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The Further Erosion of the IRE Process


In the case of IA Construction Corp. and Liberty Mutual Insurance Co. v. WCAB (Rhodes), (Decided May 25, 2016), the Supreme Court addressed the issue of whether a WCJ’s Decision to reject opinion testimony from an IRE Physician presented by an employer in the absence of any contrary evidence by the claimant, is valid. 


In 2005, the claimant suffered injuries in a vehicular accident while in the course and scope of his employment with the employer.  He filed a Claim Petition which was granted by decision of the WCJ in 2007.  Several years later, after the 104 week period for an automatic change of status had expired, the employer filed a Request for Designation of an Impairment Rating Physician with the Bureau.  The physician assigned by the Bureau, Dr. Lateef, specialized in physical medicine and pain management and assessed an impairment rating of 34% to the claimant.  The employer filed a Petition seeking to modify claimant’s compensation benefits to partial disability based on Dr. Lateef’s impairment rating of less than 50%. 


In the course of Dr. Lateef’s report and deposition, he confirmed three primary present diagnoses, including a traumatic brain injury, a cervical herniated disc, and a spinal condition resulting in gait dysfunction.  During the hearings on the Modification Petition, the employer presented Dr. Lateef’s deposition testimony and underlying report.  Claimant did not testify or present any evidence to contradict the employer’s evidence.  Accordingly, this was essentially an uncontested Petition except that the employer had the burden of proof. 


The WCJ denied employer’s Modification Petition finding Dr. Lateef’s impairment rating opinion inappropriately “lumped” discreet injuries into three categories.  The WCJ noted concern over the impairment rating for claimant’s cognitive issues, noting Dr. Lateef specialized in physical medicine and pain management, not neurology.     


The employer appealed and the WCAB affirmed in a divided opinion.  The Board essentially held a WCJ, as a fact finder, can determine the weight to be accorded to the evidence presented.  The matter was then appealed to the Commonwealth Court who reversed in a published decision.  The Commonwealth Court held Dr. Lateef met the statutory qualifications for IRE physicians and followed the appropriate methodology for conducting the examination.  The Court held the WCJ lacked the authority to reject the physician’s testimony on the cognitive impairment issue as being outside of his area of specialty.  The Commonwealth Court explained factual findings must be supported by substantial evidence such that there must be some facts in the record, to establish the insufficiency of an IRE which did not happen in this case because claimant did not present any evidence to support his case. 


On Appeal before the Supreme Court, the claimant argued the WCJ supplied sufficient justifications for her judgments as to the insufficiency of Dr. Lateef’s opinions.  In response, the employer argued Dr. Lateef was qualified to render the IRE according to the statute and the WCJ lacked the authority to reject Dr. Lateef’s opinion testimony without any contrary evidence presented by the claimant.  The employer also pointed out impairment rating physicians are specifically chosen by the Bureau and not by the employers.  Employer argued the appropriate burden for appellate review was the substantial evidence review standard.


In the Supreme Court’s initial discussion of the case, they note “general observations concerning Section 306(a.2).”  The Court cites to several discrepancies in the statutory language and the impractical effect they have in practice.  Specifically, the Supreme Court stated “in light of the incongruities arising from the face of the statute, the judicial decisions interpreting it cannot be fully reconciled with the enactment as a whole.”  The Court goes on to state the many difficulties arising from the inconsistencies “very strongly” suggest this area of the law is ripe for legislative review to clarify and improve the statute as well as enhance fairness. 


Despite the Supreme Court’s call for action to the legislative branch, they note the need to render a decision in the context of the current statute and proceeded with their decision.


In rendering its decision, the Court seems to place significance on the distinction between “credibility” and a WCJ’s opinion on the persuasiveness of the evidence and the weight it should be accorded.  The Court reiterates the long-held legal principal a Workers’ Compensation Judge is generally deemed to be the “ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight.”  The Court explained its primary disagreement with the Commonwealth Court’s underlying decision was they essentially fashioned an “uncontradicted medical evidence rule.”  The Court went on to explain a substantial evidence rule of administrative appellate review may not apply to all scenarios in which the prevailing party presents no evidence in rebuttal.  The Court explained in those situations the question should turn on the weight attributed by the finder of fact on the evidence presented by the party who bears the burden of proof.  The Court explained this is a capricious disregard standard of review which should be implied in cases where there is no contradicting evidence. 


In application, the Court explained it was the employer’s burden to prove grounds for a modification.  The Court explained two of the three explanations provided by the WCJ were not convincing.  The two unconvincing explanations provided by the WCJ included the fact that the WCJ’s decision relied heavily on the initial work injuries since IREs, by their very nature, are intended to assess a claimant’s present condition, consistent with maximum medical improvement, not their initial condition.  The Supreme Court also rejected the WCJ’s explanation of “lumping” medical conditions as having no real significance.  Finally, the Supreme Court agreed with the WCJ’s explanation for rejecting Dr. Lateef’s medical opinions relative to the traumatic brain injury since it was out of his area of specialty.  The Court held this was a sufficient and reasoned basis for the Judge to reject his testimony.  The Court explained Dr. Lateef’s deposition and report did not sufficiently detail the mental status examination in terms of the extent of the claimant’s mental abnormalities and the appropriate classifications. 


Notably, in dicta, the Court notes both the employer and the claimant have essentially no control over the IRE process within the current administrative scheme.  The Court again reiterated, to the extent there is unfairness in the Bureau’s handling of IRE physician designations, this as a concern appropriate for legislative consideration. 


In terms of final takeaways from this Decision, from a practical standpoint, this case establishes that a WCJ may accord lesser or no weight to an IRE physician’s opinion that is outside their area of expertise regarding the degree of a claimant’s impairment for purposes of the IRE process.  It is interesting that the Court simultaneously acknowledges the employer’s inability to control the IRE designation while also denying the expertise of the physician designated by the Bureau.  The most important point to take away from the Decision is the Court’s obvious dissatisfaction with the current legislative scheme and the clear call for reform.  At the very least, the Court seems to suggest the need for both employers and claimants to have additional controls over the IRE process than what currently stands. 



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