                               [J-40-2016]
                 IN THE SUPREME COURT OF PENNSYLVANIA
                            WESTERN DISTRICT

       SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

IA CONSTRUCTION CORPORATION                :   No. 18 WAP 2015
AND LIBERTY MUTUAL INSURANCE               :
CO.                                        :   Appeal from the Order of the
                                           :   Commonwealth Court entered February
            v.                             :   19, 2015 at No. 2151 CD 2013,
                                           :   reversing the Order of the Workers’
                                           :   Compensation Appeal Board entered
WORKERS’ COMPENSATION APPEAL               :   November 5, 2013 at No. A11-1631.
BOARD (RHODES)                             :
                                           :
APPEAL OF: JEFFREY RHODES                  :
                                           :   ARGUED: April 5, 2016




                                     OPINION


CHIEF JUSTICE SAYLOR                           DECIDED: MAY 25, 2016


      This appeal centers on the validity of a workers’ compensation judge’s decision

to reject opinion testimony from an independent medical witness presented by an

employer and insurer, in the absence of any contrary evidence adduced by the

claimant.


                                   Background

      The matter arises in the context of Section 306(a.2) of the Workers’

Compensation Act,1 77 P.S. §511.2, which was promulgated in 1996 as a component of


1
  Act of June 2, 1915, P.L. 736 (as amended 77 P.S. §§1-1041.1, 2501-2626) (the
“WCA” or the “Act”).
the General Assembly’s efforts to address the rising costs of the workers’ compensation

liability scheme. See Gardner v. WCAB (Genesis Health Ventures), 585 Pa. 366, 368

n.1, 888 A.2d 758, 759 n.1 (2005). Per the statute, after a workers’ compensation

claimant has received total disability benefits for a period of 104 weeks, the insurer is to

request an impairment rating evaluation, or an IRE, which is a medical examination

directed toward assessing the degree of a claimant’s impairment attributable to a

compensable injury. See 77 P.S. §511.2(1). “Impairment,” in this context, connotes an

anatomic or functional abnormality or loss resulting from a compensable injury that is

reasonably presumed to be permanent, id. §511.2(8)(i), as distinguished from

“disability,” which more broadly concerns the loss of earnings capacity, see Dillon v.

WCAB (Greenwich Collieries), 536 Pa. 490, 501, 640 A.2d 386, 392 (1994) (explaining

that the concept of “disability” under the Act encompasses both capacity to work and job

availability). See generally Diehl v. WCAB (I.A. Constr.), 607 Pa. 254, 277-79, 5 A.3d

230, 244-45 (2010) (elaborating upon the distinction between impairment and disability).

       As a consequence of an effective impairment rating of less than 50 percent, the

designation of the claimant’s disability is converted from total to partial, thereby limiting

the insurer’s otherwise continuing liability to benefits payable throughout a maximum,

closed-end period of 500 weeks. See 77 P.S. §511.2(7). Accordingly, one main purport

of the statute is that a claimant whose condition may continue to meet the conventional

definition of total “disability” -- a concept centered on overall earnings capacity

encompassing both physical capacity and job availability -- may nevertheless be limited

in the time frame during which he or she may receive workers’ compensation benefits.

See Diehl, 607 Pa. at 280, 5 A.3d at 246 (explaining that an employer/insurer is not

required to produce evidence of earning power or job availability to support conversion

of a disability designation from total to partial under Section 306(a.2), based on an


                                      [J-40-2016] - 2
effective impairment rating of less than 50 percent). See generally DAVID. B. TORREY &

ANDREW E. GREENBERG, 6 W EST’S PA. PRACTICE SERIES, W ORKERS’ COMPENSATION: LAW

AND   PRACTICE, §6:41 (3rd ed. 2008) (“[T]he 500 weeks provides a horizon with regard to

the claimant’s entitlement and the employer’s liability.”).

        Of additional significance to the present matter, a duly rendered impairment

rating is automatically effective if the employer/insurer requested the examination within

60 days after the expiration of the 104-week period prescribed by the statute. See

Gardner, 585 Pa. at 373, 888 A.2d at 762 (construing Section 306(a.2)(1), 77 P.S.

