IA Construction Corp. & Liberty Mutual Ins. Co. v. WCAB (Rhodes) (Pa. Cmwlth. No. 2151 C.D. 2013, filed Feb. 19, 2015) (Brobson, J., w/Leadebetter, J., & Colins, S.J.).
Claimant sustained traumatic brain injury with multiple aspects (memory loss, cognitive problems, vertigo, etc.); original WC petition granted 1/07. In 7/10, Employer sought modification based on IRE by Dr. Lateef, which resulted in finding of 34% impairment & maximum medical improvement. After hearings, WCJ (not the same as original) denied Employer’s modification petition. WCJ rejected Dr. Lateef’s opinion outright, critiquing: Dr.’s decision to “lump together” Claimant’s injuries into certain categories of his own determination, Dr.’s basing impairment rating primarily on records rather than personal examination of Claimant, and Dr.’s going forward with the IRE when he was not a specialist or even particularly experienced in traumatic brain injuries. WCAB affirmed.
Cmwlth Ct: Reverse. WCJ has discretion to accept or reject IRE report, but must have some basis in record or law; WCJ here had neither. Specialist might have been preferable, but Dr. here was board certified and his although his report “could have been improved on,” it met statutory standards and WCJ may not impose greater qualifications than those in the Act. Nor did Claimant elicit any evidence of record that could support the WCJ’s determination.
Takeaway: WCJ rejection of an IRE report favorable to Employer may not stand on appeal if it lacks support in record or law and Claimant makes no effort (or fails) to make up the lapse or challenge the IRE report.