Since 1996, Section 306(a.2) of the Workers’ Compensation Act has offered a framework for litigating long term exposure to temporary total disability (“TTD”) benefits, through the use of impairment rating evaluations (“IREs”), by showing that the work-related impairment attributable to a compensable injury is less than 50%, according to the AMA Guidelines to the Evaluation of Permanent Impairment. If a given IRE establishes that a claimant, who is at maximum medical improvement (“MMI”), has an IRE rating less than 50% under the AMA guidelines, the TTD benefits are capped at 104 weeks of payments, after which the Claimant starts chipping away at the remaining 500 weeks of temporary partial disability (“TPD”) entitlement.
Recently, case law in this area has focused on which edition of the AMA Guidelines is to be used in IRE cases (i.e., last year, the Commonwealth Court in Protz v. WCAB, held that the original fourth edition AMA Guidelines should be used, rather than the current sixth edition), and whether the IRE examiner appointed by the Bureau can be successfully challenged on “credibility” grounds, where the primary injuries fall outside of the examiner’s expertise and clinical practice specialty.
In the recent case of I.A. Construction Corp. v. WCAB (Rhodes), the Pennsylvania Supreme Court held that credibility attacks based on a bureau appointed examiner’s lack of clinical expertise can indeed be successful, even where the opposing party offers no competing medical testimony or evidence. In this case, the employee, Rhodes, worked on a road construction crew. He suffered serious injuries, including a traumatic brain injury, in addition to multiple physical/orthopedic injuries. Eventually, the employer requested that a bureau appointed IRE specialist perform an evaluation to determine the percentage of impairment. The bureau assigned a physical medicine and rehabilitation specialist, Dr. Lateet, to perform the assessment. Dr. Lateet, applying the AMA guidelines, came up with a 34% impairment rating, allowing the employer to “cap” its long term benefits exposure.
On appeal, Claimant’s counsel succeeded in challenging the methodology used by Dr. Lateet to assess the employee’s neurological and cognitive impairments related to the traumatic brain injury. The judge ultimately rejected Dr. Lateet’s opinion as not credible and the Supreme Court affirmed the judge’s role as the fact finder and his authority to reject the sole medical opinion offered in the case on the basis of the doctor’s lack of expertise and superficial assessment of the traumatic brain injury problems.
The lesson for employers in impairment rating cases is to request that the bureau appointed IRE physician defer to other experts with specialized expertise (i.e., a neurologist or neuropsychologist in the case of a head injury), as permitted by the bureau regulations (i.e. 34 Pa.Code § 123.105(b). This can be done with a letter to the appointed IRE physician, once the designation is made.
Alternatively, an IME by a needed specialist can be used to seek a “second opinion” on any specialized area of impairment that may be part of the work-related injuries at issue. The judge can then accept the impairment ratings of each specialist in their specified areas of expertise. Remember, however, that the expert must meet all requirements to perform an IRE to be competent to testify.
