Verizon Pennsylvania Inc. v. WCAB (Guyders); 2477 C.D. 2009; filed July 19, 2010; by Judge Leavitt

A workers' compensation judge's dismissal of a modification petition on the basis that an IME more than six months old rendered the job referrals invalid is arbitrary and not supported by substantial evidence.

The claimant in this case was injured in 1994. The employer filed a petition to suspend/Modify Benefits, alleging that work was available to the claimant and the claimant failed to make a good faith effort to pursue the jobs that were referred. The employer presented evidence that following an IME, 73 job referrals were made to the claimant from November 2003 to February 2006. The employer presented additional evidence indicating that the claimant, by her appearance, was sabotaging job prospects. The claimant presented testimony from a vocational expert who opined that an IME becomes outdated within six months to a year due to changes in a claimant's physical condition. According to the claimant, the employer's stale IME rendered the jobs referred to her as invalid. The workers' compensation judge dismissed the employer's petition, and the Appeal Board affirmed. However, the Commonwealth Court reversed and remanded. According to the court, the statement given by the claimant's vocational expert about IMEs was not from a physician and, therefore, the counselor was not competent to render an opinion as to the IME performed on the claimant. The court noted that the IME physician testified that the claimant had reached maximum medical improvement relative to her work injury. The court also concluded that the workers' compensation judge's decision to place a six-month expiration date on the IME results was arbitrary. The court held that substantial evidence did not support the workers' compensation judge's determination that the IME report expired after six months. The court remanded the case to the workers' compensation judge for the performance of a Kachinski analysis.

Case Law Alert, 4th Qtr 2010