Who Judges an IRE

By: Douglas A. Williams

In IA Construction Corp. v. WCAB (Rhodes), a very important case decided by the Pennsylvania Supreme Court on May 25, 2016, the Court determined that a Workers’ Compensation Judge has the right to reject the opinion of a physician performing an Impairment Rating (IRE) exam – even when the injured worker offers no evidence to rebut the IRE physician’s opinion.

In Rhodes, the injured worker had sustained a traumatic brain injury. Subsequently, the employer required the injured worker to undergo an IRE, which was performed by Dr. Lateef, who is board certified in physical rehabilitation and pain medicine. In the view of the Workers’ Compensation Judge, Dr. Lateef performed only a cursory evaluation of the condition that resulted from the injured workers’ traumatic brain injury. For this reason, she rejected his testimony as “not credible.” Had the Employer persuaded the Judge to accept Dr. Lateef’s testimony, the period during which the injured worker could receive benefits would have been limited.

On appeal, the Pennsylvania Commonwealth Court reversed the Workers’ Compensation Judge’s decision and found, in essence, that the Judge erred in rejecting testimony that was un-contradicted. The Pennsylvania Supreme Court reversed the Commonwealth Court and reinstated the Workers’ Compensation Judge’s opinion. The Supreme Court noted that the Commonwealth Court had conflated the concept of whether or not a physician is “qualified” to offer an opinion with whether or not the physician’s opinion is “persuasive.” The Supreme Court reiterated that the Workers’ Compensation Judge is the ultimate arbitrator of whether or not a witness’s testimony is persuasive.

The injured worker in the Rhodes case was represented by attorney Thomas Baumann of Abes Baumann.



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