                           [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
