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.