Commonwealth v. Workers' Compensation Appeal Board
103 A.3d 397
| Pa. Commw. Ct. | 2014Background
- Claimant (Dallas Slessler) sustained severe work injuries in 2003 (back, ribs, neck leading to C5-6 fusion) and was placed on total workers’ compensation; NCP originally listed neck and right Achilles strain; PTSD and chronic pain were later added.
- Employer filed a modification petition after an IRE by Dr. Michael Wolk (board-certified physiatrist) found an 8% whole person impairment, seeking reduction from total to partial benefits.
- Claimant offered rebuttal evidence including deposition testimony and an IRE/calculation by psychologist Dr. David Longo (not a medical doctor and not IRE‑certified) diagnosing major depression, PTSD, panic disorder, and assessing a high combined impairment (50–54%).
- WCJ excluded neither expert but found Dr. Wolk’s IRE incompetent (insufficient foundation re: application of the AMA Guides) and credited Dr. Longo enough to deny modification; WCJ also found additional work‑related conditions.
- The Board affirmed denial of modification but reversed the WCJ’s separate findings about additional conditions; employer appealed focusing on whether WCJ erred in treating Dr. Wolk’s testimony as incompetent and in relying on Dr. Longo’s non‑medical IRE.
- Commonwealth Court vacated in part and remanded: held WCJ erred as a matter of law in declaring Dr. Wolk’s testimony incompetent (that was a credibility/weight issue), and held a claimant may not rebut a competent medical IRE with a non‑medical psychologist’s IRE; remand required for fresh findings supported by record evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WCJ properly ruled Dr. Wolk’s IRE testimony incompetent for failing to show he applied the AMA Guides | Dr. Wolk’s IRE lacked foundation; WCJ should exclude it | Employer: WCJ substituted his own medical judgment for expert’s; Dr. Wolk was competent and met L&I IRE qualifications | Court: Error to deem Dr. Wolk incompetent as a matter of law; that is a credibility/weight issue for WCJ supported by record analysis on remand |
| Whether a claimant can rebut a competent medical IRE with a non‑medical psychologist’s IRE | Claimant: Dr. Longo’s psychological IRE is competent and rebuts Dr. Wolk | Employer: Dr. Longo is not a medical/IRE‑certified physician and cannot provide an IRE for rating purposes | Court: A claimant rebutting competent IRE evidence must present comparable medical evidence (i.e., impairment ratings from physicians as defined by regulations); psychologist’s IRE testimony is not competent for that purpose |
| Whether WCJ may use judicial notice of lack of local certified IRE physicians to excuse regulatory qualifications | Claimant: Due process concerns justify accepting non‑certified expert due to geographic/access issues | Employer: Regulations don’t require state‑certified physicians for claimant rebuttal; must be medical/osteopathic practitioners | Court: WCJ erred to rely on judicial notice to excuse regulatory qualifications; regulations, not AMA Guides, govern and require medical doctors for IREs |
| Standard of review and remand instructions | N/A | Employer sought remand for proper analysis | Court: Remand: exclude Dr. Longo’s IRE, let WCJ reassess Dr. Wolk’s credibility/competency with specific record support and not by the WCJ’s own medical opinion |
Key Cases Cited
- Diehl v. Workers’ Comp. Appeal Bd. (I.A. Constr.), 5 A.3d 230 (Pa. 2010) (an IRE outside the 60‑day window is evidence to be weighed, not automatic modification)
- Wintermyer v. Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478 (Pa. 2002) (appellate review includes capricious disregard of material competent evidence)
- Westmoreland Regional Hosp. v. Workers’ Comp. Appeal Bd. (Pickford), 29 A.3d 120 (Pa. Cmwlth. 2011) (claimant may rebut an IRE by attacking its reliability, but rebuttal may require an expert of comparable qualifications)
- Lookout Volunteer Fire Co. v. Workmen’s Comp. Appeal Bd. (Savercool), 418 A.2d 802 (Pa. Cmwlth. 1980) (expert incompetency where witness lacked familiarity with material facts)