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AN IMPERFECT IMPAIRMENT IN PENNSYLVANIA
By Kevin L. Connors, Esquire
No, this is not a political diatribe on the politically insensitive defect who promises to make “America great” while asking us to believe that only he has the power to do so.
Instead, we are talking about the Pennsylvania Supreme Court’s most recent pronouncement on impairment ratings that became the subject of its ruling inIA Construction Corporation/Liberty Mutual v. WCA Appeal Board (Rhodes), decided on May 25, 2016.
If interested in a copy of the Decision, kindly file the appropriate request, utilizing the appropriate Bureau form.
In IA Construction Corporation, The Pennsylvania Supreme Court dealt with the validity of a workers’ compensation Judge’s decision to reject the opinion testimony of the physician performing an impairment rating examination for the employer/insurer, where no contrary evidence was ever produced, or, for that matter, adduced, by the Claimant.
The background of this case arose in the context of Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, promulgated in 1996 by the Pennsylvania General Assembly to address the rising costs associated with the workers’ compensation liability scheme. Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005).
Under Section 306(a.2) of the WCA, an employer or insurer can request an impairment rating evaluation (IRE) when a Claimant has received 104 weeks of temporary total disability benefits; the IRE is a medical examination directed toward assessing the degree of the Claimant’s impairment attributable to a compensable injury.
In that same context, “impairment” connotes an anatomical or functional abnormality or loss resulting from a compensable injury that is reasonably presumed to be permanent, clearly distinguished from the compensation concept of “disability,” which more broadly concerns the loss of earnings capacity. See Dillon v. WCAB (Greenwich Collieries),640 A.2d 386 (Pa. 1994).
As those of us practicing in Pennsylvania know all too well, the concept of “disability” under the WCA encompasses the incapacity to work resulting in compensable wage loss, clearly distinct from the concept of permanent impairment.
In IA Construction Corporation, the Claimant was injured in a motor vehicle accident in 2005, with the Claimant’s entitlement to workers’ compensation benefits litigated under a Claim Petition.
The Claimant’s Claim Petition was then granted by the workers’ compensation Judge in 2007, with the Claimant awarded temporary total disability benefits, finding that the Claimant had sustained work-related injuries, described by the WCJ as a traumatic brain injury with organic affective changes, persistent cognitive problems, memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries.
A few years later, the employer/insurer filed the appropriate notice, utilizing an appropriate Bureau form, requesting that the Bureau designate a physician to conduct an impairment rating evaluation of the Claimant.
In its infinite wisdom, the Bureau designated Dr. Bud Lateef, a physician maintaining board certifications in physiatry, rehabilitation, and pain management, to conduct an IRE of the Claimant.
Given that the IRE was requested outside the period associated with the IRE being accorded automatic conversion of the Claimant’s temporary total disability benefits to temporary partial disability benefits, a very narrow window triggered by the 104 weeks receipt of temporary total disability benefits (“TTD”). The employer filed a Petition seeking to modify the Claimant’s worker’s compensation benefits, in reliance upon the IRE, seeking to convert the Claimant’s compensation benefits from TTD to temporary partial disability (“TPD”).
Following assignment of the petition to the workers’ compensation Judge, the employer/insurer deposed Dr. Lateef, who assigned the Claimant an impairment rating of 34%. Testifying that he examined the Claimant and reviewed the Claimant’s medical records, Dr. Lateef confirmed three primary diagnoses, described as the traumatic brain injury, a cervical condition in the nature of a herniated disc, and a spinal condition resulting in gait dysfunction.
Testifying that he assigned discrete impairment ratings to each of those three conditions, Dr. Lateef testified that the three conditions constituted a 34% impairment rating under the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairment (the “AMA Guides”).
Parenthetically, the constitutional argument raised in Protz v. WCAB,124 A.3d 406(Pa. Cmwlth. 2015), challenging the impairment rating examination process in that case, as it used “the most recent edition” the AMA Guides, being the Sixth Edition, as opposed to utilizing the Fourth Edition, which was the controlling AMA Edition when the impairment regulations were promulgated in 1996, was not raised inIA Construction Corporation, and was not, therefore, considered by the Pennsylvania Supreme Court in this ruling.
