Workers Compensation News Spring 2017
PA Workers' Compensation Cases of Note
By John W. Zatkos, Jr., Esq.
Physicians performing IREs must make whole body assessment; not limit the impairment rating to the listed injury
In Duffey v. WCAB (Trola-Dyne Inc.), the Pennsylvania Supreme Court reversed a recent Commonwealth Court decision, which affirmed the WCAB’s decision modifying an injured workers’ disability status from total to partial based upon an impairment rating evaluation (IRE) under the AMA Guidelines.
The Supreme Court remanded and reinstated the claimants benefits to total and invalidated the impairment rating evaluation because the physician or examiner, who performs the AMA Guideline impairment rating, must exercise independent professional judgment to make a whole body assessment of the degree of the impairment due to the compensable injury, which cannot be withheld on the basis that the physician examiner believes the undertaking is a more limited injury.
The Pennsylvania Supreme Court was ultimately to decide whether a Notice of Compensation Payable correctly described the range of the health care work-related conditions to be considered in an impairment rating evaluation.
What does this mean? What an injured worker should be aware of is that the impairment rating evaluator must consider not only the recognized work injury but, anything that may be related to an impairment or a disability. This requires counsel to make sure that the work injury is properly recognized and includes any and all diagnosis or potential diagnosis, which may be related to the underlying work injury.
Physician’s uncertainty as to whether an injury occurred does not negate his/her unequivocal testimony that an injured worker has recovered
In Hill v. Fresh DirectHoldings, Inc., the WCAB affirmed a workers’ compensation decision awarding benefits to a claimant for a closed period of workers’ compensation benefits based on the finding that the injured worker fully recovered as of February 18, 2014.
When the injured worker went for his IME, the doctor testified that he was unable to determine if a work injury had occurred, but if it had, the mechanism of the injury would be consistent with those reported in the injured worker. He further testified that if the claimant had sustained those injuries, he was now recovered.
In this case, the Board determined that the medical expert’s uncertainty as to whether the claimant sustained a work-related injury will not render that medical experts testimony as insufficient to terminate the injured workers’ rights to benefits. As long as the medical expert provides credible, unequivocal testimony that the claimant is fully recovered from his work-injury, the evidence is considered sufficient to meet the Employer’s burden of proof.
What does this mean? The importance of this case is to show that counsel for the injured worker must make sure that not only the medical expert for the insurance company knows the extent of the work injury but, also review the medical evidence itself to show that even if there is a presumption of the extent of the work injury that the presumption could be incorrect and therefore, justifies ongoing workers’ compensation benefits and not allow a termination of the injured workers’ benefits.