Case Law Update I Commonwealth v. WCAB (Slessler) I PA Work Injury

November 4, 2014

The employer filed a Mod IRE Petition. To rebut the IRE, the claimant offered deposition testimony of a psychologist, who testified to his review of the IRE and regarding his own IRE of the claimant. The claimant’s medical expert was not licensed to practice medicine in Pennsylvania nor was he certified by any American medical or osteopathic specialist board. 


The WCJ accepted the testimony of the claimant’s medical expert and rejected the IRE physician’s testimony as incompetent because he failed to provide testimony that he adequately considered all relevant guidelines and tables in the AMA Guides. The Modification Petition was denied. The Board Affirmed.


On Appeal, the Commonwealth Court found that the WCJ had based his competency decision on his own understanding of the means by which the IRE physician applied the AMA Guides. The Court observed that any such failing of an expert would affect credibility, not competency. Accordingly, the WCJ erred by finding the IRE physician’s testimony not competent.  


The Court next addressed the issue of whether the testimony of the claimant’s medical expert was competent and valid for the purpose of responding to the IRE. The Court held that in order to rebut competent IRE evidence, the claimant must present evidence of similar character - i.e, evidence of rating evaluations performed only by those qualified to engage in rating evaluations - osteopathic or medical doctors. Here, the testimony of a non-medical expert  - a psychologist - was not competent for the purpose of rebutting the competent IRE evidence. 


In reviewing the record, the Court found that the claimant had not posed any questions on cross-examination, which would support the WCJ’s finding that the IRE physician did not apply the Guides properly. The matter was remanded for the WCJ to issue new findings regarding the IRE physician’s credibility and competency, supported by the actual and competent evidentiary record. The WCJ was also instructed that he should not consider the testimony of the claimant’s medical expert.

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