[J-60-2023] 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

VINCENT SICILIA

 v. 

API ROOFERS ADVANTAGE PROGRAM 

(WORKERS' COMPENSATION APPEAL 

BOARD)

APPEAL OF: API ROOFERS ADVANTAGE 

PROGRAM

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No. 14 MAP 2023

Appeal from the Order of the 

Commonwealth Court dated June 7, 

2022 at No. 747 CD 2021 Reversing 

the Order of the Workers' 

Compensation Appeal Board dated 

June 25, 2021 at No. A20-0734 and 

Remanding.

ARGUED: October 18, 2023

OPINION IN SUPPORT OF REVERSAL

JUSTICE WECHT DECIDED: July 17, 2024

This Court’s decision in Duffey v. W.C.A.B. (Trola-dyne, Inc.)1 misinterpreted 

Section 306(a.2) of the Workers’ Compensation Act. That provision instructs physicians 

conducting impairment rating evaluations (“IREs”) to “determine the degree of impairment 

due to the [claimant’s] compensable injury.”2 When an IRE takes place, a claimant’s 

“compensable injury” has already been well-established, either because the employer 

long ago issued a notice of compensation payable (“NCP”) or because a Workers’ 

Compensation Judge long ago found a specific injury to be compensable. Thus, when 

the General Assembly directed IRE physicians to “determine the degree of impairment 

due to the compensable injury,” it meant the compensable injury for which the claimant 

has been receiving compensation.

1 152 A.3d 984 (Pa. 2017). 

2 77 P.S. § 511.3(1).
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The Duffey Court nevertheless concluded that the legislature intended to give IRE

physicians the authority to decide whether the claimant has any additional compensable 

injuries beyond those listed in the NCP—and then to rate those additional injuries.

3 

Though nothing in the Act authorizes physicians to sit as junior-varsity WCJs, the Duffey

majority created this result by conflating the concepts of “injury” and “impairment.”4 The 

decision also purported to rely upon the statutory mandate that IRE physicians must 

calculate the claimant’s degree of “whole-body” or “whole-person” impairment.

5 But the 

Duffey majority badly misconstrued those concepts.

6

We should accept Employer’s invitation to overturn Duffey today. As I predicted in 

dissent, the decision has caused significant confusion regarding the proper scope of the 

IRE physician’s evaluation.7 Duffey injected so much uncertainty into the system that the 

3 The Duffey majority held that IRE physicians must “apply professional judgment” 

and evaluate not only the compensable injury set forth in the NCP, but also any other 

injuries that the physician believes may be “fairly attributable” to that compensable injury. 

Duffey, 152 A.3d at 990. Notably, this novel construction of the Act was not one that the 

claimant in Duffey himself proposed. The interpretation was a judicial innovation. See 

id. at 998 (Wecht, J., dissenting).

4 Id. at 998 (Wecht, J., dissenting) (“The Majority’s principal misstep is that it 

mislabels Duffey’s psychological conditions, both of which are injuries in their own right, 

as ‘impairments’ that the IRE physician must diagnose and evaluate.” (footnote omitted)). 

5 See, e.g., 77 P.S. § 511.3(8)(ii) (“For purposes of this clause, the term ‘impairment 

rating’ shall mean the percentage of permanent impairment of the whole body resulting 

from the compensable injury.”).

6 Duffey, 152 A.3d at 999 (Wecht, J., dissenting) (explaining that impairment ratings 

must be expressed in terms of “the percentage of permanent impairment of the whole 

body” because the Guides’ formulae differ across various organ systems and certain 

“regional” ratings must be converted into “whole-person” ratings); see id. (“The complete 

loss of a hand, for instance, is equivalent to 90% upper-extremity impairment, while the 

complete loss of an upper extremity is equivalent to 60% whole-person impairment.”).

7 See, e.g., Sicilia v. API Roofers Advantage Program, 277 A.3d 1213, 1221 (Pa.

Cmwlth. 2022) (Leavitt, J., dissenting) (explaining that Duffey “has muddled the law in this 

area” by “tak[ing] the IRE into issues of liability and causation for a work injury when the 

(continued...)
[J-60-2023] - 3

IRE physician in this case, at Employer’s insistence, issued dual impairment ratings: one 

that evaluated only the established work injuries and another that included additional 

injuries that were never found to be compensable. This either-or approach completely 

defeats the purpose of conducting IREs, which are intended in many cases to be selfexecuting without the involvement of a WCJ.8

Apparently unwilling to fully rescind Duffey’s flawed holding, Justice Brobson and 

Chief Justice Todd would limit Duffey to its facts. Under that approach, Duffey would 

apply only when the claimant seeks to amend the description of the workplace injury postIRE.9 This reinterpretation of the holding in Duffey would restore to WCJs control over 

defining the claimant’s compensable injury. It would not, however, fully repair the damage 

that Duffey has caused to the IRE process. Indeed, Justice Brobson and Chief Justice 

Todd would reaffirm that physician evaluators must “consider additional diagnoses 

reported by the claimant at the time of the IRE” even if they are “not included in the 

description of the accepted work-related injury.”10 What Justice Brobson’s OISR ignores 

is that, had the IRE physician done exactly that in this case, she would have assigned 

Vincent Sicilia an artificially-inflated impairment rating that exceeded the statutory 

sole purpose of an IRE is to determine the claimant's disability status after maximum 

medical improvement from the adjudicated work-related injury”).

8 If an employer requests an IRE within sixty 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 Workers’ Compensation Judge. 

77 P.S. § 511.3(1). If the employer does not request the IRE within the sixty-day window, 

it can still seek to modify the claimant’s benefits at any time, but it must file a modification 

petition and litigate the requested change in disability status. See Gardner v. W.C.A.B. 

(Genesis Health Ventures), 888 A.2d 758, 767-68 (Pa. 2005).

9 Justice Brobson’s OISR at 26 (“Had Claimant desired to rely on the principles 

established by this Court in Duffey, Claimant should have filed a review petition seeking 

to amend the description of his work-related injury to include [his] additional diagnoses.”).

10 Id. at 25.
[J-60-2023] - 4

threshold for permanent disability, meaning that Employer never would have filed the 

modification petition in the first place.

Put simply, Duffey made two critical mistakes. It took away the authority of WCJs 

to define the claimant’s compensable injury. And it gave physician evaluators permission 

to make a de novo assessment of the claimant’s “compensable injury” at every single 

IRE. Remedying the former error without addressing the latter is only a partial fix. While 

Justice Brobson’s approach is better than the status quo that Duffey wrought, the 

disruptive consequences arising from Duffey’s expansion of the physician-evaluator’s 

proper scope would persist.

I would overturn Duffey.