News

Workers Compensation News Winter 2015

March 5, 2015

Recent Workers Compensation Cases in Western Pennsylvania

By John W. Zatkos, Jr. Esq.

Non-Medical Doctors cannot give expert testimony for Impairment Rating Evaluations (IREs)

In Commonwealth of PA/Department of Public Welfare v WCAB (Slessler), the Commonwealth Court distinguishes when a non-Board certified doctor may render evaluations. The claimant, Dallas Slessler, was severely injured when trying to restrain a resident, suffering broken back, ribs, and an injured disc in his neck. Three years later, his claim was modified to include Post Traumatic Stress Disorder (PTSD) and chronic pain.

The employer requested to modify the benefits from total to partial and presented the testimony of Michael Wolk, M.D. who presented an Impairment Rating Evaluation (IRE) of 8%, which supported reducing benefits to partial. The injured worker presented the testimony of David J, Longo, Ph.D., with whom he had been treating. Dr. Longo testified that he is not certified by any American medical or osteopathic medical board. The employer objected to Dr. Longo’s testimony on the grounds that he could not be an expert because he did not meet the Department of Labor & Industry’s qualification requirements for IREs. However, the Workers Compensation Judge (WCJ) noted that no certified IRE physicians live in the same county or the two neighboring counties, presenting a hardship for the injured worker and overruled the employer’s objections. The Workers’ Compensation Appeals Board (WCAB) also agreed with the denying modification petition. The Employer appealed to the Commonwealth.

The Commonwealth determined that, unlike a claim petition where a psychologist can render an expert opinion, only medical doctors can render an opinion in an IRE. Therefore, they vacated the WCAB’s order affirming the WCJ’s denial of the modification and remanded the matter to the WCAB telling them to remand the matter to the WJC for a new decision in accordance with their opinion.

What does this mean? A non-medical doctor, such as a psychologist, may give expert testimony for claim petitions but only Board Certified medical doctors may give expert testimony for Impairment Rating Evaluations.

Dog bite injuries during an approved smoke break are eligible for benefits

In 1912 Hoover House Restaurant v WCAB (Soverns), the Commonwealth Court upheld the WCAB’s affirmation of the WCJ’s decision to award benefits to a worker who was bitten by a dog on his cigarette break. Sean Soverns was a line cook who took a smoke break in an approved area. While there, he petted a coworker’s dog, which bit his face, causing facial lacerations and visible scarring. The employer contended that the worker’s decision to pet the dog and the resulting injury demonstrated more than a temporary departure from work.

However, the WCJ found that the injured worker did not make a pronounced departure from work but was on a break expressly permitted by the employer. He also found that the injured worker’s petting of the dog was not “premeditated, deliberate, extreme, and inherently of a high-risk nature.” On appeal, the WCAB agreed with the WCJ. The employer then appealed to the Commonwealth, who also upheld the findings of the WCJ.

What does this mean? The injured worker’s decision to pet a dog during an employer approved break, in an employer approved area, does not represent a departure from work and is eligible for benefits.