Pennsylvania Supreme Court Rules That Workers’ Compensation Impairment Rating Physicians Are Not Bound by the Injury Described in the Notice of Compensation Payable

The Pennsylvania Supreme Court ruled yesterday that a physician performing an Impairment Rating Evaluation under Section 306(a.2)(1) of the Workers’ Compensation Act, 77 P.S. § 511.2(1) should consider all conditions that the physician believes are related to the work injury when performing an IRE. In the case, Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne), No. 4 MAP 2016 (Pa. January 19, 2017), the Court ruled that an IRE physician must consider and exercise independent professional judgment to make a whole-body assessment of the degree of impairment “due to” the compensable injury.

In Duffey, the claimant underwent an IRE after receiving 104 weeks of benefits. The IRE physician considered only the injuries listed on the NCP and concluded that the claimant had a 6 percent total body impairment. Claimant filed a Review Petition, alleging that the physician failed to consider all of his work-related injuries, including psychological injuries. The Workers’ Compensation Judge agreed, granted the petition, invalidated the IRE and amended the NCP to include the psychological injuries. On appeal, the Workers’ Compensation Appeal Board reversed and the Commonwealth Court affirmed the WCAB ruling. The Supreme Court granted allocatur and reversed the decision, with two Justices dissenting.

In the Majority Opinion, Chief Justice Saylor concluded that a physician conducting an IRE (1) must apply professional judgment to assess (or per the applicable Regulations, arrange for an assessment of) the Claimant’s psychological conditions, and (2) determine whether those condition were fairly attributable to the compensable work injury.

In his dissenting opinion, Justice Baer asserted that the Majority had departed from the issue presented by the Claimant. He also concluded that the ruling will allow claimants to invalidate an IRE by expressing a new symptom previously unknown to an employer.

In a separate dissenting opinion, Justice Wecht argued that the Majority had misconstrued the concept of a “whole body” impairment to permit IRE physicians to go beyond the scope of a claimant’s compensable injury. He also criticized the Majority’s reliance on the 6th edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, particularly in light of the Commonwealth Court’s decision in Protz v. W.C.A.B. (Derry Area School District, 124 A.3d 406 (Pa. Cmwlth. 2015), appeal granted, 133 A.3d 733 (Pa. 2016), in which the Court invalidated the use of the 6th edition of the AMA Guides.

Of further note, it is at the least, curious that the Court issued this Opinion before its decision in Protz. (Attorney Daniel J. Siegel authored the amicus curiae brief in Protz on behalf of the Pennsylvania Association for Justice.) If the Court completely invalidates the IRE process, then there would be no need for a decision in this case. I believe that the dissents are correct, however, that this opinion will lead to more litigation and will permit claimants to assert during an IRE that they suffer from injuries that have never been accepted as or determined by a WCJ to be compensable. Click here to read the Duffey opinion.

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