Reinstatement of Disability Benefits; Judicial Review of WCAB Determination

Sicilia v. API Roofers Advantage Program (Workers’ Comp. Appeal Bd.), 277 A.3d 1213 (Pa. Cmwlth. 2022), allocatur granted Feb. 15, 2023, appeal docket 14 MAP 2022

In Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.), 152 A.3d 984 (Pa. 2017) (Duffey II), the Supreme Court held that under the Impairment Rating Evaluation (IRE) process, an IRE physician-evaluator must consider not only the injuries listed on the notice of compensation payable (NCP) but any additional injuries that subsequently arose and were known at the time of the IRE but had not been formally added to the injury description. The issue in this case is whether the Commonwealth Court, in reversing the Workers Compensation Appeal Board and reinstating the claimant’s total disability benefits, correctly applied the holding of Duffey II or expanded Duffey II and thereby intruded on the province of the WCAB and substituted the court’s judgment.

Claimant in this case held the status of total disability until, in response to the employer’s modification petition, the WCAB altered his status to partially disabled. Claimant sustained work-related injuries on August 25, 1999, when he fell from a ladder on a worksite. It was established that his work injuries included a lumbar strain and a left knee contusion. In 2003 that description was expanded to include chronic pain syndrome and chronic adjustment disorder with anxiety and depression.

In October 2019, the employer filed the petition at issue here, seeking a modification of Claimant’s indemnity benefits from total to partial as of August 1, 2019, based upon the Impairment Rating Evaluation (IRE) of Daisy Rodriguez, M.D., the designated physician evaluator for the IRE. Her impairment rating of 25%, based only on the description of work related injuries as of 2003, did not include the additional diagnoses of lumbar disc protrusion or spondylolisthesis with lumbar radiculopathy, which she found to be credible and attributable to his work-related injury. Had she included these other diagnoses, her impairment rating would have been 43%. Given that the boundary between partial disability and total disability is 35% impairment, the difference is significant. The Workers Compensation Judge (WCJ) found Dr. Rodriguez’s 25% conclusion credible, but rejected her 43% conclusion as not credible. The WCAB affirmed.

On appeal by the Claimant, the Commonwealth Court majority reversed. Asserting that the Supreme Court’s holding in Duffey II is that the IRE physician-evaluator is explicitly invested with the obligation to determine the degree of impairment due to the compensable injury, the majority concluded that Dr. Rodriguez mistakenly believed that her impairment rating was constrained by the previously accepted diagnoses, thereby excluding lumbar protrusion or spondylolisthesis with lumbar radiculopathy, even though she was convinced that the excluded diagnoses were also attributable to the 1999 work related injury. Accordingly, the majority reasoned that the WCJ misinterpreted Duffy II and thereby committed an error of law, as opposed to a credibility determination as to Dr. Rodriguez’s testimony:

The WCJ’s reasoning for rejecting Dr. Rodriguez’s testimony concerning the additional diagnoses, and the higher rating resulting from such inclusion, was not, in fact, a credibility determination based on evaluation of the evidence, but rather a misapprehension of the discretion accorded an IRE physician-evaluator. The only reason proffered for discrediting the additional diagnoses was that they had not been previously found by other WCJs. Simply put, the WCJ erred as a matter of law in constraining the IRE review solely to the earlier accepted descriptions of Claimant’s work injuries.

Slip op. at 10.

In dissent, President Judge Emerita Leavitt argued for affirmance, asserting that the WCJ simply and properly determined that Dr. Rodriguez’s second conclusion that the excluded lumbar protrusion or spondylolisthesis with lumbar radiculopathy diagnoses were attributable to the claimant’s 1999 work related injury was not credible. As such, no error of law was committed, and the majority’s decision improperly substituted the court’s judgment for that of the factfinder.

Judge Leavitt went on to call for a revisiting of Duffey II, arguing that “Duffey II has muddled the law in this area. It takes the IRE into issues of liability and causation for a work injury when the sole purpose of an IRE is to determine the claimant’s disability status after maximum medical improvement from the adjudicated work-related injury.” Slip op. at MHL-4.

The Supreme Court has granted allocatur. The issues, as stated by Petitioner, are:

 (1) Did the Commonwealth Court impermissibly expand the holdings in Duffey v. WCAB (Trola-Dyne, Inc.), 152 A.3d 984 (Pa. 2017) . . . as to usurp the authority of the Workers’ Compensation Judge to determine the nature and extent of the compensable injury?

(2) Did the Commonwealth Court err in reversing the Workers’ Compensation Appeal Board by substituting [its] assessment of the credible testimony for that of the fact finder?


For more information, contact Kevin McKeon or Dennis Whitaker.