As was noted in this space some time ago, the Pennsylvania Supreme Court was considering an employer’s petition for allowance of appeal in Sicilia v. API Roofers Advantage Program (Workers' Compensation Appeals Board), 277 A.3d 1213 (Pa. Commw. 2022), which necessarily implicated Duffey v. Workers' Compensation Appeals Board (Trola-Dyne), 152 A.3d 984 (Pa. 2017). The Supreme Court did issue its decision in Sicilia on July 17, 2024, but an evenly divided court failed to disturb either the underlying, Commonwealth Court decision or Duffey. Both cases, along with the recently decided City of Philadelphia v. Turner (Workers' Compensation Appeals Board), (Pa. Commw. No. 1190 C.D. 2023, filed Oct. 17, 2024) address whether an IRE physician is permitted to consider (or must consider) injuries and disabilities not formally recognized as accepted the employer when determining the injured worker’s whole body impairment. While it was thought that all IRE appellate litigation had been exhausted, this issue persists.

By way of background, the Duffey court drew a distinction between an IRE physician seeking to rate a specific accepted injury and providing a rating for all the “impairments” flowing from the accepted injury. The court found that rating the impairments, as opposed to just the injury was required under the “plain directive of the statute.” The court held that IRE doctors must exercise “independent professional judgment” to make a whole-body impairment assessment of “the degree of impairment due to the compensable injury.” Apparently, this means an IRE physician cannot be limited by the four corners of an NCP, since NCPs do not speak to the “range of impairments” flowing from the accepted injury. In sum, the court ruled that the zct actually required IRE doctors to look beyond the exact description of injury for purposes of determining an impairment rating.

In Sicilia, the IRE physician assigned a whole person impairment rating of 23% using only the “accepted work-related injuries in the nature of lumbar strain, left knee contusion, chronic pain syndrome, and chronic adjustment disorder with anxiety and depression.” However, the “clinical summary” portion of the IRE report included the unaccepted diagnoses of “lumbar disc protrusion or spondylolisthesis with lumbar radiculopathy.” The IRE doctor noted that the 23% whole body impairment rating was limited to only the accepted diagnoses, despite the fact the IRE physician believed the additional diagnoses were also causally related to the work injury. An addendum report to the IRE assigned a whole person impairment rating of 43% when also considering the additional diagnoses. The WCJ adopted the lower whole-person impairment rating of 23%, noting that the additional diagnoses were not included in the accepted injury.

On eventual appeal to the Commonwealth Court, the Sicilia court argued that consistent with Duffey, the additional diagnoses in the impairment rating warrant consideration. The court, largely in agreement, found Section 306(a.3)(1), as elaborated in Duffey, to “place a great deal of discretion in the physician-evaluator to determine what diagnoses are ‘due to’ a work-related injury,” outside the ordinary modification process. The court found that the WCJ erred as a matter of law in constraining the IRE review exclusively to accepted injury of record.

Turning our attention back to Philadelphia v. Turner (Workers' Compensation Appeals Board), we witness the continued adherence to Duffey (and Sicilia) absent further Supreme Court action. The facts in Turner stem from a March 2006 work injury. After much litigation, the claimant was left with an accepted injury to his “low back.” In January 2022, the employer filed the modification petition, seeking to modify the claimant's benefits status from temporary total to temporary partial based on a Dec. 15, 2021 IRE, which found a whole body impairment of less than 35%. The only evidence presented was the trial deposition of the IRE doctor, wherein the physician concluded that pursuant to the American Medical Association Guides, Sixth Edition, the claimant's whole-body impairment rating was 31%. However, the IRE doctor testified the claimant suffered from depression, anxiety and erectile dysfunction or incontinence which could very well be related to the work injury, but which were not rated, as not being specifically accepted by an NCP or other competent workers’ compensation authority.

After reviewing all the evidence (i.e., the IRE doctor’s testimony) the WCJ rejected the opinion of the IRE physician as internally inconsistent and neither competent nor credible. The WCJ held that the IRE doctor’s failure to rate the depression, anxiety, erectile dysfunction and incontinence that the claimant reported violated both Sicilia and Duffey. Since employer had the burden of proof, this rejection of the only evidence of record resulted in a denial of the employer’s petition to modify the claimant’s benefits to TPD.

In the employer’s appeal to the board, it argued that the WCJ's findings and conclusions were “erroneous, inconsistent, arbitrary and capricious, and not based on substantial evidence.” Specifically, the employer attempted to distinguish Duffey and Sicilia in that the claimant neither testified nor presented medical testimony regarding the additional diagnoses. The Board rejected employer’s argument concluding that notwithstanding any legal argument, the WCJ found the IRE doctor’s testimony to be “not credible” and credibility determinations and the weight of evidence are solely within the discretion of the WCJ and cannot be disturbed.

The Commonwealth Court affirmed the WCJ and the board, finding that the above-referenced case law still holds that an IRE physician must consider more than simply the strict “accepted work injury of record.” The court found that an IRE physician must still “exercise independent professional judgment” to render a whole-body impairment rating due to a compensable injury. The court agreed with the claimant that the WCJ rejection of the IRE physician’s opinion was not arbitrary or capricious.

Given that Justice Daniel McCaffery did not participate in the Supreme Court’s decision in Sicilia, one would think that the court will revisit this issue soon. The issue as framed when the court agreed to hear Sicilia as: Did the the Commonwealth Court impermissibly expand the holdings in Duffey v. Workers' Compensation Appeals Board (Trola-Dyne), 152 A.3d 984 (Pa. 2017) ... as to usurp the authority of the workers’ compensation judge to determine the nature and extent of the compensable injury?

That question has not been answered. It will be.

Christian Petrucci, of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers' compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.