Impairment Rating Evaluations Must Now Consider Additional Conditions Not Acknowledged as Work Injuries


Category: Pennsylvania

The Pennsylvania Supreme Court has held that a physician-examiner performing an impairment rating evaluation (IRE) must consider conditions raised by the injured worker at the time of the impairment rating evaluation even if not already recognized as a compensable injury by Notice of Compensation Payable. Duffey vs. WCAB (Trola-Dyne, Inc.), J-90-2016, decided January 19, 2017.

In this case, the notice of compensation payable acknowledged electrical burns to both hands of the injured worker from stripping some electrical wires. After paying 104 weeks of total disability benefits, the employer requested an impairment rating evaluation for the injury described as "bilateral hands-nerve and joint pain." The physician-evaluator assigned a whole body impairment rating of six percent utilizing the Sixth Edition of the AMA Guides to the Evaluation of Permanent Impairments. The injured worker challenged the employer's self-executing notice of change of disability status to partial with a Petition for Review attacking the validity of the IRE. This was filed within the 60-day challenge period from the date of that notice. The injured worker argued that the physician-evaluator failed to consider and rate the additional conditions the employee had of adjustment disorder and post-traumatic stress disorder.

The Workers' Compensation Judge, after reviewing conflicting medical expert testimony, directed that the injured worker's psychological condition should be added to the Notice of Compensation Payable and determined that the IRE was invalid because the physician-evaluator had not addressed those conditions.

The Pennsylvania Supreme Court ultimately agreed that the IRE was invalid for the physician-examiner's failure to rate the impairments from all of the work-related conditions, including the psychological conditions, raised for the first time at the impairment rating evaluation. The Court reasoned that under Section 306(a.2) of the Pennsylvania Workers' Compensation Act and the AMA Guides (Sixth Edition) the physician-evaluator must apply professional judgment concerning the complexity of the injury, the specific diagnoses, whether acknowledged by the employer or not, and the causal relationship to the work event, and only then assess the degree of impairment. The failure of a physician-evaluator to consider potential impairment from conditions beyond the acknowledged injuries is sufficient grounds to invalidate an IRE and change of disability status.

Comment: Employers can expect injured workers to raise various "new conditions" at the time of impairment rating evaluations with the possibility that they may invalidate an incomplete IRE or at least amend the Notice of Compensation Payable (NCP) through the physician-evaluator rather than through a traditional adversarial proceeding. If there is no dispute that a condition is part of the compensable injury, but not included on the NCP, then file an amended NCP and advise the physician-evaluator to use the amended description of the injuries to determine the whole body impairment under the AMA Guides (Fourth and Sixth Editions). If there is a dispute, then the physician-evaluator can be asked to rate the conditions that are clearly compensable and perform another rating that also includes the disputed conditions. If the rating is less than 50 percent considering all potential conditions then the employer may still obtain the change of disability status to partial. The Duffey decision is also noteworthy for allowing another Sixth Edition IRE to proceed despite the Commonwealth Court decision in Protz finding use of the Sixth Edition Guides unconstitutional. The Protz decision is currently on appeal to the Pennsylvania Supreme Court.

For more information, please contact Stephen T. Potako at or 267.765.4132, or Peter J. Weber at or 215.972.7901.

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