In IA Construction Corporation, the employer then submitted the deposition testimony of Dr. Lateef, as well as his IRE report, in response to which the Claimant did not present any evidence whatsoever, nor did the Claimant testify on his own behalf.
Denying the employer’s Modification Petition, the WCJ rejected Dr. Lateef’s testimony regarding his impairment rating opinion, expressing concern that Dr. Lateef had “inappropriately lumped” an array of discrete injuries into three categories, with the WCJ referring to the injuries that had been described by the workers’ compensation Judge in the course of granting the Claimant’s original Claim Petition.
Moreover, the WCJ, in denying the employer’s Modification Petition, was critical of Dr. Lateef for failing to adequately account for all of the injuries described in the decision under which the Claimant’s Claim Petition had been originally granted.
Additionally, the WCJ criticized Dr. Lateef’s assessment of the Claim’s cognitive issues as being unduly limited, based on Dr. Lateef only performing a cursory examination, and otherwise limiting his opinion to his review of the Claimant’s medical records. Since Dr. Lateef’s medical expertise was limited to physical medicine and pain management, and not neurology, the WCJ rejected Dr. Lateef’s opinion concerning his impairment assessment of the Claimant’s cognitive deficits.
The employer’s Appeal of the WCJ’s decision was then denied by the Workers’ Compensation Appeal Board in a divided opinion, with the majority substantially relying upon the principle that a WCJ, as the ultimate fact finder, is accorded discretion to determine the weight to be accorded to any evidence presented. Rhodes v. IA Construction Corporation,No. A11-1630 (WCAB, 11/5/13).
The Appeal Board’s decision did so on grounds that the IRE, at least procedurally, was conducted in accordance with the requirements to the Act, further attributing significance to the fact that employers do not participate in the process selecting IRE physicians, as that function is left to the administrative discretion of the Bureau.
Appealed to the Commonwealth Court, the Commonwealth Court reversed the Decisions of the WCJ and Appeal Board, holding that Dr. Lateef’s IRE conclusions satisfied the WCA’s qualifications for IRE physicians, and that Dr. Lateef had followed the statutorily-described methodology for conducting the IRE. See IA Construction Corp. v. WCAB (Rose),110 A.3d 1096 (Pa. Cmwlth. 2015).
Taking the position that the WCJ lacked the authority to reject the testimony of a physician on the basis that cognitive impairment was outside the area of his specialization, the Commonwealth Court held that the “WCJ’s opinion as to the insufficiency of an IRE cannot stand without some record support”. Id. at 1102.
Since the Claimant had failed to adduce any evidence on his own behalf, the Commonwealth Court held that the WCJ never referenced any provisions of the AMA Guides, or any other evidence that supported her conclusions that Dr. Lateef had mischaracterized or improperly grouped the Claimant’s injury, or that Dr. Lateef had erroneously miscalculated the impairment rating assigned to the Claimant.
Reflecting that impairment rating examinations and procedures were enacted as a cost-containment scheme focusing upon “impairment”, as opposed to “disability”, the latter being the traditional core of the workers’ compensation scheme, the Pennsylvania Supreme Court, in an opinion authored by Chief Justice Saylor, noted that the enactment of impairment rating regulations and procedures was essentially experimental legislation, subject to conceptual and other difficulties that have become increasingly evident over time, with there being certain conflicts that have appeared between the legislative statute and the AMA Guides, particularly with respect to the timing of a Claimant reaching maximum medical improvement. Combine v. WCAB (Nat’l Fuel Gas Distribution Corporation), 954 A.2d 776, (Pa. Cmwlth. 2008).
Citing to the incongruities that have arisen from the impairment rating statute, Justice Saylor suggested that this is an area of law that is ripe for legislative review, so that the statute can be clarified, and improved, to enhance fairness, incorporating the many compromises and trade-offs that are inherent in a workers’ compensation liability scheme, for purposes of implementing the manifest intentions of the policy-making branch (the Bureau), subject to constitutional limits.
