Back in February, 2015, we posted a blog entry expressing our disappointment in the decision rendered by the Commonwealth Court of Pennsylvania in the matter of IA Construction Corporation v. Workers’ Compensation Appeal Board (Rhodes). We are now delighted to relate that the Supreme Court of Pennsylvania, the top appellate court in PA, has now reversed the decision of the Commonwealth Court, and reinstated the decision reached by the Workers’ Compensation Judge (WCJ) [and affirmed by the Workers’ Compensation Appeal Board (WCAB)].
This case involved an Impairment Rating Evaluation (IRE). As we discuss on our website, if a workers’ compensation insurance carrier obtains a whole body impairment rating of an injured worker of less than 50%, more than 60 days after the injured worker receives 104 weeks of total disability benefits, the insurance carrier cannot automatically change the status of disability from “total” to “partial.” Instead, the insurance company must file a Petition for Modification to have a WCJ order such a change.
In this matter, the workers’ comp insurance carrier took the deposition of the IRE physician. The injured worker offered no evidence, but argued that the testimony of the IRE physician was not credible (and that, thus, the Petition for Modification should be denied). Finding the IRE physician not credible, the WCJ did deny the Petition. The WCAB affirmed the decision.
As we discussed in our blog post, the Commonwealth Court reversed the decision of the WCJ. We were disappointed as we believed the Court did not give proper deference to the determination of credibility made by the WCJ.
The Supreme Court of Pennsylvania observed that when the insurance carrier needs to litigate a Petition for Modification in this context, to change the status of disability based on an IRE, the burden of persuasion is the same as in any case litigated before a WCJ. The Commonwealth Court had confused whether the medical witness was “qualified” with whether the witness was “persuasive.” Though the physician was, indeed, qualified to testify, that did not mean that his opinion was automatically persuasive. This is part of the purview of a WCJ – to determine whether any witness, including an IRE physician, is credible. Finding sufficient reason in the decision authored by the WCJ to reject the opinion offered by the IRE physician, the Supreme Court found that the Commonwealth Court overstepped its bounds in reversing the decision of the WCJ.