HARRISBURG, Pa. -- A leading labor and employment attorney advises employers to pay closer attention to work-related injuries and be sure to request that impairment rating evaluation physicians appointed by the Pennsylvania Department of Labor and Industry (DLI) defer evaluations of cases to other experts with specialized expertise in each medical situation.

Since 1996, the Workers’ Compensation Act section 306 has mapped out the framework for litigating long-term exposure to temporary total disability (TTD) benefits by using impairment rating evaluations (IREs). The work-related impairment has to be attributable to a compensable injury at less than 50 percent, according to the American Medical Association (AMA) guidelines for the evaluation of permanent impairment.

If an IRE identifies that a claimant is at maximum medical improvement and has an IRE rating off less than 50 percent under the AMA guidelines, the TTD benefits are capped at 104 weeks of payment. This usually prompts the claimant to use the remaining 500 weeks of temporary partial disability.

But case law recently has focused on which edition of the AMA guidelines are to be used in IRE cases.

In Commonwealth Court in Protz v. WCAB (Workers Compensation Appeals Board), it was upheld that that original fourth-edition AMA guidelines should be used, not the sixth edition. In I.A. Construction Corp. v. WCAB, the Pennsylvania Supreme Court held that credibility attacks based on a DLI-appointed examiner’s lack of clinical expertise actually can be successful, said Paul Clouser, attorney in the labor and employment group for McNees Wallace & Nurick LLC of Pennsylvania.

In Protz v. WCAB, an employee who worked on a road construction crew suffered serious injuries, including a traumatic brain injury. The employer requested that a DLI-appointed IRE specialist perform the evaluation to determine the level of impairment. That physician, using AMA guidelines, determined there was a 34 percent impairment rating, which allowed the employer to cap its long-term benefit exposure.

The employee appealed and his counsel successfully challenged the methodology used by the appointed doctor to assess the employee’s neurological and cognitive impairments related to the traumatic brain injury. The judge ended up rejecting the physician’s opinion as not credible and the Supreme Court affirmed the judge’s role as fact finder and as authoritative enough to reject the sole medical opinion offered in the case.

“The Supreme Court appears to be restoring autonomy to the WC (workers' compensation) judges, as the arbiters of credibility, to decide what medical testimony, if any, is believable in litigation,” Clouser told the Pennsylvania Record. “The issue is not so much that only one doctor testified, but rather what was the quality of that testimony, given the doctor’s limited clinical experience with traumatic brain injury patients.”

Clouser recommended employers in impairment rating cases request that the DLI-appointed IRE physician defer the case to other specialized physicians, which is allowed under DLI regulations.

“This ruling was not particularly surprising. I think the court has been waiting for a compelling case in which to make these points,” he said. “The ruling does not really impact procedural aspects of IRE practice, other than adding an extra step in the evaluation process to gather the opinions of any needed specialists.”

Clouser said an IME (independent medical examination) completed by a specialist also can be used to seek a second opinion for a specialized area of impairment pertaining to the work-related injuries.

“The take-away for employers is to carefully analyze the nature and extent of the work-related injuries at the time an IRE is requested, and to not be shy about asking the IRE examiner to appoint a specialist to review and measure any disabilities that fall outside of his or her area of expertise,” he said. “Alternatively, an IRE can be coupled with an IME, so long as the IME examiner possesses all of the necessary credentials and has the clinical experience to address specialized injuries such as brain injuries or injuries involving cognitive deficits.”

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