July 30, 2016

When Does an IRE Address All Work-Related Injuries?

In Duffey, the Commonwealth Court was presented with the claimant's appeal from the WCAB decision reversing a WCJ's decision that the IRE submitted by the employer was invalid because it did not address mental injuries which the WCJ newly added to the claimant's Notice of Compensation Payable after the IRE was already performed.  On appeal, the claimant argued that the Board erred in modifying his disability status from total to partial based on an IRE that did not consider all of the claimant's work-related injuries, because the IRE did not consider the injuries that were added to the NCP after the IRE was performed.

Eleven days after the claimant reached 104 weeks of receiving total disability benefits, the employer requested an IRE.  In its IRE request, the employer described the claimant's work injury as "bilateral hands-nerve and joint pain."  The claimant submitted to an IRE with Dr. Bruce Sicilia, who determined that the claimant had a six percent impairment rating on June 25, 2011, and issued a report.  Based on Dr. Sicilia's rating, the employer issued a Notice of Change of Workers' Compensation Disability Status Form on June 28, 2011, informing the claimant of his impairment rating and changing the claimant's disability status from total to partial.

The claimant filed a Review Petition asserting that the IRE was invalid because the description of the injury was incomplete.  The claimant testified on his own behalf, and presented the deposition's testimony of his family physician, who indicated that she "diagnosed the Claimant as suffering from adjustment disorder with depressed mood" on August 18, 2010.  The employer presented the deposition testimony of Dr. Sicilia and Dr. Michals.  Dr. Sicilia testified regarding his findings from the IRE, which addressed only those injuries described as work-related in the IRE designation sheet and did not address the claimant's mental conditions, and his imposition of a six percent whole body impairment rating for the claimant.  The WCJ accepted the claimant's testimony and evidence, and rejected the employer's evidence.  The WCJ added the mental injuries to the claimant's NCP as work-related injuries, and concluded that Dr. Sicilia's IRE was invalid because it did not address the claimant's additional work-related injuries.

The employer appealed to the WCAB, arguing that the WCJ erred in finding the IRE invalid.  The Board agreed, and reversed the WCJ's determination because the claimant did not seek to amend the NCP to include the diagnosis of adjustment disorder with depressed mood until more than five months after the June 2, 2011, IRE.

The claimant appealed to the Commonwealth Court, which ultimately concluded that an IRE which considers a claimant's work injury, as it is defined and exists at the time the IRE is performed, is valid notwithstanding an after-the-fact expansion of the scope of a claimant's work-related injury.  This decision is currently being appealed to the Pennsylvania Supreme Court.

What It Means to You

Currently, IREs that consider a claimant's work injuries as defined at the time of the IRE are valid.  Whether new injuries are added after the IRE has been performed is irrelevant to the validity of the IRE.  The law surrounding IREs is currently in flux, and the Duffey decision could be changed in the very near future depending on the outcome of the appeal to the Pennsylvania Supreme Court.


Duffey v. Workers' Comp. Appeal Bd. (Trola-Dyne, Inc.), 119 A.3d 445, (Pa. Cmwlth. 2015)