[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 : : : : : : : : : : : : : 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

O PINION 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 evaluation s (“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 “ det ermine the degree of impairment due to the compensable injury,” it mean t 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).[ J

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- 2 T he Duffey Court nevertheless concluded that t he legislature intended to give IRE physicians the authority to decide whether the claimant has any additional compensable injuries beyond those listed in the NC P

— and then to rate those additional injuries

. 3 Though nothing in the Act authorizes physician s to sit as junior

- varsity WCJs , the Duffey majority created this result by conflat ing the concepts of “injury” and “impairment

. ” 4 The
decision also purported to rely upon the statut ory mandate that IRE physicians must calculate the claimant’s degree of “whole

- body” or “whole

- person” impairment

. 5 But t he 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 th at compensable inju ry. Duffey , 152 A.3d at 990

. Notably, t his novel construction of the Act w as not one that the claimant in Duffey himself proposed

. The interpretation was a judicial innovation. See i d. at 998 (Wecht, J., dissenting)

. 4 I d. at 998 (Wecht, J., dissentin g) (“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 t he compensable injury. ”).

6 Duffey , 152 A.3d at 99 9 (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 org an systems and certain “regional” ratings must be converted into “whole

- person” rating s ); 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 6 0% 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

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- 3 IRE physician in this case, at Employer’s insistence, issued dual impairment ratings: one that evaluated only the esta blished 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 IRE s , which are intended in many cases to be self

executing 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 post

IRE. 9 This reinterpretation of the holding in Duffey would restore to WCJ s control over defining the claimant’s compensable injury. It w ould 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 exceed ed 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 I RE 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 p artial 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 pe tition 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 i n 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

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- 4 threshold for permanent disability , meaning that Employer never would have filed the modifi cation 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

. A nd 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

.