The Commonwealth Court addressed this question (as well as yet another constitutional issue) in the case of Conrad v. Department of Transportation (Workers’ Compensation Appeal Board), No. 557 C.D. 2022, filed February 26, 2024. The short answer is: “whatever records the IRE physician deems necessary in order to render an opinion.”
Steven Conrad sustained a work injury on July 5, 2005. He submitted to an IRE by Dr. John Kline on August 11, 2020, which resulted in an impairment rating of 11%. The employer then filed a Modification Petition seeking to change the status of his benefits from total to partial. The deposition testimony of Dr. Kline was presented in support of the petition. The WCJ found Dr. Kline’s testimony to be “logical, internally consistent, and well supported by his records review and physical examination.” Consequently, the Modification Petition was granted.
The claimant appealed to the Board arguing, among other things, that the employer failed to meet its burden of proof for a modification because the IRE physician, Dr. Kline, did not have an adequate evidentiary foundation or sufficient understanding of the facts for the IRE to be competent. Specifically, Dr. Kline did not review the most recent three years of medical records from the claimant’s treating doctor nor the most recent seven years of diagnostic studies. The Board rejected the claimant’s argument and affirmed the WCJ’s decision.
The claimant then sought review by the Commonwealth Court. The Court noted that the AMA Guides do not set forth specific medical records that physicians must obtain, review or consider in connection with an IRE. Instead, the AMA Guides merely state that the IRE should include a comprehensive, accurate medical history and review of all pertinent records. Moreover, as the factfinder, it is solely for the WCJ to assess credibility and to determine what weight, if any, to give any evidence.
Here, the employer presented the testimony of Dr. Kline who took the claimant’s history, reviewed medical records and diagnostic studies and performed a physical examination. Dr. Kline acknowledged that the most recent diagnostic test he reviewed was an MRI from 2013. He also acknowledged that there were years of treatment records, from 2017 to 2020, by the claimant’s physician, Dr. Santo, that he did not review, although he did review Dr. Santo’s October 2020 narrative report. Dr. Kline did not believe that additional records were necessary. He testified that he discussed the claimant’s current treatment and symptoms with him and had enough information to perform the IRE. The WCJ accepted Dr. Kline’s testimony as credible and consistent with the AMA Guides. Based on the credited evidence, the WCJ found that Dr. Kline conducted the August 11, 2020 IRE in accordance with the AMA Guides and that claimant had a whole person impairment rating of 11%. The Court affirmed the decision of the Board.
Notwithstanding the Court’s decision, we strongly recommend that ALL AVAILABLE medical records be provided to an IRE physician. Doing so will not only enhance the doctor’s credibility, but may also avoid litigation such as that faced by the employer in the Conrad case.