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COMMONWEALTH COURT REJECTS CONCLUSION THAT IME IS STALE AND UNUSABLE AFTER SIX MONTHS

See:Verizon Pennsylvania, Inc. v. WCAB (Guyders), 999 A.2d 665 (Pa. Cmwlth. 7/19/2010).

In Guyders, the employer obtained an independent medical exam on October 27, 2003 with Dr. Lawrence Weiss. Job development was then conducted pursuant to Kachinski wherein Claimant was referred to 73 jobs between 2003 and 2006. Employer thereafter filed a Petition for Modification. Claimant testified that her carpal tunnel symptoms had not changed since 1997. She also presented testimony from a vocational expert that a medical examination becomes outdated within six months to a year because a Claimant’s physical condition may change.

The WCJ denied employer’s Modification and Suspension Petition. The judge accepted the testimony of Claimant and her vocational expert. The Judge also accepted the testimony of employer’s IME physician regarding Claimant’s ability to perform the various jobs, but only for the period of time from October 2003 through April 2004. Because Claimant’s vocational expert had stated that the medical referrals tend to become “stale” after six months to a year, the WCJ decided that the IME became useless after six months.

On appeal, the court first reviewed the issue of whether the IME had become stale or useless. Employer cited Saunders House v. WCAB (Russell), 628 A.2d 488 (Pa. Cmwlth. 1993), wherein modification was granted based on job referrals conducted more than one year after IME.

The Commonwealth Court agreed that there were several problems with the WCJ conclusion that the IME became invalid after six months. First, the vocational expert is not a physician and was not competent to render an opinion that an IME of a claimant who has reached maximum medical improvement of her work related carpal tunnel syndrome must be done every six months. The Court cited case law wherein a witness may only offer expert testimony regarding matters in which he or she is qualified as an expert. Even so, the Court noted the vocational expert only spoke in generalities and not about Claimant’s specific work injury. The court explained, “logically, the need for a new IME will be different in each case, depending on the work injury and depending on the claimant’s condition. For example, should a Claimant’s work related condition change shortly after and IME, that IME could become “stale” well before six months have passed. On the other hand, if the Claimant’s condition remains stable, there is no reason why IME results would not enjoy continued validity. Here, Claimant had reached maximum medical improvement, suggesting that her condition could only improve with time, not get worse.”

Secondly, the Court noted the vocational expert actually agreed claimant was employable and capable of working within the medical restrictions provided by Dr. Weiss. Thus, the statement that the report became invalid after six months was no more than speculation and did not constitute substantial evidence. The Court highlighted that the vocational expert did not rely on his own speculation.

Thirdly, the Court viewed the WCJ’s decision to place a six month expiration date on the IME as arbitrary. This is where the vocational expert said in his view IME’s become stale within six months to a year and the judge chose the shorter period. It was also arbitrary because the IME physician testified that at the time of IME, claimant had reached maximum medical improvement and needed no further medical treatment. This was not refuted by the claimant. It was highlighted that claimant did not produce any medical evidence and did not show a change in her condition subsequent to IME. Instead, she herself testified that her work injury did not change after 1997.

The Court summarized that the Judge’s determination that the IME expired after six months was not supported by substantial evidence and was in error. The case was remanded so that judge could make a determination under Kachinski on the job referrals that were not considered. The Court further explained a holding that IME results become unusable after six months, even where the claimant’s condition remains stable, would have the practical result of subjecting a Claimant to serial IME’s by an employer in order to prevent a staleness claim. This would cause inconvenience to the claimant and additional expenses for the employer and would serve no legitimate purpose.

The court also addressed the judge’s failure to find bad faith. The claimant had listed “disabled and cannot work” on her application. However, the application was not submitted into evidence and a verification statement from the prospective employer indicated that applicant listed this as the reason for leaving her last job. Claimant had explained that she did write “carpal tunnel-disabled” on applications in response to questions regarding why she left her last employment. She stated that was the only part where she listed disability because she did not get fired or retire and instead, went on disability. The judge credited this testimony and the court indicated it could not say the judge erred in finding claimant did not act in bad faith.

Practice pointer: Although the Commonwealth Court rejected claimant’s argument that an IME was state after six months, it may still be wise to obtain job development or conduct earning power within six months of exam. This is where you need to convince the WCJ that job development or earning power is within claimant’s work capabilities. If exam is conducted over the six-month period, claimant can argue that her condition has worsened or present testimony from a contrary medical provider. Thus, your case is weaker going into litigation. However, the Verizon case appears very well reasoned and provides the employer with a valuable argument to use in its litigation. We receive many referrals where earning power or job development is conducted after the six-month period. We attempt to obtain concessions like Verizon that claimant’s condition has not changed. As Verizon noted, a six-month rule is not applicable in every case and instead the case must be judged by its specific facts.