Noting the conflict in the WCJ’s Decision between the “credibility” and “persuasiveness” of the opinions rendered by Dr. Lateef, the Supreme Court rejected the employer’s argument that to reject the opinion of Dr. Lateef in the absence of any contrary evidence was tantamount to an evisceration of the substantial-evidence review principle, with the Supreme Court held that the substantial-evidence facet of the appellate review of an administrative agency adjudication did not simply apply to scenarios in which the prevailing party presented no evidence whatsoever, rather, these matters must turn upon the weight attributed by the fact-finder of the evidence presented by the party bearing the burden of proof.
Since the employer in IA Construction Corporation carried the burden to establish the factual and legal basis for the modification of compensation benefits that it sought, the Supreme Court held that the WCJ was free to accept or reject the employer’s evidence, even in the absence of any contrary evidence being presented by the Claimant.
Addressing employer’s argument that the WCJ’s analysis of Dr. Lateef’s opinion was superficial, particularly in reference to Dr. Lateef’s opinions concerning the Claimant’s brain injury, the Supreme Court noted that an examination for a neurological impairment “should be based on a detailed mental status examination, often in concert with neuropsychological assessment and testing”, with the Supreme Court finding that there was very little support in Dr. Lateef’s deposition testimony, or IRE report, suggesting that Dr. Lateef had undertaken a detailed mental status examination of the Claimant.
Moreover, the Supreme Court noted that Dr. Lateef’s testimony did not elaborate on the differences in impairment attaching to the different classes of neurological impairment, failing to address what additional impact the Claimant’s impairments would have on the activities of daily living, potentially affecting the impairment rating percentage that could potentially be assigned to the Claimant’s work-related injuries.
The Court also noted that other jurisdictions allowed WCJs to assign lesser weight to an underdeveloped and out-of-specialty impairment rating that was not contradicted by opposing medical evidence, relying uponAdams v. Massanari, 55 Fed. 2Fed. F Appx. 279 (6th Circuit 2003) (explaining that, as a general rule at least, an administrative law judge “may discredit the opinion of a physician that is outside their area of expertise” (citingTurley v. Sullivan, 939 F.2d 524 (8th Circuit 1991))).
Ruling summarily that the Supreme Court had previously determined that a physician’s impairment rating opinion was subject to “vetting through the traditional administrative process.”, theDiehl v. WCAB, 5 A.3d 245), the Supreme Court held that the Commonwealth Court had erred in its conclusion that a workers’ compensation judge lacked the authority to reject the uncontradicted testimony of an IRE physician, reversing the Commonwealth Court’s reversal of the Decisions by the WCJ and Appeal Board, with the Supreme Court remanding the case back to the WCJ, for reinstatement of the WCJ’s original adjudication.
Justices Baer, Todd, Donohue, Doughtery, and Wecht joined in Justice Saylor’s opinion.
Be careful what we wish for.
Obviously, the factors that influenced the Supreme Court in IA Construction Corporation clearly distinguish the logistical gap between the injuries originally found to be work-related and compensable under the initial granting of the Claimant’s Claim Petition, as opposed to the injuries evaluated by Dr. Lateef, in the course of conducting the IRE in question.
That appears to have been a fatal flaw in Dr. Lateef’s IRE findings and conclusions by the Supreme Court.
Unknown is whether Dr. Lateef had any knowledge as to the injuries found to be compensable and work-related when the Claimant’s Claim Petition was originally granted.
However, it is clear that the Supreme Court took issue with the fact that Dr. Lateef, a board-certified physiatrist, was assigning an impairment rating to a cognitive impairment, one presumably associated with an accepted and adjudicated work injury, when Dr. Lateef lacked either expertise or qualifications in the medical specialty of neurology, more traditionally associated with the evaluation of cognitive deficits and injuries.
A very different result might have been achieved if the Bureau had assigned the Claimant’s impairment rating examination to a board-certified neurologist, presumably qualified and competent to evaluate a cognitive injury, in the context of potential impairments.
So who is ultimately responsible for matching an accepted injury with the appropriate qualifications to evaluate injury-related impairments, with that responsibility being left, at this point, to the infinite wisdom of the Bureau, oftentimes making random impairment rating physician designations.
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