IA Constr. Corp. v. Workers' Comp. Appeal Bd., 18 WAP 2015

• Decision Date: 25 May 2016
• Docket Number: No. 18 WAP 2015,18 WAP 2015
• Citation: 139 A.3d 154
• Parties: IA CONSTRUCTION CORPORATION and Liberty Mutual Insurance Co. v. WORKERS' COMPENSATION APPEAL BOARD (RHODES) Appeal of: Jeffrey Rhodes.
• Court: Pennsylvania Supreme Court

139 A.3d 154

IA CONSTRUCTION CORPORATION and Liberty Mutual Insurance Co.

v.WORKERS' COMPENSATION APPEAL BOARD (RHODES)

Appeal of: Jeffrey Rhodes.

No. 18 WAP 2015

Supreme Court of Pennsylvania.

Argued April 5, 2016.

Decided May 25, 2016.

Thomas C. Baumann, Esq., Pittsburgh, for Jeffrey Rhodes.

Daniel King Bricmont, Esq., Caroselli, Beachler, McTiernan & Coleman, L.L.C., Pittsburgh, for Pennsylvania Association For Justice.

Terry Lee M. Bashline, Esq., Liberty Mutual Insurance Group, Philadelphia, for IA Construction Corporation and Liberty Mutual Insurance Co.

Amber Marie Kenger, Esq., Workers Compensation Appeal Board, for Workers Compensation Appeal Board.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

OPINION

Chief Justice SAYLOR

.

This appeal centers on the validity of a workers' compensation judge's decision to reject opinion testimony from an independent medical witness presented by an employer and insurer, in the absence of any contrary evidence adduced by the claimant.

Background

The matter arises in the context of Section 306(a.2) of the Workers' Compensation Act,¹ 77 P.S. § 511.2

, which was promulgated in 1996 as a component of the General Assembly's efforts to address the rising costs of the workers' compensation liability scheme. See

Gardner v. WCAB (Genesis Health Ventures) , 585 Pa. 366, 368 n. 1, 888 A.2d 758, 759 n. 1 (2005). Per the statute, after a workers' compensation claimant has received total disability benefits for a period of 104 weeks, the insurer is to request an impairment rating evaluation, or an IRE, which is a medical examination directed toward assessing the degree of a claimant's impairment attributable to a compensable injury. See 77 P.S. § 511.2(1). “Impairment,” in this context, connotes an anatomic or functional abnormality or loss resulting from a compensable injury that is reasonably presumed to be permanent, id. § 511.2(8)(i), as distinguished from “disability,” which more broadly concerns the loss of earnings capacity, see

Dillon v. WCAB (Greenwich Collieries) , 536 Pa. 490, 501, 640 A.2d 386, 392 (1994) (explaining that the concept of “disability” under the Act encompasses both capacity to work and job availability ). See generally

Diehl v. WCAB (I.A.Constr.) , 607 Pa. 254, 277–79, 5 A.3d 230, 244–45 (2010) (elaborating upon the distinction between impairment and disability).

As a consequence of an effective impairment rating of less than 50 percent, the designation of the claimant's disability is converted from total to partial, thereby limiting the insurer's otherwise continuing liability to benefits payable throughout a maximum, closed-end period of 500 weeks. See 77 P.S. § 511.2(7)

. Accordingly, one main purport of the statute is that a claimant whose condition may continue to meet the conventional definition of total “disability”—a concept centered on overall earnings capacity encompassing both physical capacity and job availability—may nevertheless be limited in the time frame during which he or she may receive workers' compensation benefits. See

Diehl, 607 Pa. at 280, 5 A.3d at 246 (explaining that an employer/insurer is not required to produce evidence of earning power or job availability to support conversion of a disability designation from total to partial under Section 306(a.2), based on an effective impairment rating of less than 50 percent). See generally David. B. Torrey & Andrew E. Greenberg, 6 West's Pa. Practice Series, Workers' Compensation: Law and Practice, § 6:41 (3rd ed. 2008) (“[T]he 500 weeks provides a horizon with regard to the claimant's entitlement and the employer's liability.”).

Of additional significance to the present matter, a duly rendered impairment rating is automatically effective if the employer/insurer requested the examination within 60 days after the expiration of the 104–week period prescribed by the statute. See Gardner, 585 Pa. at 373, 888 A.2d at 762

(construing Section 306(a.2)(1), 77 P.S. § 511.2(1) ). However, where, as here, the employer/insurer submits a later request for an IRE, the effect of the rating assessment is not automatic. Rather, such opinion must be vetted through the traditional administrative adjudicatory process, upon the employer/insurer's submission of a petition for modification of benefits. See

id. at 382, 888 A.2d at 768.