§511.2(1)). However, where, as here, the employer/insurer submits a later request for

an IRE, the effect of the rating assessment is not automatic. Rather, such opinion must

be vetted through the traditional administrative adjudicatory process, upon the

employer/insurer’s submission of a petition for modification of benefits. See id. at 382,

888 A.2d at 768.

        In 2005, the appellant, Jeffrey Rhodes (“Claimant”) suffered injuries in a vehicular

accident, while in the course of his employment with the employer-appellee, IA

Construction Corporation (hereinafter referred to with the company’s insurer, Liberty

Mutual Insurance Co., collectively, as “Employer”). Claimant filed a claim petition under

the Act. See 77 P.S. §711.

        In 2007, a workers’ compensation judge granted this petition and awarded total

disability benefits, see id. §511(1), finding that Claimant had sustained work-related

injuries, including traumatic brain injury with organic affective changes, persistent

cognitive problems, memory impairment, posttraumatic headaches, posttraumatic

vertigo or impaired balance, and musculoskeletal or myofascial neck and back injuries.

        Several years later, Employer filed a specialized notice under governing

administrative regulations designed to initiate the impairment rating process. See 34


                                       [J-40-2016] - 3
Pa. Code §123.102(e). The Department of Labor and Industry’s Bureau of Workers’

Compensation (the “Bureau”), in turn, designated M. Bud Lateef, M.D., a physician

maintaining board certifications in physical, rehabilitation, and pain medicine, to conduct

an IRE. Subsequently, based on the results of the ensuing examination -- and given

that the IRE had been requested outside the period associated with a rating accorded

automatic effect -- Employer filed a petition seeking to modify the workers’

compensation benefits payable to Claimant. See 77 P.S. §772.

      To develop a record, Employer proceeded with a deposition of Dr. Lateef, who

assigned an impairment rating of 34 percent to Claimant. The physician testified that he

had examined Claimant and reviewed various medical records. According to Dr. Lateef,

he confirmed three primary present diagnoses, which he described as traumatic brain

injury, a cervical condition in the nature of a herniated disc, and a spinal condition

resulting in gait dysfunction.    Dr. Lateef explained that he assigned a discrete

impairment rating to each of these conditions, which, together, comprised the 34

percent “whole person impairment rating” under the Sixth Edition of the American

Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA

Guides”).2 Deposition of M. Bud Lateef dated Feb. 10, 2011, in Rhodes v. IA Constr.

Corp., No. 390-391992 (DLI, Bur. of Workers’ Comp.), at 14. The physician further

opined that Claimant had reached a maximum level of medical improvement.




2
  In Protz v. WCAB (Derry Area Sch. Dist.), 124 A.3d 406 (Pa. Cmwlth. 2015) (en banc),
the Commonwealth Court held that Section 306(a.2)’s prescription for impairment
ratings to proceed under the “most recent edition” of the AMA Guides effected an
unconstitutional delegation of legislative authority. See id. at 416. While this issue has
been otherwise accepted for review by this Court, see Protz v. WCAB (Derry Area Sch.
Dist.), ___ Pa. ___, 133 A.3d 733 (2016) (per curiam), it was not raised in the present
case and will not be considered in this appeal.


                                     [J-40-2016] - 4
       In hearings before a workers’ compensation judge (the “WCJ”), Employer

presented Dr. Lateef’s deposition testimony and the physician’s underlying report.3

Claimant did not testify on his own behalf, nor did he present medical testimony or other

evidence.

       The WCJ denied Employer’s modification petition, rejecting Dr. Lateef’s

impairment rating opinion. Initially, the WCJ expressed a concern that Dr. Lateef had

inappropriately “lumped” an array of discrete injuries into three categories. Decision of

WCJ Cheryl A. Ignasiak in Rhodes v. IA Constr. Corp., Claim No. 2847534, slip op. at 3

(DLI, Workers’ Comp. Office of Adjudication Sep. 26, 2011). In this regard, the WCJ

referred back to the series of injuries accepted by the workers’ compensation judge in

the initial claims determination and criticized Dr. Lateef for failing to adequately account

for all of these.

       The WCJ then focused her concern upon the significant portion of Claimant’s

impairment rating attributable to cognitive issues.      In her estimation, Dr. Lateef’s

assessment of cognition was an unduly limited one, since he performed only a cursory

examination and otherwise relied upon only a limited range of medical records. In the

circumstances -- and particularly since Dr. Lateef specialized in physical medicine and

pain management, not neurology -- the WCJ indicated that she was unpersuaded by his

opinion.

