Commonwealth Court Clarifies Scope of IREs, Orders Remand in Light of Duffey Decision

In a case hinging on the interpretation of impairment rating evaluations (IREs) under the Act, the Commonwealth Court has ordered a remand after determining that the physician conducting the IRE erred by rating only the accepted work injuries. Citing the Supreme Court’s decision in Duffey v. WCAB, the court held that evaluators must consider all conditions causally related to the work injury—not merely those formally accepted—and that such legal errors cannot be shielded by a judge’s credibility findings.

In this case, the employer had an IRE performed on the claimant resulting in a whole-person impairment rating of 30%. The employer subsequently filed a petition to modify the claimant’s benefits based on this result.

The physician who performed the IRE testified in connection with the employer’s petition. He conceded during his deposition that he only rated the accepted work injuries. Although he considered heel and coccyx fractures, he did not give those injuries ratings because he determined the fractures to be healed.

Conversely, the claimant’s medical expert testified that he included a greater number of injuries in reaching his impairment rating of 41%. During his deposition, the claimant’s expert agreed that if he had limited his ratings to only the accepted injuries, the impairment rating would be below 35%.

The workers’ compensation judge granted the modification petition. In doing so, he credited the testimony of the physician who performed the IRE on the basis that his impairment rating only included the accepted injuries, whereas the impairment rating of the claimant’s expert included injuries that were not accepted.

The claimant appealed to the Workers’ Compensation Appeal Board per Duffey II (Duffey v. WCAB (Trola-Dyne, Inc.), 152 A.3d 984 (Pa.2017)), the Supreme Court’s decision holding that an IRE may be invalidated if the evaluator limits his ratings solely to the accepted injuries rather than including all conditions fairly attributable to the compensable injury.

The employer appealed to the Commonwealth Court, arguing that the Board impermissibly disturbed a credibility determination made by the judge. The court held that for a physician-evaluator to misapprehend the discretion afforded to him in the IRE process and consequently exclude impairments due to the claimant’s work injury, although not described in the Notice of Compensation Payable or considered an otherwise accepted injury, is an error of law.

The court further held that a judge cannot insulate this error from a reviewing agency or the court’s standard of review under the guise of a credibility determination. The court concluded that a remand to the judge was necessary in order to properly resolve conflicts in the impairment ratings and testimonies given by the experts.