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State of Confusion: Duffey v. WCAB and Pennsylvania’s Impaired Impairment Rating System

June 1, 2017

Defense Digest, Vol. 23, No. 2, June 2017

By Francis X. Wickersham, Esq.*

Key Points:

  • Under the Pennsylvania Workers’ Compensation Act, IREs are utilized by physician-evaluators to “determine the degree of impairment due to the compensable injury.”
  • Pennsylvania’s appellate courts have contributed to uncertainty about IREs.


Impairment Rating Evaluations (IREs) have been in existence for over 20 years in Pennsylvania, ushered in with the passage of Act 57 and its significant amendments to the Pennsylvania Workers’ Compensation Act. In that time, Pennsylvania’s Commonwealth and Supreme Courts have scrutinized and interpreted Section 306(a.2) of the Act, the provision that established the IRE system. At no time in recent memory, though, have Pennsylvania’s higher courts contributed to so much uncertainty about IREs.

In the 2015 case of Protz v. WCAB (Derry School District), 131 A.3d 572 (Pa. Cmwlth. 2015), a divided Commonwealth Court held that the Section 306(a.2) directive to determine impairment by using the most recent version of the American Medical Association Guides to the Evaluation of Permanent Impairment was an unconstitutional delegation of legislative authority to the AMA. In 2016, in IA Construction Company and Liberty Mutual Insurance Co. v. WCAB (Rhodes), 110 A.3d 1096 (Pa. 2016), a split Pennsylvania Supreme Court held that a Workers’ Compensation Judge had the authority to invalidate an IRE because of the IRE physician’s lack of expertise to give an opinion on a traumatic brain injury, even though the employer was the only party to present evidence of the claimant’s impairment. In their opinion, the Supreme Court openly called for legislative review of the Act’s IRE provisions.

At the beginning of 2017, another divided Supreme Court weighed in on Pennsylvania’s IRE system with its opinion in Duffey v. WCAB (Trola-Dyne, Inc.), 152 A.3d 984 (Pa. 2017). There, at the expiration of 104 weeks, the employer had requested an impairment rating of the claimant. The employer described the underlying compensable injury as “bilateral hands – nerve and joint pain.” The claimant injured his hands when he picked up electrified wires while repairing a machine. The impairment rating physician gave the claimant a six percent whole-body impairment. The employer then issued a notice to the claimant adjusting his disability status from total to partial. The claimant timely challenged the adjustment by filing a Petition to Review in which he argued that the IRE was invalid because the IRE physician failed to rate the full range of work-related injuries, including an adjustment disorder with depressed mood and chronic post-traumatic stress disorder.

The Worker’s Compensation Judge, agreeing that the claimant’s psychological conditions were part of the work injuries and should be added to the Notice of Compensation Payable, determined that the IRE was invalid since the IRE physician did not address those conditions. The Worker’s Compensation Appeal Board, however, reversed. The Board held that the IRE physician evaluated the accepted injury as reflected in the Notice of Compensation Payable at the time of the evaluation. The Board pointed out that the claimant did not seek to amend the Notice of Compensation Payable to include additional injuries until six months after the IRE was performed. The Commonwealth Court affirmed the Board. In doing so, the Commonwealth Court emphasized that Section 306(a.2) required a determination of the degree of impairment “due to the compensable injury.” That compensable injury, according to the court, was the injury set forth in the Notice of Compensation Payable.

 The Pennsylvania Supreme Court reversed the Commonwealth Court. Relying on a novel and unique interpretation of Section 306(a.2) and the applicable impairment guidelines, the court said that the IRE physician must exercise professional judgment to render appropriate decisions concerning both causality and apportionment. According to the court’s review of the evidentiary record, the IRE physician failed to apply professional judgment to assess the psychological conditions identified by the claimant during the IRE examination and to determine whether the conditions were fairly attributable to the claimant’s compensable injury. In the court’s analysis, the IRE physician ignored a range of potential diagnoses and impairments. For this reason, the Supreme Court held that the IRE was invalid.

The court noted that “professional judgment” is explained in the AMA Guides as a physician’s use of “clinical knowledge, skills and abilities to arrive at a specific diagnosis; define the pathology and rate impairments based on the Guides’ criteria.” The court said that a physician evaluator should not completely disavow all responsibility from considering causality with respect to a given condition. Moreover, the court concluded that the IRE physician in Duffey was bound to take his guidance from Section 306(a.2) and the AMA Guides. Instead, he only followed the instructions that were provided to him by the employer.

A considerable portion of the Supreme Court’s opinion written by Chief Justice Saylor was used to address strong dissents written by Justices Baer and Wecht. The dissenting Justices strongly criticized the majority’s interpretation of Section 306(a.2) as requiring a duty on the part of the IRE physician to rate all of the claimant’s injuries, even those that were never accepted as compensable. According to Justice Baer, the court’s holding will “undermine the IRE process” by giving claimants an easy path to invalidating an IRE simply by claiming new physical or psychiatric conditions, even those that were not accepted by the employer. In the view of Justice Wecht, the court’s reading of Section 306(a.2) will “fundamentally alter the impairment rating process” and turn impairment rating physicians into “junior varsity Workers’ Compensation Judges.” In other words, Duffey will only serve to heighten the state of confusion that currently exists for IREs in Pennsylvania.

*Frank is a shareholder in our King of Prussia, Pennsylvania office. He can be reached at 610.354.8263 or


Defense Digest, Vol. 23, No. 2, June 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact

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Francis X. Wickersham
(610) 354-8263


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