       On Employer’s appeal, the WCAB affirmed in a divided opinion. The majority

relied substantially on the principle that a WCJ, as the factfinder, appropriately


3
  Claimant initially lodged a hearsay objection relative to the report, which, at the time,
the WCJ sustained. See N.T., Sep. 16, 2010, at 6. Later, however, such objection was
apparently withdrawn, see Deposition of M. Bud Lateef dated Feb. 10, 2011, in Rhodes,
No. 390-391992, at 14, and the WCJ admitted the report into evidence. See N.T., Apr.
18, 2011, at 5.


                                      [J-40-2016] - 5
determines the weight to be accorded to the evidence presented. See Rhodes v. IA

Constr. Co., No. A11-1631, slip op., at 4 (WCAB Nov. 5, 2013) (“The Judge chose to

place great weight on the fact that Dr. Lateef was not more qualified in dealing with

traumatic brain injuries and we won’t disturb her determination.”).        The dissenting

members, on the other hand, observed that, procedurally, the IRE had been conducted

in accordance with the requirements of the Act.            Furthermore, they attributed

significance to the fact that employers do not participate in the process of selecting IRE

physicians, and that such function is administered by the Bureau.            See 77 P.S.

§511.2(1) (specifying that IRE physicians are to be “chosen by agreement of the parties,

or as designated by the department”). Although the dissenters acknowledged that “Dr.

Lateef’s report could have been greatly improved upon,” Rhodes, No. A11-1631, slip

op., at 8 (Frioni, Chairman, dissenting), they nevertheless were sufficiently convinced by

the report and associated opinion testimony.

      On further appeal, the Commonwealth Court reversed in a published decision.

See IA Constr. Corp. v. WCAB (Rhodes), 110 A.3d 1096 (Pa. Cmwlth. 2015). From the

outset of its analysis, the intermediate court stressed that Dr. Lateef met the WCA’s

stated qualifications for IRE physicians and that he followed the statutorily-prescribed

methodology for conducting the examination.         See id. at 1101-02 (citing 77 P.S.

§511.2(1)). The court took the position, therefore, that the WCJ lacked the authority to

reject the physician’s testimony on the basis that cognitive impairment was outside the

area of his specialization. See id. at 1102 (opining that rejection of an impairment rating

based on a mismatch between the particular specialization of an examining physician

and a claimant’s condition “would impose standards in excess of those set forth in

Section 306(a.2)(1) of the Act”).    Although the court acknowledged that applicable

regulations permit evaluating physicians to refer claimants to specialists, see id. at 1100


                                     [J-40-2016] - 6
(referencing 34 Pa. Code §123.105(b)), it dismissed the relevance of those regulations

upon the observation that such referrals are within the examiner’s discretion.

      In terms of the remaining reasons provided by the WCJ in support of her finding

that Dr. Lateef’s testimony was unpersuasive, the Commonwealth Court posited, based

on the requirement that factual findings must be supported by substantial evidence, that

“a WCJ’s opinion as to the insufficiency of an IRE cannot stand without some record

support.” Id. at 1102. Noting Claimant’s failure to adduce evidence on his own behalf,

the intermediate court found the record to be lacking in these material regards. Along

these lines, the court explained that the WCJ did not reference any provisions of the

AMA Guides or other evidence in support of her conclusions that Dr. Lateef

mischaracterized or improperly grouped Claimant’s injuries or that he erroneously

calculated the impairment rating. See id.

      We allowed this appeal to address the issue, as framed by Claimant, of

“[w]hether the Commonwealth Court overstepped its appellate function in making

credibility judgments which is the sole function of the Workers’ Compensation Judge.”

IA Constr. Corp. v. WCAB (Rhodes), ___ Pa. ___, 121 A.3d 981 (2015) (per curiam).

Generally, agency-level decisions -- such as those of the WCJ and WCAB here -- are to

be affirmed on appeal so long as the essential findings are supported by substantial

evidence and there has been no constitutional violation, procedural irregularity, or error

of law. See 2 Pa.C.S. §704; Leon E. Wintermyer, Inc. v. WCAB (Marlowe), 571 Pa.

189, 199, 812 A.2d 478, 485 (2002).

