As the state’s workers’ compensation bar anxiously anticipates the Pennsylvania Supreme Court’s consideration of Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 131 A.3d 572 (Pa. Commw. 2016), last week the court issued a unanimous decision in another case dealing with impairment rating evaluations (IRE), IA Construction v. WCAB (Rhodes), No. 18 WAP 2015. Recall the Commonwealth Court in Protz held that Section 306(a.2) of the Workers’ Compensation Act constitutes an unconstitutional delegation of legislative authority to the American Medical Association with the legislature directing the use of “the most recent version” of the AMA guides to determine permanent impairment. The Supreme Court agreed to consider the Protz case and even granted petitions for allowance of appeal from both the claimant and the defendant. Notwithstanding that fact, the court made it clear in a footnote in Rhodes that the constitutionality of Section 306(a.2) was not raised in the case and would not be considered in the appeal.
The main issue in Rhodes is whether a workers’ compensation judge (WCJ) is permitted to reject the opinion of an IRE doctor, whose testimony was unrebutted. Essentially, the employer requested an IRE well beyond the 104-week period, requiring it to seek its remedy through a modification petition under the “traditional administrative process” first identified in Gardner v. WCAB (Genesis Health Ventures), 888 A.2d 758 (Pa. 2005), and later clarified multiple times in Diehl v. WCAB (IA Construction), 5 A.3d 230 (Pa. 2010). To that end, the employer presented the deposition of the IRE physician, a physiatrist and pain management specialist, who testified as to the impairment rating he assigned to a claimant he described as having a traumatic brain injury among other things. As is not uncommon in an IRE case, the claimant presented no evidence and merely relied on his cross-examination of the IRE doctor.
