Evidence from a claimant contesting an employer’s impairment rating evaluation (IRE) must be competent evidence of a similar character.

Following the claimant’s work injury, the employer filed a modification petition based on the results of an IRE. In opposition to the testimony given by the employer’s IRE physician, the claimant offered into evidence the deposition testimony of a psychologist who said that he was familiar with the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides) but was not certified to perform IREs, was not licensed to practice medicine, and was not certified by any American medical or osteopathic board. Over the employer’s objection, the testimony of the psychologist was received into evidence. The Workers’ Compensation Judge dismissed the employer’s modification petition, concluding that the testimony of the IRE physician was incompetent based on his own observation that the IRE physician did not demonstrate that he considered all relevant guidelines and tables in the AMA Guides. The judge also concluded, however, that the claimant failed to establish that his impairment rating was between 53% and 58%, as per the testimony of his psychologist. The Board affirmed the judge’s dismissal of the employer’s modification petition.

On appeal to the Commonwealth Court, the employer argued that the judge erred in concluding that the IRE physician did not provide competent testimony. The employer further argued that if the IRE physician’s opinion was competent, then the judge erred in relying upon the opinion of the claimant’s psychologist to refute the IRE physician’s opinion since the psychologist’s opinion was not competent. The court found that the judge erred, as a matter of law, in finding that the IRE physician’s opinion was not competent since the judge based this decision on his own understanding of the means in which the IRE physician applied the AMA Guides to the facts and not on the IRE physician’s alleged lack of understanding of the facts of the claimant’s condition. The court further held that the judge and the Board erred in concluding that the testimony of a non-medical expert regarding the rating of the claimant’s condition was competent for the purpose of rebutting the IRE of evidence submitted by the employer.

The court concluded that where the claimant seeks to rebut competent IRE evidence, the General Assembly intended that evidence of a similar character be presented—i.e., evidence of rating evaluations performed by those persons the General Assembly has deemed qualified to engage in rating evaluations. Therefore, the court remanded the case to the Workers’ Compensation Judge with instructions to not consider the testimony of the claimant’s psychologist and to issue new findings regarding the IRE physician’s credibility and competency.

Case Law Alerts, 1st Quarter, January 2015