      Presently, Claimant contends that the Commonwealth Court usurped the function

of the WCJ, as fact-finder, by assigning greater weight to Dr. Lateef’s opinion testimony

than was attributed to such evidence at the agency level. According to Claimant, the

WCJ supplied appropriate supporting justifications for her judgments, based upon her


                                      [J-40-2016] - 7
determinations that Dr. Lateef “was not the proper specialist to perform the IRE and he

did not properly assess all of the conditions that were disabling Claimant.” Brief for

Claimant at 21. Claimant maintains that, because Employer had not requested an IRE

within the 60-day time frame specified in Section 306(a.2)(1), Dr. Lateef’s testimony had

no special effect, but rather, merely served as evidence in the proceedings on

Employer’s modification petition.     Similarly, Claimant’s amicus, the Pennsylvania

Association for Justice, particularly criticizes the Commonwealth Court for treating Dr.

Lateef’s status as a qualified impairment rating examiner as foreclosing the rejection of

his testimony by the fact-finder on its substantive merits. See Brief for Amicus Pa.

Ass’n for Justice at 10 (positing that the qualifications for an IRE physician as set forth

in Section 306(a.2)(1) “go to competency” but “do not . . . require that the ‘qualified’

witnesses’ opinions be accepted as true or accorded more legal weight or credibility

than any other type of evidence” (citing Diehl, 607 Pa. at 279, 5 A.3d at 245)).

       Employer, on the other hand, stresses that Dr. Lateef was qualified to render an

impairment rating evaluation per the standards set forth in Section 306(a.2) and in

agency regulations, and that his examination was performed in accordance with the

prescribed medical guides. As such, and consistent with the Commonwealth Court’s

determination, Employer maintains that the WCJ lacked the authority to reject his

opinion testimony in the absence of any contrary evidence adduced by Claimant. See,

e.g., Brief for Employer at 19 (“[I]t was incumbent on the claimant to prove that the

failure to consult with another specialist somehow resulted in a lowered impairment

rating, and not just a lowered rating, but that a revised rating would have met the 50%

threshold if another specialist had been consulted.”). It is also Employer’s position that

any challenge to Dr. Lateef’s qualifications was waived, as Claimant never objected to

the Bureau’s selection of the physician.


                                     [J-40-2016] - 8
       Employer acknowledges that “[u]sually, the Workers’ Compensation Judge has

the power to accept or reject the testimony of any witness, as a valid exercise of her

fact-finding function.” Brief for Employer at 12. Employer nonetheless asserts that this

standard is not presently applicable, because:             1) Claimant produced no contrary

evidence of any kind; and 2) independent ratings examiners are chosen by the Bureau

of Workers’ Compensation, not employers. In the latter regard, Employer recognizes

that the Bureau’s regulations allow for optional specialist referrals, but it notes that such

referrals are within the discretion of the IRE physician.          Employer also repeatedly

asserts that Dr. Lateef accorded Claimant “the maximum rating permitted under the

AMA guidelines.” Brief for Employer at 7-8; see also id. at 16, 19. Based upon this

representation, Employer deems it irrelevant whether or not Dr. Lateef was a specialist

in assessing traumatic brain injuries.

       In terms of the WCJ’s concern with “lumping,” Employer counters that there was

no evidence presented that the categorizations selected by Dr. Lateef were not entirely

consistent with the AMA Guides. To the degree that the WCJ expressed a concern that

the physician had not rated all of the conditions accepted as injuries by the initial

workers’ compensation judge in the claim adjudication, Employer finds this to be

inconsistent with the nature of impairment ratings, which focus on the examinee’s

current condition. See id. at 19-20 (“The IRE produces a snapshot of the claimant’s

condition at the time of the IRE, not a survey of the claimant’s work-related injuries from

the date of the injury to the date of the exam.” (citing Westmoreland Reg’l Hosp. v.

WCAB (Pickford), 29 A.3d 120, 128 (Pa. Cmwlth. 2011))).

       Broadly speaking, Employer charges that upholding the WCJ’s decision would be

tantamount to overturning the governing substantial-evidence review standard and

“would allow a Workers’ [Compensation] Judge to use her own medical opinions, and


                                         [J-40-2016] - 9
untested knowledge outside of the record, in order to make a decision, and then hide

behind a curtain that claims that all decisions are ultimately credibility decisions, and

never should be disturbed.” Brief for Employer at 21.


