Duffey, M., Aplt. v. WCAB (Trola-Dyne, Inc.) ( 2017 )

[J-90-2016] [MO: Saylor, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
MICHAEL C. DUFFEY, : No. 4 MAP 2016
:
Appellant : Appeal from the Order of the
: Commonwealth Court at No. 1840 CD
: 2014 dated June 26, 2015 Affirming the
v. : decision of the Workers' Compensation
: Appeal Board at Nos. A13-0229 and
: A13-1158 dated September 16, 2014.
WORKERS' COMPENSATION APPEAL :
BOARD (TROLA-DYNE, INC.), : ARGUED: September 14, 2016
:
Appellees :
DISSENTING OPINION
JUSTICE BAER DECIDED: January 19, 2017
As noted by the majority, Michael Duffey, Claimant herein, did not focus his
argument on the issue addressed by the majority, namely, whether Bruce E. Sicilia,
M.D., “the Physician-Evaluator” conducting the IRE, was obligated to evaluate
Claimant’s PTSD/adjustment disorder as an impairment arising from the compensable
injury set forth in the NCP. Majority Opinion at 3 n.5. Rather, “it was Claimant’s
position that the Physician-Evaluator had failed to rate the full range of work-related
injuries, since Claimant suffered from adjustment disorder with depressed mood and
chronic post-traumatic stress disorder as a result of his work injury.” Id. at 3.
Nevertheless, the majority finds that the issue argued by Claimant sufficiently subsumes
the analysis conducted by the majority. Specifically, the majority holds that a physician
must consider the causal relationship between the compensable injury and any
impairment articulated by a claimant at the IRE, and fully evaluate those impairments as
part of the IRE examination. The majority’s departure from the issue as expressed by
Claimant is problematic for several reasons.
First, Claimant has never posited that his PTSD/adjustment disorder derived in
any way from his accepted compensable work-related injury set forth in the NCP, i.e.,
his hand injury. To the contrary, it has been Claimant’s position throughout all of the
prior proceedings that the PTSD and adjustment disorder are independent injuries that,
like his hand injury, derived directly from being electrocuted at work. Indeed, it seems
obvious that the PTSD and adjustment disorder do not derive from claimant’s hand
injury but, if compensable, are a result of being electrocuted. The majority takes the
view that, regardless, the Physician-Evaluator conducting the IRE must independently
evaluate any mentioned impairment a claimant makes at the examination and consider
the causal relationship between the impairment and the compensable injury in the NCP.
Majority Opinion at 9. Thus, even in a case like this, where the Claimant himself does
not purport that the impairment he is expressing, PTSD/adjustment disorder, is related
to his accepted hand injury, if the physician fails to evaluate those conditions, then the
IRE is to be disregarded by the WCJ. Id. at 11.
Second, by addressing the issue that was raised by Claimant in a way that was
not fully briefed and argued by the parties, the majority has altered the structure of how
IRE proceedings will take place without input regarding the full ramifications that will
result from such alteration. In my mind, the Court’s holding will undermine the IRE
process in general and permit claimants easily to invalidate otherwise fair IRE
proceedings by simply expressing new physical and/or psychological conditions
unknown to the employer, even ones that clearly were not derived from the injury set
forth in the NCP. The claimant’s mere expression will trigger an obligation on the part of
the physician to evaluate these conditions, regardless of the injuries accepted as
[J-90-2016] [MO: Saylor, C.J.] - 2
compensable, or risk having the IRE declared a nullity.1 This obligation will inject
uncertainty and inefficiency into the IRE process, which is contrary to the goals of the
legislature in enacting this legislation.
Specifically, pursuant to Section 306(a.2)(1) of the Workers’ Compensation Act,
77 P.S. §511.2(1), when an employee has received total disability compensation for 104
weeks, unless otherwise agreed to, the employee will be required to submit to a medical
examination (the IRE) for the purpose of determining the degree of impairment due to
the compensable injury, if any. A duly rendered impairment rating is automatically
effective if the employer/insurer requested the examination within 60 days after the
expiration of the 104–week period prescribed by the statute. If such a determination
results in an impairment rating that is equal to or greater than fifty percent impairment,
then the employee will be presumed to be totally disabled and will continue to receive
total disability compensation benefits. However, if such determination results in an
impairment rating of less than fifty percent, then the employee will then receive partial
disability benefits after proper notice.
An employer has only one opportunity under the Act to utilize the self-executing
change; if employer requests an IRE beyond that short window, then employer must file
a modification petition and litigate the requested change in disability status. Gardner v.
Workers’ Compensation Appeal Board (Genesis Health Ventures), 888 A.2d 758, 767–
68 (Pa. 2005). The IRE procedure “was part of the General Assembly’s 1996 reform
1
The majority responds to Justice Wecht’s similar observation in dissent, that
physician evaluators must now consider any condition hinted at by a claimant by noting
that this ignores the statutory causation requirement that the impairment be “due to” the
compensable injury. Majority Opinion at 17. It seems to me, however, that the majority
has ignored this very requirement where, as here, there is no allegation that the
articulated impairment is “due to” the compensable injury; rather, Claimant alleges the
impairment is due to the work incident.
[J-90-2016] [MO: Saylor, C.J.] - 3
effort intended to reduce rising Workers’ Compensation costs and restore efficiency to
the Workers' Compensation system.” Hilyer v. Workers’ Compensation Appeal Board
(Joseph T. Pastrill, Jr. Logging), 847 A.2d 232, 235 (Pa. Cmwlth. Ct. 2004).
Here, Employer requested the IRE within the 60 day window provided by
subsection 306(a.2), which authorizes employers to issue the self-executing change of
disability resulting from an IRE that establishes an impairment rating of less than fifty
percent. 77 P.S. § 511.2(1), (2). Employer specified that the Physician-Evaluator
should determine the percentage of impairment from Claimant’s hand injury, the only
injury arising from the work incident accepted and set forth in the NCP. Although
Claimant indicated at the time of the IRE that he suffered impairments from other work-
related injuries arising from the work incident, I believe the physician properly limited his
evaluation to the impairments associated with the compensable injury set forth in the
NCP. As said, to hold otherwise is to subject the IRE process to chicanery having the
potential to render it useless. Thus, I dissent and would affirm the Commonwealth
Court’s decision.
[J-90-2016] [MO: Saylor, C.J.] - 4