Pennsylvania's Supreme Court Provides a New Avenue for Claimants to Challenge the Validity of IRE Determinations
In a significant decision affecting employers, workers’ compensation insurance carriers, and third-party administrators, the Pennsylvania Supreme Court, in a 5-2 decision, held that an Impairment Rating Evaluation (IRE) physician must make a “whole-body assessment” based upon any and all conditions that are alleged to be work-related by the claimant at the time the IRE examination takes place. Duffey v. Workers’ Comp. Appeal Bd. (Trola-Dyne, Inc.), No. 4 MAP 2016 (Pa. Jan. 19, 2017), available here. Simply put, the Court held that the IRE physician cannot limit the examination to the description of the injury set forth in the Notice of Compensation Payable (or in a Judge’s Decision), but must include any and all “conditions” alleged to be work-related by the claimant and causing an impairment at the time of the examination in formulating the whole-body impairment rating. Otherwise, the IRE determination is invalid.
The following article is part of a continuing series by Post & Schell’s Workers’ Compensation and Appellate Departments concerning the appellate courts’ decisions with regard to Impairment Rating Evaluations and their impact.
The Supreme Court's Decision
Duffey v. Workers’ Comp. Appeal Bd. (Trola-Dyne, Inc.) involves a situation in which the employer requested an IRE after the claimant had received total disability benefits for a period of 104 weeks. In its request for the IRE, the employer described the work injury as “bilateral hands-nerve and joint pain.” The Notice of Compensation Payable, which was the controlling document describing the injury at the time of the IRE, described the injury as an “electrical burn” to the “bilateral hands.” The IRE physician assigned a whole-body impairment rating of six percent and the employer issued a notice informing the claimant that his disability status had been changed from total disability to partial disability. The IRE physician in this case utilized the 6th Edition of the AMA Guides in formulating the rating; because the claimant did not challenge the use of the 6th Edition, the issue was not addressed by the Judge or on appeal.
The claimant filed a Review Petition attacking the validity of the IRE. He argued that the IRE physician had failed to rate the full range of his work-related injuries, as the claimant alleged that he also suffered from adjustment disorder with depressed mood and chronic post-traumatic stress disorder as a result of the work injury. During the course of the litigation, both parties introduced medical testimony concerning the alleged additional psychological injuries. The Workers’ Compensation Judge accepted the claimant’s evidence and determined that the alleged psychological conditions should be added to the description of the injury set forth on the Notice of Compensation Payable. The Judge also found that the IRE was invalid because the IRE physician had not addressed these additional conditions.
On appeal, the Workers’ Compensation Appeal Board reversed the Judge’s Order, reasoning that the IRE physician may properly limit the IRE according to the injuries set forth on the Notice of Compensation Payable. In reaching its determination, the Board noted that the claimant had not sought to amend the description of the injury until six months after the IRE was performed. The Commonwealth Court agreed with the Board, emphasizing that Section 306(a.2) of the Workers’ Compensation Act requires a determination of the degree of impairment “due to the compensable injury,” which the Court explained was based upon the description of the injury set forth in the Notice of Compensation Payable.
The Supreme Court, in an Opinion authored by Justice Saylor, correctly noted that the IRE physicians must determine “the degree of impairment due to the compensable injury.” The majority, however, then proceeded to ignore the plain language of the Act requiring the IRE physician to perform the examination with regard to only “the compensable injury,” and instead determined that the IRE physician must determine the degree of impairment due to any and “all work-related conditions existing at the time of the evaluation.”
The Court further noted that causation, for purposes of the AMA guides, is assessed with reference to an event rather than an injury. As a result, the Court held that an IRE physician must consider the causal relationship of all conditions alleged by the claimant to the work-related “event.” Because the IRE physician in Duffey addressed only the injuries described on the Notice of Compensation Payable, and not “the degree of impairment due to the compensable injury” on a “whole body” basis, the Court held that the IRE was invalid.
It is significant that, in reaching its decision, the majority noted that “the approach of tying the continuation of disability benefits to impairment rating protocols has been decried by many physicians and characterized as ‘unappealing, if not Orwellian’ in the commentary.” This note may signal the Supreme Court’s willingness to further dismantle the IRE process and/or to add claimant-friendly safeguards to the IRE process in future decisions.
In a Dissenting Opinion authored by Justice Wecht, he indicated that the majority’s Opinion will “compromise the impairment-rating process, which exists to quantify a claimant’s whole body impairment due to his established work-related injuries.” He noted that, under the majority’s approach, a claimant is no longer required to file a review petition to expand the description of the work injury, as IRE physicians now have a duty to “scrutinize each ‘condition’ hinted at by a claimant, and then determine which, if any, are ‘fairly attributable’ to the compensable injury.” Justice Wecht criticized the majority for requiring IRE physicians to “go beyond” the scope of the injury as described in the Notice of Compensation Payable and act as a Workers’ Compensation Judge by expanding the description of the work injury. Finally, he noted that the 4th Edition of the AMA Guides, which was in effect at the time the Legislature enacted the IRE provisions, does not even provide a formula for calculating impairment percentages in the context of psychological conditions.
In a Dissenting Opinion authored by Justice Baer, he noted that the majority’s Opinion “will undermine the IRE process in general and permit claimants easily to invalidate otherwise fair IRE proceedings by simply expressing new physical and/or psychological conditions unknown to the employer…”. Justice Baer further noted that an employer has only one opportunity under the Act to utilize the self-executing change in disability status, which is now jeopardized by the majority’s holding. He would have held that the IRE physician properly limited his evaluation to the impairments associated with the compensable injury as set forth in the Notice of Compensation Payable.
Recommendations for Handling Further Claims and Litigation
As the Commonwealth Court had noted in its Memorandum Opinion and as Justices Wecht and Baer noted in their Dissenting Opinions, the Supreme Court’s holding will encourage claimants to sabotage impairment rating evaluations by waiting until the IRE examination is performed, and then seeking both to challenge the description of the work injury and to invalidate the IRE determination.
In order to attempt to combat such challenges, employers should examine all medical records prior to scheduling an IRE examination in order to determine whether the claimant has treated for any injuries that are not covered by the Notice of Compensation Payable or a Judge’s decision and weigh the pros and cons of obtaining an IRE determination versus potentially expanding the description of the work injury.
In addition, during litigation challenging the description of the injury and the validity of the IRE, it will be imperative that employers present credible medical evidence disputing the causal relationship of the alleged additional injuries to the work injury, so that the Judge does not amend the description of the work injury to include those additional alleged injuries. In addition, if there was prior litigation in which the claimants could have and should have attempted to challenge the description of the work injury, employers can argue that any such post-IRE examination attempts to add new injuries to the description of the work injury is barred by res judicata and/or collateral estoppel.
Every claim should be assessed on a case-by-case basis. For questions concerning a particular case, please contact the attorneys of Post & Schell’s Workers’ Compensation Department.
About the Author
Karyn Dobroskey Rienzi focuses her practice on post-trial and appellate matters, predominantly in the areas of workers’ compensation and casualty. She regularly appears before the Pennsylvania Workers’ Compensation Appeal Board and has argued before the Pennsylvania Commonwealth Court and the Pennsylvania Superior Court.