                                       Discussion

A. General Observations Concerning Section 306(a.2)

         Before proceeding to the merits, we pause to reflect on Section 306(a.2) as a

whole.    As previously observed, the enactment imposed a cost-containment regime

focused upon “impairment,” as opposed to “disability,” the latter of which traditionally

was the core of the workers’ compensation scheme.            See generally TORREY &

GREENBERG, 6 W EST’S PA. PRACTICE, §6:1. As with other instances of experimental

legislation, conceptual and other difficulties with the impairment rating scheme have

become evident over time. For example, the statute facially contemplates the initiation

of a mandatory, determinative impairment rating evaluation process within a specific,

narrow time frame. See 77 P.S. §511.2(1). However, the AMA Guides preclude such a

rating unless and until the examinee has reached maximum medical improvement. See

Combine v. WCAB (Nat’l Fuel Gas Distribution Corp.), 954 A.2d 776, 779-80 & n.3 (Pa.

Cmwlth. 2008).

         Throughout the balance of the statute, the drafters appear to have assumed that

the initial rating will always have been accomplished as directed, even though this will

not be possible in all cases. For example, on its face, Section 306(a.2) authorizes

subsequent impairment rating examinations to assess whether “the employe’s condition

improves to an impairment rating that is less than fifty per centum,” 77 P.S. §511.2(5)

(emphasis added), thus appearing to contemplate a baseline established by an initial




                                     [J-40-2016] - 10
rating. Similarly, Section 306(a.2)(6) references the “status of the impairment,” which

may be determined through an ongoing series of medical evaluations. Id. §511.2(6).4

      Ultimately, the statute pronounces that “[i]n no event shall the total number of

weeks of total disability exceed one hundred four weeks for any employe who does not

meet a threshold impairment rating that is equal to or greater than fifty per centum

impairment,” per the applicable guides. Id. §511.2(7). Again, this language seems to

give no account for circumstances in which an impairment rating is impossible or no

examination has occurred for some other reason. Moreover, despite the severe and

explicit repercussions of this last provision upon claimants’ entitlement to continuing

benefits, even in instances in which suitable employment is unavailable, no mechanism

is provided in the statute for claimants to seek and obtain an IRE on his or her own

account.

      In light of the incongruities arising from the face of the statute, the judicial

decisions interpreting it cannot be fully reconciled with the enactment as a whole. For

example, while Section 306(a.2)(6) explicitly affords insurers the right to compel

“independent medical examination[s] in accordance with the provisions of Section 314

to determine the status of impairment,” id. §511.2(6) -- and Section 314 plainly provides

that examiners “shall be selected and paid for by the employer,” id. §651 -- the courts

have nevertheless determined that impairment rating examiners must be selected by

the Bureau. See, e.g., Lewis v. WCAB (Wal-Mart Stores, Inc.), 856 A.2d 313, 319 (Pa.

Cmwlth. 2004); accord Diehl, 607 Pa. at 278, 5 A.3d at 245 (indicating, via citation to

Section 306(a.2)(1), that the qualifications of a physician authorized to perform an IRE

include designation by the Bureau or selection by the parties).        This disharmony

4
  The statute is remarkable in this provision for ongoing, biannual review for
improvement of conditions, that, medically, must be deemed to be permanent before an
impairment rating may be assigned in the first instance.


                                    [J-40-2016] - 11
presumably derives from the fact that, by reason of impossibility or otherwise, many

initial IREs simply do not occur immediately after the 104-week period as Section

306(a.2)(1) directs. Thus, the provision for reviewing “the status of impairment” has

been employed to serve as a catch-all for both initial and ongoing reviews, 77 P.S.

§511.2(6).

       These many difficulties suggest, very strongly, that this is an area of law that is

ripe for legislative review, so that the statute can be clarified and improved; fairness

may be enhanced, as it must, in the midst of the many compromises and trade-offs

inherent in a workers’ compensation liability scheme; and the manifest intentions of the

policy-making branch can be put into effect, subject to the limits of the Constitution.

       Of necessity, our present decision is rendered in the context of the existing

statute and the prevailing law as it has developed to this point.


B. Credibility, Persuasiveness, Weight, and Deference

       As previously noted, the question which Claimant has presented on appeal is

couched in terms of the “credibility” of Dr. Lateef’s opinion. IA Constr. Corp., ___ Pa. at

___, 121 A.3d at 981.        However, the WCJ’s opinion is framed in terms of the

persuasiveness of the opinion and the weight that was accorded to it.

