The impairment rating procedure remains a powerful remedy for the employer and insurer to attempt to limit future indemnity wage loss benefit exposure. On October 24, 2018, Act 111 replaced the constitutionally infirm Section 306(a.2) with revised language. One requirement of Section 306(a.3) is that an injured worker receive 104 weeks of total disability benefits before an employer may require one’s submission to an Impairment Rating Evaluation (IRE).
At this time, legal challenges to the constitutionality of Section 306(a.3) continue to course their way through the appellate courts. However, a recent Commonwealth Court panel decision impacts an important factor in an Impairment Rating Evaluation - the description of work-related injury under review.
In Sicilia v. WCAB (API Roofers Advantage Program) No. 747 C.D. 2021, filed: June 7, 2022, a WCJ decision granting an employer petition to modify a claimant’s benefit status from total to partial disability pursuant to a Section 306(a.3) Impairment Rating Evaluation (IRE) was reversed by a three-judge panel of the Commonwealth Court. The case was remanded for reinstatement of ongoing total disability benefits.
The Commonwealth Court determined that a limitation of the scope of the IRE to the accepted/recognized work-related diagnoses was an error of law, based upon their interpretation of the prior Pennsylvania Supreme Court decision in Duffey v. WCAB (Trola-Dyne,Inc.), 152 A.3d 984 (Pa. 2017) (cited as Duffey II.) The Sicilia opinion reviewed the factual background reflecting the “rounds of litigation” involving a 1999 work injury which the Notice of Temporary Compensation Payable initially described as a “lumbar strain and left knee contusion.”
In 2019 employer secured an IRE, in accord with the “new” IRE procedures at Section 306a(3). Based upon the accepted work injury descriptions, the IRE whole person impairment was 23 percent which would support a modification of claimant’s benefits to a partial disability status. A separate score for the chronic pain syndrome diagnosis was not added as there was a diagnosis that covered the pain generator. The addition, a separate pain score would increase the impairment percentage to 25 percent.
Significantly, the IRE physician report, clinical summary section included diagnoses secondary to the 1999 work accident, which were beyond the diagnoses described in the prior WCJ decisions: “lumbar protrusion or spondylolisthesis with lumbar radiculopathy.” The IRE physician qualified her rating, stating that it was constrained to address only the diagnoses accepted by the NTCP, NCP, Stipulations or WCJ decisions. Importantly - to better understand the appellate court decision – the IRE evaluator stated that she was convinced that the additional diagnoses were in fact attributable to the work injury.
Employer requested an addendum IRE report to separately address the inclusion of impairment scores for diagnoses beyond the accepted injury description - “lumbar protrusion or spondylolisthesis with lumbar radiculopathy.” With that inclusion, the whole person Impairment score was 43 percent. If one added a separate chronic pain score, the rate was 45 percent. As this addendum report impairment rating score exceeded the 35 percent threshold, there would be a presumption of continuing total disability. Section 306(a.3) (2), (4), (5), (7)).
The WCJ decision found the IRE initial report of 25 percent impairment as credible. The WCJ found the portion of the IRE physician-evaluator testimony (and addendum report) that the 1999 work-related injury included the additional lumbar diagnoses, was not credible medical evidence.
The court's opinion in Sicilia reversed the modification of claimant’s benefit status, commenting that the IRE physician-evaluator “misapprehended her responsibility as a physician-evaluator in her initial calculation of Claimant’s whole person impairment rating,” as she felt her initial rating was constrained to the accepted injury diagnoses.
The Sicilia court exclusively relied upon the Supreme Court Duffy opinion in reciting: The IRE physician-evaluator is explicitly invested with the obligation to determine “the degree of impairment due to the compensable injury,” (emphasis in original) “a physician-evaluator must consider and determine causality in terms of whether any particular impairment is ‘due to’ the compensable injury.” Moreover, the required evaluation is of “the percentage of permanent impairment of the whole body resulting from the compensable injury.”
The Sicilia court acknowledged that the NCP (NTCP) should define “compensable injury” for purposes of this inquiry but the court further stated that even under former Section 306(a.2) and the AMA Guides, “the physician-evaluator must exercise professional judgment to render appropriate decisions concerning both causality and apportionment.”
The Sicilia court stated - the AMA Guides refer to an “event” rather than an “injury,” permitting the physician-evaluator to attribute a particular condition to the event in which the claimant was injured rather than the injury itself – “a physician-evaluator simply may not entirely disavow any and all responsibility to consider causality relative to a given condition.”
The Commonwealth Court reasoning rejected the employer arguments that:
The Commonwealth Court reasoned:
The Dissent opinion stated Duffey II has muddled the law in this area. It takes the IRE into issues of liability and causation for a work injury when the sole purpose of an IRE is to determine the claimant’s disability status after maximum medical improvement from the adjudicated work-related injury. See: Section 306(a.3)(8)(i) which defines “impairment” as “anatomic or functional abnormality or loss that results from the compensable injury and is reasonably presumed to be permanent.”
The Dissent would affirm the WCAB and WCJ, as the WCJ simply rejected the credibility of the IRE evaluator’s addendum opinion that claimant’s other symptoms were attributable to his work injury. Therefore, there was no credible evidence to support a finding that claimant has a whole-body impairment greater than 35 percent.
Once again, the best practice in handling this worker’s compensation issues depends upon the specific facts presented. One must take the time to review the medical records of treatment in your case before you select an appropriate worker's compensation remedy. As always, we recommend, discussing your case handling options with your workers’ compensation professional.