In the case of IA Construction Corporation v. WCAB (Rhodes), 2016 Pa. LEXIS 1070, the Pennsylvania Supreme Court held that a workers' compensation judge has the authority to reject the uncontradicted opinions of an IRE physician presented in support of a modification petition based upon the physician's impairment rating evaluation (IRE).

The claimant, Jeffrey Rhodes, filed a Claim Petition arising out of a 2005 work-related motor vehicle accident.  The petition was granted by a workers' compensation judge, who found that the claimant had sustained work-related injuries, including a traumatic brain injury with organic affective changes, persistent cognitive problems, memory impairment, post traumatic headaches, post traumatic vertigo/impaired balance, and musculoskeletal/myofascial neck and back injuries.  The claimant was paid temporary total disability benefits by the employer for more than 104 weeks.  Pursuant to the provisions of §306(a)(2) of the Act and the regulations promulgated pursuant to that section, the employer requested designation of an impairment rating physician.  The Bureau designated a physician with board certifications in physical, rehabilitation, and pain medicine to conduct the IRE.  Based upon his examination, the physician assigned an impairment rating of 34% to the claimant.

Under §306(a)(2), an impairment rating is automatically effective if the employer requested the examination within 60 days of payment of 104 weeks of temporary total disability benefits.  In this case, the IRE designation was requested outside the 60-day window.  As a result, under Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 751, 759 N.1 (Pa. 2005), the employer was required to file a modification petition to place the claimant in the 500-week IRE cap.

Before the workers' compensation judge, the employer offered into evidence the report and deposition of the IRE physician.  The claimant offered no evidence in opposition to the petition, not even his own testimony.  However, the workers' compensation judge denied the modification petition, rejecting the opinions of the IRE physician.  Although the workers' compensation judge cited three reasons for rejecting the physician's opinion, the only reason relevant to the Supreme Court's decision was the judge's determination that she was unpersuaded by the physician's opinion regarding the claimant's cognitive impairment.  The workers' compensation judge rejected the physician's opinion since she found that the physician's assessment of the claimant's cognition was unduly limited.  The judge noted that the opinion was based only upon a cursory examination and relied only upon a limited range of medical records.  The judge also rejected the opinion because the IRE physician specialized in physical medicine and pain management, not neurology.

In a split decision, the Workers' Compensation Appeal Board affirmed the decision of the workers' compensation judge.  However, on appeal to the Commonwealth Court, the Commonwealth Court reversed, finding that the judge lacked the authority to reject the IRE physician's uncontradicted testimony on the basis that the claimant's cognitive impairment was outside the area of the physician's specialization.  The court noted that the physician met the Workers' Compensation Act's stated qualifications for IRE physicians and that the physician followed the statutorily prescribed methodology for conducting the impairment rating evaluation.

As stated above, the Supreme Court reversed the Commonwealth Court.  In so doing, the Supreme Court rejected any notion that Pennsylvania employs an uncontradicted medical evidence rule that would make such evidence binding on the WCJ.  Rather, the court ruled that the opinions of an impairment rating physician are subject to credibility review by the workers' compensation judge, and can be rejected in a modification petition based upon an impairment rating evaluation just as they can in any other workers' compensation proceeding.

In summary, the court held that a workers' compensation judge has the authority to reject the uncontradicted opinion of an impairment rating physician where the judge adequately articulates the basis for rejecting the opinion.

What It Means to You

Impairment ratings have been a tool used by employers to manage claims since they were introduced by Act 57 in 1996.  The recent decision in Protz v. WCAB (Derry Area School District), 124 A.3d. 406, (Pa. Cmwth. 2015), which is on appeal to the Supreme Court, coupled with the decision with IA Construction, impairs the usefulness of the IRE process.  Even assuming that the IRE process survives constitutional review in Protz, the decision in IA Construction provides workers' compensation judges a basis to reject uncontradicted impairment rating evaluations, especially in cases involving non musculoskeletal injuries, such as traumatic brain injuries, psychological injuries, and work-related cardiac conditions.

The Supreme Court recognized that employers are required to use physicians designated by the Bureau of Workers' Compensation to perform IREs and have no input into the specialization of the physician to be designated.  The Supreme Court also acknowledged that impairment rating physicians are permitted to refer claimants to specialists, but cannot be compelled to do so by employers.  The Supreme Court offered no solutions to this problem, stating that the problem is for the legislature to solve.