In 2005, the appellant, Jeffrey Rhodes (“Claimant”) suffered injuries in a vehicular accident, while in the course of his employment with the employer-appellee, IA Construction Corporation (hereinafter referred to with the company's insurer, Liberty Mutual Insurance Co., collectively, as “Employer”). Claimant filed a claim petition under the Act. See 77 P.S. § 711

.

In 2007, a workers' compensation judge granted this petition and awarded total disability benefits, see id. § 511(1), finding that Claimant had sustained work-related injuries, including traumatic brain injury

with organic affective changes, persistent cognitive problems, memory impairment, posttraumatic headaches, posttraumatic vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries.

Several years later, Employer filed a specialized notice under governing administrative regulations designed to initiate the impairment rating process. See 34 Pa.Code § 123.102(e)

. The Department of Labor and Industry's Bureau of Workers' Compensation (the “Bureau”), in turn, designated M. Bud Lateef, M.D., a physician maintaining board certifications in physical, rehabilitation, and pain medicine, to conduct an IRE. Subsequently, based on the results of the ensuing examination—and given that the IRE had been requested outside the period associated with a rating accorded automatic effect—Employer filed a petition seeking to modify the workers' compensation benefits payable to Claimant. See 77 P.S. § 772.

To develop a record, Employer proceeded with a deposition of Dr. Lateef, who assigned an impairment rating of 34 percent to Claimant. The physician testified that he had examined Claimant and reviewed various medical records. According to Dr. Lateef, he confirmed three primary present diagnoses, which he described as traumatic brain injury

, a cervical condition in the nature of a herniated disc, and a spinal condition resulting in gait dysfunction. Dr. Lateef explained that he assigned a discrete impairment rating to each of these conditions, which, together, comprised the 34 percent “whole person impairment rating” under the Sixth Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”).² Deposition of M. Bud Lateef dated Feb. 10, 2011, in Rhodes v. IA Constr. Corp., No. 390–391992 (DLI, Bur. of Workers' Comp.), at 14. The physician further opined that Claimant had reached a maximum level of medical improvement.

In hearings before a workers' compensation judge (the “WCJ”), Employer presented Dr. Lateef's deposition testimony and the physician's underlying report.³ Claimant did not testify on his own behalf, nor did he present medical testimony or other evidence.

The WCJ denied Employer's modification petition, rejecting Dr. Lateef's impairment rating opinion. Initially, the WCJ expressed a concern that Dr. Lateef had inappropriately “lumped” an array of discrete injuries into three categories. Decision of WCJ Cheryl A. Ignasiak in Rhodes v. IA Constr. Corp., Claim No. 2847534, slip op. at 3 (DLI, Workers' Comp. Office of Adjudication Sep. 26, 2011). In this regard, the WCJ referred back to the series of injuries accepted by the workers' compensation judge in the initial claims determination and criticized Dr. Lateef for failing to adequately account for all of these.

The WCJ then focused her concern upon the significant portion of Claimant's impairment rating attributable to cognitive issues. In her estimation, Dr. Lateef's assessment of cognition was an unduly limited one, since he performed only a cursory examination and otherwise relied upon only a limited range of medical records. In the circumstances—and particularly since Dr. Lateef specialized in physical medicine and pain management, not neurology—the WCJ indicated that she was unpersuaded by his opinion.

On Employer's appeal, the WCAB affirmed in a divided opinion. The majority relied substantially on the principle that a WCJ, as the factfinder, appropriately determines the weight to be accorded to the evidence presented. See Rhodes v. IA Constr. Co., No. A11–1631, slip op., at 4 (WCAB Nov. 5, 2013) (“The Judge chose to place great weight on the fact that Dr. Lateef was not more qualified in dealing with traumatic brain injuries

and we won't disturb her determination.”). The dissenting members, on the other hand, observed that, procedurally, the IRE had been conducted in accordance with the requirements of the Act. Furthermore, they attributed significance to the fact that employers do not participate in the process of selecting IRE physicians, and that such function is administered by the Bureau. See 77 P.S. § 511.2(1) (specifying that IRE physicians are to be “chosen by agreement of the parties, or as designated by the department”). Although the dissenters acknowledged that “Dr. Lateef's report could have been greatly improved upon,” Rhodes, No. A11–1631, slip op., at 8 (Frioni, Chairman, dissenting), they nevertheless were sufficiently convinced by the report and associated opinion testimony.

On further appeal, the Commonwealth Court reversed in a published decision. See IA Constr. Corp. v. WCAB (Rhodes) , 110 A.3d 1096 (Pa.Cmwlth.2015)

. From the outset of its analysis, the intermediate court stressed that Dr. Lateef met the WCA's stated qualifications for IRE physicians and that he followed the statutorily-prescribed methodology for conducting the examination. See

id. at 1101–02 (citing 77 P.S. § 511.2(1) ). The court took the position, therefore, that the WCJ lacked the authority to reject the physician's testimony on the basis that cognitive impairment was outside the area of his...