The IRE process for injuries rated is not confined to those injuries described in prior decisions. Section 306 (a.3)(1) of the Act allows for discretion by the IRE physician to determine what diagnoses are due to the work injury.
The claimant sustained work injuries to his low back and left knee in 1999 after falling from a ladder. His injuries were later expanded by a Stipulation approved by a Workers’ Compensation Judge’s order to include chronic pain disorder and chronic adjustment disorder with anxiety and depression. Subsequent litigation of later petitions resulted in a judge finding that surgeries performed on the claimant’s low back were related to the work injury, as well as a judge’s decision approving a Stipulation resolving a penalty petition that contained the same description of the work-related injuries.
The employer filed a modification petition as a result of an August 1, 2019, IRE performed on the claimant. Based on the accepted work injuries, the IRE physician found an impairment of 23%. Pursuant to the AMA Guides, the rating did not give separate weight to chronic pain syndrome, but the IRE physician said that if it was added, the rating would be 25%. The doctor said she confined her impairment to the diagnoses of the work injuries, not other diagnoses listed in the clinical summary portion of her report. In an addendum, she said if the other secondary diagnoses were included, the impairment rating would be 43%. She also said that she considered those diagnoses related to the work injury.
The judge granted the petition, which the claimant appealed, arguing that the Workers’ Compensation Judge failed to consider reasonably-related conditions not formally added to the Notice of Compensation Payable, such as the surgeries performed that were found to be the employer’s responsibility. The Workers’ Compensation Appeal Board affirmed.
On appeal to the Commonwealth Court, the claimant argued that the judge was wrong to determine that only those injury descriptions contained in prior decisions dictated what may be considered in the IRE. The employer countered that res judicata controlled and that the claimant was bound by the stipulated injuries in prior decisions. The Commonwealth Court reversed, holding that the judge erred as a matter of law in constraining the IRE review to the earlier descriptions of the work injuries. According to the court, pursuant to the Supreme Court’s pre-Protz decision in Duffey II (Duffey v. WCAB (Trola-Dyne, Inc.), 152 A.3d 984 (Pa. 2017)), an IRE physician has a great deal of discretion to determine what diagnoses are “due to” the compensable injury.
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