We have previously discussed Impairment Rating Evaluations (IREs) in our blog. An IRE is a tool the PA workers’ comp insurance carrier can use to start the clock ticking on the maximum 500 weeks of partial disability available to an injured worker. While an IRE can change the status of an injured worker, from total to partial disability, the amount of the compensation benefits is not changed. A threshold issue in an IRE is whether the injured worker has reached Maximum Medical Improvement (MMI); until this finding is made, an impairment rating cannot be determined.
Since whether the injured worker has reached MMI is a threshold issue for a workers’ comp insurance carrier litigating an IRE in PA, one would think there cannot be a successful IRE without such a finding. One might be wrong.
In Arvilla Oilfield Services, Inc. v. Workers’ Compensation Appeal Board (Carlson), the injured worker suffered a labral tear in his right hip, and also hurt his low back and right shoulder in the accident at work. There was surgery on the hip, followed by a total hip replacement. In addition to other litigation, the workers’ compensation insurance carrier filed a Petition for Modification to change the disability status of the injured worker, based on an IRE.
The doctor who performed the IRE testified that the injured worker had reached MMI. No contrary testimony was offered by the injured worker on this issue. After hearing all of the evidence, the Workers’ Compensation Judge (WCJ) rejected the opinion of the IRE doctor that the injured worker had reached MMI. The WCJ therefore denied the Petition for Modification. In the decision, the WCJ explained the reason for the finding was that, ” . . . According to Dr. Sciamanda’s testimony[the doctor for the injured worker], the Claimant is continuing to make progress and he continues to have setbacks, at times. Dr. Moldovan’s opinion [the IRE doctor] that the Claimant is at maximum medical improvement because [he] is ‘as good as he is going to get’ is not supported by the treatment records.”
Agreeing that the condition of the injured worker was not proven to be static, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ.
Upon further appeal, the Commonwealth Court of Pennsylvania vacated this decision. Though the Court observed that the WCJ is the ultimate determiner of credibility, and that such determinations would not be disturbed on appeal, it would appear that is precisely what the Court did. Since the doctor offered by the injured worker did not directly testify regarding MMI, the WCJ was wrong to take part of the testimony out of context to support the finding made by the WCJ, said the Court. Though the Court spends several pages explaining why the WCJ improperly found the IRE physician not credible, a plain reading simply suggests the Court is explaining why the Court felt the IRE physician was credible (which, of course, is an attack on a credibility determination, not permissible under the Pennsylvania Workers’ Compensation Act).
Admittedly, however, the Court did remand the matter back to the WCJ, to consider the testimony of the IRE physician under the “proper standard” as elucidated by the Court. Therefore, the WCJ does retain the ability to write new Findings of Fact, sufficiently explaining why the WCJ rejects the opinion of the IRE doctor. Though it might appear the findings of the WCJ may have been trod upon, at least the Court is giving the WCJ a chance to still make the appropriate determination of credibility.