       In the arena of administrative adjudication and otherwise, the term “credibility”

has different connotations depending upon the context. The word is sometimes used, in

its broadest sense, as a synonym for persuasiveness. In other instances, however, it is

employed to focus on essential truth telling, encompassing the fact-finder’s assessment

of witness demeanor.      See Kopack v. NLRB, 668 F.2d 946, 953 (7th Cir. 1982)

(elaborating upon this distinction). Here, particularly because Dr. Lateef’s testimony

was presented to the WCJ in the form of a written deposition, we treat Claimant’s use of

the term “credibility” in the broader sense.

                                      [J-40-2016] - 12
         This consideration points up another distinction applied in some courts, since, in

some jurisdictions, demeanor-based judgments at an agency fact-finding level are

accorded special deference on judicial review; whereas, fact-based conclusions derived

from depositions and other written materials are given lesser or no deference. See,

e.g., Davidson v. Horton Indus., Inc., 641 N.W.2d 138, 142 (S.D. 2002) (citation

omitted). Under the prevailing law as it has developed in the Pennsylvania workers’

compensation setting, however, a workers’ compensation judge is generally deemed to

be the “ultimate finder of fact and the exclusive arbiter of credibility and evidentiary

weight.” Daniels v. WCAB (Tristate Transp.), 574 Pa. 61, 76, 828 A.2d 1043, 1052

(2003) (quoting Thompson v. WCAB (USF&G Co.), 566 Pa. 420, 426-27, 781 A.2d

1146, 1150 (2001)) (emphasis added). In other words, Pennsylvania appellate tribunals

accord broader deference to fact-based determinations of workers’ compensation

judges than is afforded in some other jurisdictions.

         Indeed, some jurisdictions apply an uncontradicted medical evidence rule in

workers’ compensation cases, per which such evidence is generally binding on the fact-

finder. See, e.g., Nunez v. Smith’s Mgmt. Corp., 769 P.2d 99, 101 (N.M. Ct. App.

1988).    There is presently no doctrinal equivalent within the Pennsylvania workers’

compensation scheme, however, and neither the Commonwealth Court nor Employer

has presented a developed explanation as to why we should depart from the existing

jurisprudence and supplant the “traditional administrative process” into which IRE-based

modification petitions have been channeled, per the previous line of decisions. Diehl,

607 Pa. at 279, 5 A.3d at 245; Gardner, 585 Pa. at 380, 888 A.2d at 766.

         Indeed, in Diehl this Court specifically determined that an IRE under Section

306(a.2)(6) “is entitled to no more or less weight than the results of any other

examination.” Diehl, 607 Pa. at 279, 5 A.3d at 245. Accordingly, to the degree that the


                                      [J-40-2016] - 13
Commonwealth Court has fashioned, essentially, an uncontradicted medical evidence

rule, we disapprove its decision.5

       In response to Employer’s position that such disapproval is tantamount to an

evisceration of substantial-evidence review, we disagree. As this Court has explained

previously, the substantial-evidence facet of the appellate review of administrative

agency adjudications simply may not apply to scenarios in which a prevailing party

presented no evidence. See Leon E. Wintermyer, Inc., 571 Pa. at 200-01, 812 A.2d at

486. Rather, such matters often turn upon the weight attributed by the fact-finder to the

evidence presented by the party bearing the burden of proof. See id. It is for this

reason that the Commonwealth Court had fashioned a particularized “capricious

disregard standard of review” to serve as a check against untenable rejections of

uncontradicted evidence. See id. (discussing Russell v. WCAB (Volkswagen of Am.),

121 Pa. Cmwlth. 436, 550 A.2d 1364 (1988)).6

       Here, Employer bore the burden to establish grounds for modification. See Vista

Int'l Hotel v. WCAB (Daniels), 560 Pa. 12, 28-29 n.11, 742 A.2d 649, 658 n.11 (1999)

(discussing the traditional allocation of the burden upon employers to demonstrate

grounds for modification after the claimant has demonstrated a compensable work-


5
  In this respect, we agree with Claimant’s amicus that the Commonwealth Court
incorrectly intermixed expert witness qualifications with the weight to be accorded to
such a witness’s testimony by a workers’ compensation judge. This distinction is also
relevant to Employer’s waiver argument – although Claimant may have waived any
objection to Dr. Lateef’s qualifications as an examiner, he did not surrender his ability to
maintain that the physician’s opinion was substantively unpersuasive.

