Testimony of Psychologist Insufficient to Prevent Disability Status Change in PA Workers’ Comp

We have previously discussed Impairment Rating Evaluations (IREs), the tool insurance carriers use to change the status of injured workers in PA from total to partial disability. Unless strict time periods are obeyed, the insurance carrier has the burden to file a Petition for Modification, and prove the injured worker has a whole body impairment (WBI) of less than 50%, to get this change of status.

Recently, the Commonwealth Court of Pennsylvania addressed the issue of how an injured worker can defend such a petition. In Commonwealth of Pennsylvania/DPW – Loysville Youth Center v. Workers’ Compensation Appeal Board (Slessler), the IRE physician found a WBI of 8%. The injured worker took the deposition of his psychologist, since part of the injury was emotional. This psychologist was licensed, but not licensed to practice in Pennsylvania. Also, the psychologist admitted he did not meet the requirements issued by the Bureau of Workers’ Compensation for a physician certified to perform IREs in PA.

After hearing the testimony and reviewing the evidence, the Workers’ Compensation Judge (WCJ) denied the Petition for Modification. The WCJ found the psychologist credible, and also found him competent, despite his inability to meet the certification requirements. Specifically, the WCJ found this to be an issue regarding the weight, rather than the admissibility, to be given to the opinion. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB). [Other Petitions were also litigated, but none are relevant to the appeal].

The Commonwealth Court of Pennsylvania reversed this decision, and remanded the matter back to the WCJ, to review the opinion of the IRE physician, without considering the testimony of the psychologist. Though a psychologist (not meeting the IRE certification requirements) is competent to testify on a Claim Petition (and, seemingly, any other Petition), he or she is NOT competent to address or dispute testimony on a Petition to Modify, based on an IRE. The Court explained that the Pennsylvania Workers’ Compensation Act sets forth this certification requirement for the IRE physician, so it must be challenged by a similarly qualified physician.

With all due respect, we find this decision absurd. The burden of proof in this Petition rests squarely with Defendant, who must prove the injured worker is less than 50% impaired as a result of the work injury. It astounds us that a licensed medical practitioner, able to treat an injured worker in PA, is not competent to criticize the IRE physician. The finding by the WCJ, that this is an issue as to the weight, rather than the admissibility, would seem fair and just, and consistent with the humanitarian objectives of the PA Workers’ Compensation Act. The evidence presented by the insurance carrier in this matter was not accepted by the WCJ, and the WCJ sufficiently explained the reasons for his conclusions. In most situations, this means the Petition should be denied. This case is no exception.

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