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

WCJ Improperly Rejects IRE Physician Opinion on Basis that He is Not Qualified where the Physician Meets the Minimal Qualifications Outlined in the PAWC Act: i.e., Certified by the American Board of Medical Specialties Approved Board or its Osteopathic Equivalent and be Active in Clinical Practice for at Least 20 Hours Per Week.

IA Construction Corporation v. WCAB (Rhodes), 2151 C.D. 2013, filed February 19, 2015

Factual and Procedural History
Claimant initially filed a Claim Petition, which was granted by the WCJ for injuries of a traumatic brain injury with organic affective changes and persistent cognitive problems, particularly memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries.

In June 2010, approximately 3 years after that decision, employer obtained an IRE with Dr. Lateef, which resulted in a finding of 34% whole person impairment. Employer filed a Modification Petition, which was denied by the WCJ. Dr. Lateef had opined that claimant had reached MMI, and assigned the impairment based on diagnoses of traumatic brain injury, cervical HNP status post surgery, and gait dysfunction. Dr. Lateef had noted that the diagnoses provided were the conditions that were permanently limiting claimant’s ability to function, and the rating was not based on claimant’s initial injuries. He also indicated that the persistent cognitive problems, memory impairment, posttraumatic headaches, posttraumatic vertigo and impaired balance had been lumped into the traumatic brain injury diagnosis, and the neck and back injuries described by the WCJ were lumped into the cervical HNP diagnosis.

The WCJ noted that the doctor rated only three diagnoses and therefore did not find his testimony persuasive that all the injuries recognized by the previous WCJ could be lumped into the categories discussed. Furthermore, the WCJ noted that in calculating the impairment rating of the traumatic brain injury, that calculation was based primarily on records reviewed rather than any examination performed by the physician. The WCJ also noted that the IRE physician had placed no indication on the record that he treated persons with traumatic brain injuries on a consistent basis, and the IRE should have been completed by someone who was more qualified in that specialty.

The Board affirmed the WCJ, concluding that the WCJ had not erred in rejecting the IRE physician’s testimony on the basis that he was not the proper specialist to perform the IRE, and had not considered all of claimant’s injuries.

Commonwealth Court Decision
Initially, the Court addressed the issue of whether Dr. Lateef was qualified to conduct an IRE where the work injury included traumatic brain injury. The Court cited several convincing arguments made by the employer: (1) An IRE physician is not required to refer the IRE to a specialist and is required to rate only the injuries that are disabling as of the date of the IRE; (2) Employer has no ability to influence the choice of IRE physician or his findings; (3) Claimant did not object to the use of Dr. Lateef as the IRE physician at any point; (4) WCJ did not suggest a more suitable IRE physician or exercise her power to conduct a further investigation under the Act; and (5) Neither claimant nor the WCJ suggested that the impairment rating would have been different had a specialist been consulted. The Court initially cited Section 123.105(b) of the Regulations which outlines that when the IRE physician determines that the compensable injury incorporates more than one pathology, the physician may refer the employee to one or more physicians specializing in this specific pathologies which constitute the compensable injury. 34 Pa. Co. §123.103(b) (emphasis added). The Court then cited §306(a.2)(1) of the Act, which provides that an IRE physician must be “licensed in this Commonwealth…certified by an American Board of medical specialties approved Board or its osteopathic equivalent and be active in clinical practice for at least 20 hours per week, chosen by agreement of the parties, or as designated by the department.” The Court held that the WCJ may not impose greater qualifications than set forth by the Act.

Thus, the Judge could not reject the IRE opinion because the traumatic brain injury was not within the doctor’s specialty because this would impose qualifications in excess of those set forth in the Act. Regarding the WCJ’s conclusion that Dr. Lateef did not consider all diagnoses previously found compensable, the Court explained there was no support in the record for this opinion. The Court did not consider the issue of whether the diagnoses of organic effective changes and persistent cognitive problems were properly included in the diagnoses of traumatic brain injury and/or whether the diagnosis of cervical HNP status post surgery properly included the accepted musculoskeletal or myofascial neck and back injuries. Apparently the Court felt that such issues were medical in nature. Instead, as noted above, the Court merely states that there is no support in the record for the conclusion that Dr. Lateef improperly categorized the injury. Apparently, the Court would require a medical expert to testify that Dr. Lateef improperly categorized the diagnoses. Indeed, the Court quoted Chairman Al Fioroni where he highlighted that this was not a situation where claimant’s medical evidence was more convincing. Specifically, claimant submitted no medical evidence to support the Judge’s conclusion regarding Dr. Lateef’s misdiagnoses.

Practice Pointer:
This case emphasizes the fact that IRE opinions can be a valuable asset to an employer/insurance carrier. The Court has recognized that the Bureau assigns the physician who performs the IRE and that physician is qualified when he or she meets the minimal qualifications set forth by the Act, i.e., the physician must be certified by the American Board of Medical Specialties or its osteopathic equivalent and be active in clinical practice for at least 20 hours per week. The Court’s decision also clarifies that there is no added requirement that the IRE physician specialized in the treatment of the compensable work injury.