Pa. Top Court Justice Argues to Overturn IRE Precedent

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Philadelphia, PA (WorkersCompensation.com) -- A recent case from the Pennsylvania Supreme Court considered a question regarding how physicians should come to impairment rating evaluations.

Writing an "opinion in support of reversal," in Sicilia v. API Roofers Advantage Program, No. 14 MAP 2023 (Pa. 07/17/24), Justice David Wecht spelled out the case for knocking down precedent on the subject.

In Pennsylvania, an "opinion in support of" is issued when the justices split on the question at hand, which is what happened in the Sicilia case.

On the worker's claim, a physician, at the employer's assistance, issued dual impairment ratings:

(1) One that evaluated only the established work injuries.

(2) One that included additional injuries that were never found to be compensable.

A provision of Pennsylvania Worker's Compensation law requires physicians conducting impairment rating evaluations to determine the degree of impairment due to a claimant's compensable injury. Under Pennsylvania Supreme Court precedent, that approach was acceptable.

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According to Justice Wecht, it was time for a change.

In 2017, Pennsylvania's Supreme Court held in Duffey v. WCAB, 152 A.3d 984 (Pa. 2017), that IRE physicians must "apply professional judgement" and evaluate not only the compensable injury but also any other injuries that the physician believes may be "fairly attributable" to that compensable injury.

In this case, the Pennsylvania Supreme Court decided that the Duffey decision was a "judicial innovation" and a "novel construction of the Act," that needed to be overturned.

"This either-or approach completely defeats the purpose of conducting IREs, which are intended in many cases to be self executing without the involvement of a WCJ," the court's majority wrote this time around.

Workers' Comp 101: In Pennsylvania, if an employer requests an IRE within 60 days of the claimant's receipt of 104 weeks of total-disability benefits and the IRE yields an impairment rating of less than 35%, then the IRE is self-executing, meaning that the claimant's disability status can be modified from total to partial without the involvement of a WCJ.

If the employer does not request the IRE within the 60-day window, it can seek to modify the claimant's benefits at any time, but it must file a modification petition and litigate the request change in disability status.

Justice Wecht concluded that Duffey made two critical mistakes:

(1) It took away the authority of WCJs to define the claimant's compensable injury.

(2) It gave physician evaluators permission to make a de novo assessment of the claimant's "compensable injury" at every IRE.

Thus, Justice Wecht called for the overturning of Duffey.

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