IRE Physicians and Employers Must Consider Conditions Not Included Within Either the Controlling Document or Judicially Determined Injury Description; Claimants Can Successfully Challenge IRE Ratings If This Is Not Done

06.14.22

Category: Pennsylvania

The Commonwealth Court has held that an IRE based only upon all “accepted” work-related diagnoses is nonetheless subject to being found invalid. In this case, the IRE physician relied upon the Bureau controlling document and a Judge-approved stipulation. Nonetheless, the Court ruled that where the evidence as a whole shows the degree of impairment “due to the compensable injury” reaches or exceeds 35 percent, non-recognized, additional injuries must be considered. Sicilia v. API Roofers Advantage Program (WCAB), No. 747 C.D. 2021, 2022 WL 2028201, filed June 7, 2022 (Pa. Commw. 2022).

Under the maxim of bad facts make bad law, the Sicilia case involves a complicated history of an older case dating from 1999. The Notice of Compensation Payable (NCP) accepted a lumbar strain and knee contusion. Following extensive litigation and a Workers’ Compensation Judge (WCJ) Decision, the description of injury was expanded to include chronic pain, psychological conditions. In 2011, a WCJ had held that back surgeries were also related to the work injury. However, the technical injury description remained “lumbar strain, left knee contusion, chronic pain syndrome, and chronic adjustment disorder with anxiety and depression,” referencing the earlier stipulated decision. Thereafter, an August 2019 IRE performed by Daisy Rodriguez, M.D. offered three critical opinions, resulting in the employer filing a Modification Petition, seeking to change the claimant’s disability status from total to partial, and to enforce the 500-week cap.

First, Dr. Rodriguez gave the claimant a 23-25 percent impairment rating, based upon the accepted injury description of “lumbar strain, left knee contusion, chronic pain syndrome, and chronic adjustment disorder with anxiety and depression.” Second, Dr. Rodriguez opined that the conditions of lumbar disc protrusion or spondylolisthesis with lumbar radiculopathy were, in fact, attributable to the work-related injuries, though not included within the NCP as expanded through prior litigation. Third, and at the employer’s request for an addendum, Dr. Rodriguez opined that the whole person impairment reached 43-45%, including calculations accounting for the lumbar protrusion or spondylolisthesis with radiculopathy. This third opinion is the key, having brought the impairment rating in excess of the 35%. 

In granting defendant’s Modification Petition, converting benefits from total to partial, the WCJ found Dr. Rodriguez partly credible and accepted the opinion of a whole person impairment rating of 25%, while rejecting the opinion the work-related injuries included additional diagnoses as not “credible,” based upon the description of injuries included in the decisions of prior WCJs and the WCAB. Then, the WCAB affirmed, reasoning that the rendering of credibility determinations was within a WCJ’s domain.

In a reported opinion containing a strong dissent, the Commonwealth Court has now reversed, in effect reinstating the claimant to a total disability status, while holding it was error for the WCJ to constrain the IRE review solely to the accepted injury description. The Court wrote of “a misapprehension of the discretion accorded to an IRE physician-evaluator.” In doing so, the court cited a pre-Act 111 case, Duffey v. WCAB (Trola-Dyne, Inc.), 152 A.3d 984 (Pa. 2017), decided shortly before the Pennsylvania Supreme Court declared the IRE process as having been unconstitutional as under Act 111’s predecessor (the constitutional defect since rectified by the legislature). 

Duffey somewhat controversially had held that physician-examiners must exercise independent professional judgment to make a whole-body assessment of “the degree of impairment due to the compensable injury,” (quoting Section 306(a.2) of the Pennsylvania Workers’ Compensation Act, since-stricken), or said – in other words – that the IRE evaluator must consider conditions raised by a claimant at time of the IRE even if not already included as part of the compensable injury description. Coincidentally, the IRE expert in Duffey was named Dr. “Sicilia” (as distinguished from the claimant in this case). The Duffey IRE was invalidated after Dr. Sicilia had failed to evaluate whether an alleged psychological condition unnamed on the NCP should be included as part of the impairment rating.

Section 306(a.3) of the Act, which replaced section 306(a.2), continues to include the same language, “the degree of impairment due to the compensable injury.” Despite the extended previous litigation, judges weighing in and stipulated conditions concerning the extent of the work injury, here, the Sicilia Court did not limit the scope of the IRE to the specific wording on the NCP, as modified through prior litigation. When criticizing the WCJ’s underlying reasoning, the majority in Sicilia also cited the reasoned-decision requirements of Section 422 of the Act, adding that the “only reason proffered for discrediting the additional diagnoses was that they had not been previously found by other WCJs.” We are watching this case for signs of a Pennsylvania Supreme Court Appeal.

Comment: Sicilia is an example of how the courts will utilize pre-Act 111 case law pertaining to IREs, when addressing disputes arising from employers’ efforts to modify benefits through use of an IRE obtained since Act 111. With this holding tracking Duffey, employers and adjusters are cautioned to ensure that the IRE evaluator considers and rates all conditions undisputedly related to the work injury, even if not explicitly named in the operative Bureau document. The employer in Sicilia was not able to limit the scope of the impairment rating, by arguing the claimant had waived or was estopped from a rating of the additional conditions not described on the NCP but undisputedly related to the work injury by the IRE physician, the employer’s expert. The outcome in Sicilia, which now is reported law pending a successful appeal, was thus also a product of the evidence presented to the WCJ and of the viewpoint of the evaluating expert. The WCJ was bound to issue a decision based upon the evidence presented, which included an employer’s expert opinion as a whole that the work injury included impairment from additional conditions though not on the NCP.

If there is any question about the scope of the work injury and which conditions should be included as part of the rating, then alternative ratings may be obtained which include rating for additional, unaccepted conditions. To the extent the whole person impairment rating reaches or exceeds 35 percent, a modification of benefits may not be available. However, a modification may be available, if there is admissible medical evidence to explain why the conditions raising the impairment rating to or over the 35 percent threshold are not work injury related. Further, an IRE remains only one of multiple claims exposure management tools, with an IRE not cost-effective in many cases. The risk of an impairment rating evaluator expanding the compensable injury description on your NCP will have to be balanced with the potential benefits and alternative options.

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