6
  Ultimately, for reasons that are beyond the scope of this opinion, this Court
determined that such review could extend to circumstances in which the evidence was
contradicted, as a component of the appellate courts’ responsibility to review whether
an agency-level decision is in accordance with law. See Leon E. Wintermyer, Inc., 571
Pa. at 203-04, 812 A.2d at 487-88.


                                     [J-40-2016] - 14
related injury in the first instance). Furthermore, the WCJ was free to accept or reject

Employer’s evidence. In our view, the fairness considerations arising out of the fact

that, under prevailing judicial interpretations of Section 306(a.2), the Bureau (and not

employers) selects IRE physicians, are insufficient to justify a judicial policymaking

decision to implement a specialized approach to IREs conducted under Section

306(a.2)(6). Accord Diehl, 607 Pa. at 279, 5 A.3d at 245.

       There is one additional relevant check extending to fact-finding determinations in

the workers’ compensation arena, in that workers’ compensation judges are required to

issue developed, reasoned decisions. See 77 P.S. §834; Daniels, 574 Pa. at 67, 828

A.2d at 1046. It is in this particular respect that this Court has drawn a distinction

between oral testimony and the submission of written materials such as depositions.

See id. at 67-68, 78-79, 828 A.2d at 1046, 1053. Nevertheless, we have recognized

that appellate courts must “be sensitive in not imposing an unwieldy standard of

articulation upon the adjudication process,” and thus, in the latter instances, they are to

look simply for “the actual objective basis for the credibility determination.” Id. at 75, 78,

828 A.2d at 1052, 1053.


C. The Specialization Concern

       At this juncture, we express our agreement with Employer’s position that two of

the three of the WCJ’s explanations supporting her rejection of Dr. Lateef’s impairment

rating opinion are unconvincing as stated. As Employer observes, to the degree that

the WCJ’s decision harkened back to the full range of Claimant’s initial work-related

injuries, it was facially in tension with the nature of an IRE, which assesses the

examinee’s present condition. In this regard, medical improvements occurring between

the time of the initial injury and the examination may resolve impairments; indeed, as



                                      [J-40-2016] - 15
noted, the doctrinal underpinnings of the Medical Guides are rooted to the occurrence of

maximum improvement and “permanency,” see AMA Guides §§2.5e, 2.5f.

      We also agree that the WCJ’s concern with “lumping” medical conditions is too

underdeveloped to be accorded controlling significance. The AMA Guides themselves

establish broad categories of impairments tied to functional sub-units of a whole person,

such as the nervous system. See AMA Guides, Ch. 13. Accordingly, in furtherance of

a reasoned decision, the WCJ should have explained how Dr. Lateef’s categorizations

were inconsistent with those he was required to implement, per such guidelines.

      Our decision thus turns upon the degree to which the WCJ’s concern with Dr.

Lateef’s out-of-specialty opinion relative to traumatic brain injury serves as a sufficient

basis for a reasoned rejection of his testimony. In this regard, although Employer treats

the WCJ’s decision as entirely superficial, Employer itself presents a shallow argument

in its repeated assertion that Dr. Lateef accorded the maximum impairment rating

available to Claimant’s brain injury. See Brief for Employer at 7-8, 16, 19. In point of

fact, the physician assigned the maximum rating available within the class of impairment

that he selected (“Moderate abnormalities”), but higher percentages attend more severe

classifications. See AMA Guides, Table 13-8. For this reason, most assuredly, 20

percent impairment is not necessarily “the maximum rating permitted under the AMA

guidelines.” Brief for Employer at 7-8.

      Superficiality was also the basis for the WCJ’s concern with Dr. Lateef’s

examination relative to Claimant’s brain injury.     The examination appears to have

centered on Claimant’s ability to say his own name, describe his present location,

supply the correct date, spell a word backwards, and identify the President of the United

States. See Deposition of M. Bud Lateef dated Feb. 10, 2011, in Rhodes, No. 390-

391992, at 10. According to the AMA Guides, however, an examination for neurological


                                     [J-40-2016] - 16
impairment “should be based on a detailed mental status examination, often in concert

with neuropsychological assessment and testing.” AMA Guides §13.3d. Like the WCJ,

we find little in Dr. Lateef’s deposition or report to suggest that such a detailed mental

status examination was undertaken. Cf. Rhodes, No. A11-1631, slip op., at 7 (Frioni,

Chairman, dissenting) (recognizing that “Dr. Lateef’s report could have been greatly

improved upon”).

