, treatment and management of medical conditions of patients on an ongoing basis.”
The court took this language to require that the IRE doctor’s work involve some connection to the care or treatment of patients in order to constitute a “clinical practice,” rejecting the employer’s argument that the “clinical practice” requirement was included by the legislature merely to ensure the IRE physicians have current qualifications.
The court summarized its position by stating: “Because a practice consisting solely of workers’ compensation independent medical examinations, workers’ compensation IREs, physical examinations for certification and qualification requirements, utilization reviews and peer reviews does not satisfy the requirement that the IRE be ‘by a physician … who is active in clinical practice for at least 20 hours per week,’ [the IRE physician’s] IRE of claimant was invalid and employer’s modification petition was properly denied.”
Interestingly, the court referenced in a footnote the employer’s attempted reliance on an unreported Commonwealth Court case, which the court refused to address, as the issue in that case was whether an average of 20 hours per week of clinical practice satisfied the requirement that the IRE physician “maintained the minimum active clinical practice” of at least 20 hours per week. The focus there was more on what constitutes 20 hours, rather than how an “active clinical practice” is defined. The point, of course, is that the IRE provisions of the act and regulations offer multiple challenges to the validity of an IRE, should one just look.
While Ketterer is certainly welcome news to those injured workers struggling to remain on temporary total disability benefits under the shadow of an impending IRE, it bears noting that since the invalidity of the IRE was not caused by the employer, the court suggested in a footnote that the employer could be entitled to a new IRE nunc pro tunc, if the denial was otherwise prejudicial. It is painful to think that an IRE might eventually refer back to a date years earlier for purposes of the conversion of a client’s disability benefits from total to partial. However, even maintaining total disability status throughout the duration of procuring and litigating a second IRE has innumerable benefits. Simply resigning one’s client to the dreaded conversion, in light of the ever-mounting challenges to the IRE, is never the correct course of action.
Christian Petrucci is a solo practitioner and past co-chairman of the Philadelphia Bar Association’s workers’ compensation section. He concentrates his practice in workers’ compensation litigation and Social Security disability.