Fried, Kane, Walters, Zuschlag and Grochmal PO Box 955
Gibsonia, PA 15044-0955

FKWZ&G Proves IRE Valid when Prospective Surgery does not Affect Finding of MMI

Neff v. WCAB (Pennsylvania Game Commission), 109 A.3d 291 (Pa. Cmwlth. 2015), filed January 8, 2015

Factual and Procedural Background
In a case litigated by Attorney James Mazzotta of FKWZ&G, the Court upheld a modification of claimant's benefits based on and IRE although claimant threatened to undergo additional surgery. Specifically, in Neff, Employer obtained an IRE in December 2010, which determined Claimant had reached MMI and had a whole person impairment rating of 1%. Following the IRE, FKWZ&G filed a Modification Petition alleging that Claimant’s benefits should be modified to partial disability based on a permanent impairment of less than 50%. Claimant’s work injury was lateral epicondylitis of the right elbow. It was undisputed that Claimant could undergo additional surgery, a matter which was addressed in testimony by both physicians. However, the WCJ found that Claimant had reached MMI based on the AMA Guides and granted the Modification Petition.

Claimant appealed to the WCAB, which affirmed the WCJ’s decision.

Commonwealth Court Decision
The Commonwealth Court referred to the AMA Guides for a definition of when a Claimant can be found to have reached maximum medical improvement (MMI). In referencing Combine v. WCAB (National Fuel Gas Distribution Corp.), the Court noted that MMI is reached, per the Guides, when “Patients are as good as they are going to be from the medical and surgical treatment available to them. It can also be conceptualized as a date from which further recovery or deterioration is not anticipated, although over time (beyond 12 months) there may be some expected change…an individual is at MMI when his condition has become static or stable and that while further deterioration or recovery may occur at some point in the future, one would not expect a change in condition at any time in the immediate future.” The IRE physician here testified that he was aware the Claimant had the potential for future surgery, but that Claimant can still be at MMI with or without treatment including surgical procedures. It was acknowledged that surgery was a reasonable option and had the potential to improve Claimant’s pain and symptoms, but it would not cure her condition and she would remain impaired with permanent damage. The IRE physician also testified that the surgery could actually result in a worsening of Claimant’s condition.

The Court held that reaching a determination of MMI was a matter of applying the AMA Guides, and that determination is an inherently medical determination. The WCJ may rely on an expert’s determination so long as the physician considers the appropriate factors required by the Guides in determining MMI. In the instant case, the IRE physician’s opinions had been found more credible and persuasive so that the Court upheld the decision of the WCJ and WCAB.

The Court also distinguished this case from Combine, in which the physician refused to render an opinion on whether that claimant had even reached MMI and performed the impairment rating evaluation without making such a determination. The Court pointed out that the IRE physician in this case repeatedly and unequivocally testified that Claimant had reached MMI.

Analysis/Practice Pointers
It remains necessary to establish that Claimant is at MMI when the IRE is conducted. Thus, we continue to recommend that you instruct the IRE physician to make this determination before conducting his/her exam. Fortunately, the Neff case has now clarified that the Employer can prevail although claimant alleges that she “may” undergo surgery. We have all seen cases where surgery is repeatedly mentioned in litigation, yet never takes place. We will now argue this is not relevant.