       It is also significant that, like Employer’s presentation to this Court, Dr. Lateef’s

testimony does not elaborate on the differences in impairment attaching to the different

classes of neurological impairment (which are normal and mild, moderate, severe, and

most profound abnormalities). An apparent question, not answered by the physician, is

what sort of additional impact on activities of daily living would be required to move from

the “moderate abnormalities” classification attributed to Claimant, justifying the up to 20

percent impairment rating, to the “severe” or “most profound” abnormalities

classifications, warranting up to 35 and 50 percent impairment ratings, respectively.

See AMA Guides, Table 13-8.

       In the above landscape, we decline to deem the WCJ’s concerns with Dr.

Lateef’s opinion “unreasoned.” While we recognize that employers lack control over the

IRE process within the prevailing administrative scheme, claimants have as little or less

control.   To the degree that there is an element of unfairness associated with the

Bureau’s handling of individual IRE physician assignments, this would appear to be a

systemic concern most appropriate to administrative and/or legislative consideration.7

7
  We have often remarked upon the superior resources available to the General
Assembly in policymaking ventures. See, e.g., Official Comm. of Unsecured Creditors
of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers, LLP, 605
Pa. 269, 301 & n. 27, 989 A.2d 313, 333 & n. 27 (2010) (referencing the broader tools
available to the legislative branch, such as policy hearings and comprehensive
investigations); Naylor v. Twp. of Hellam, 565 Pa. 397, 408, 773 A.2d 770, 777 (2001)
(continuedP)
                                     [J-40-2016] - 17
In the meantime, Employer will simply need to do its best to communicate its case-

specific concerns to the Bureau, at least to the extent that it wishes to pursue the series

of ongoing impairment rating examinations of Claimant authorized by Section

306(a.2)(6).

       Notably, our decision that a workers’ compensation judge may validly accord

lesser weight to an underdeveloped, out-of-specialty opinion regarding the degree of

impairment associated with traumatic brain injury is consistent with the approach of

other jurisdictions that do not apply an uncontradicted medical evidence rule. See, e.g.,

Adams v. Massanari, 55 Fed. Appx. 279, 284 (6th Cir. 2003) (explaining that, as a

general rule at least, an administrative law judge “may discredit the opinion of a

physician that is outside her area of expertise“ (citing Turley v. Sullivan, 939 F.2d 524,

527 (8th Cir. 1991))).8

       In summary, this Court has previously determined that physicians’ impairment

rating opinions pertaining to IREs conducted under Section 306(a.2)(6) are subject to

vetting through the “traditional administrative process.” Diehl, 607 Pa. at 279, 5 A.3d at

245; Gardner, 585 Pa. at 380, 888 A.2d at 766. Accordingly, the Commonwealth Court


(Pcontinued)
(recognizing the General Assembly's superior ability to examine social policy issues and
determine legal standards so as to balance competing concerns); Program Admin.
Servs., Inc. v. Dauphin Cnty. Gen. Auth., 593 Pa. 184, 192, 928 A.2d 1013, 1017–18
(2007) (“[I]t is the Legislature's chief function to set public policy and the courts' role to
enforce that policy, subject to constitutional limitations.”).

8
  We do caution that workers’ compensation judges should be sensitive to the character
of the impairment rating process, which focuses on the entire body of the examinee.
Thus, by its nature, the evaluation in most cases will require a review of cross-specialty
considerations. Our decision here focuses on the discrete nature of brain injuries in that
they often implicate specialized assessment measures, see AMA Guides §13.3d, the
undisputed fact that Claimant suffers from at least a moderate brain injury, and the
import of such injury to the overall impairment rating.


                                      [J-40-2016] - 18
erred in its conclusions that a workers’ compensation judge lacks the authority to reject

uncontradicted testimony by an IRE physician and that, in the present case, the WCJ

was required to identify substantial contrary evidence in the record to support such

rejection.



       The order of the Commonwealth Court is reversed, and the matter is remanded

for reinstatement of the workers’ compensation judge’s adjudication, as affirmed by the

WCAB.



       Justices Baer, Todd, Donohue, Dougherty and Wecht join the opinion.




                                    [J-40-2016] - 19
