PA Workers Compensation Judge Must Consider All Conditions “Due To” A Work Injury In IRE

One of the bigger “victories” by the PA workers’ compensation insurance industry against the injured workers in Pennsylvania is the Impairment Rating Evaluation (IRE) process. Under this process, after an injured worker has received 104 weeks of temporary total disability benefits, the insurance company can initiate an IRE, which can limit the period of time an injured worker can receive workers’ compensation benefits. The IRE process is covered in great detail on our website.

If the examining physician finds that the injured worker has less than a 35% “whole body impairment” due to the work injury, the benefits can shift from “total” in character to “partial.” This does not change the amount of the benefits the injured worker receives, but it limits the duration for which the injured worker can receive those benefits.

One of the questions in the IRE process is which conditions or diagnoses need to be considered by the IRE physician in calculating the “whole body impairment.” There was a school of thought, championed by the insurance industry, that the IRE could only consider those conditions or diagnoses actually accepted as work-related. Thankfully, the Commonwealth Court of Pennsylvania has provided some clarification, establishing that the IRE physician must consider all conditions or diagnoses “due to” the work injury, whether accepted or not.

In City of Philadelphia v. Turner (Workers’ Compensation Appeal Board), the injured worker (claimant), was working as a corrections officer in 2006 when he hurt his left knee, left hip, both feet and his back. A Petition for Termination in 2021 resulted in a Workers’ Compensation Judge (WCJ) finding that claimant had fully recovered from the injuries to the knee, hip and feet, leaving the back as the only continuing aspect of the work injury.

An IRE was conducted on December 15, 2021, finding a 31% whole body impairment rating. In calculating this rating, the physician considered only the back condition, since it was the physician’s understanding that he could not consider conditions already found fully recovered, or conditions which could have been related but were never accepted (depression, anxiety, urinary incontinence and weight gain).

The workers’ compensation insurance company filed a Petition to Modify benefits from total to partial based on this IRE, since the whole body impairment was less than 35%. The insurance carrier took the deposition of the IRE physician and offered the IRE report of that physician. No other evidence was offered by either side. The WCJ denied the Petition to Modify, finding the opinions of the IRE physician neither competent nor credible. This was because the IRE physician did not consider the conditions or diagnoses he considered “due to” the work injury, limiting his calculation to the conditions currently “accepted.”

On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ. Essentially, the WCAB found that determinations of credibility and the weighing of evidence are solely within the purview of the WCJ and should not be disturbed upon appeal.

The Commonwealth Court of Pennsylvania then affirmed upon further appeal. The Court carefully analyzed existing case law, which shows that an IRE physician has to consider more than simply the currently accepted work injury. Instead, the IRE physician “must exercise independent professional judgment to make a whole-body assessment of the degree of impairment due to the compensable injury . . . “ The mere fact conditions or diagnoses are not expressly accepted as part of the work injury does not relieve the IRE physician from considering those conditions or diagnoses, if they are “due to” the work injury. As such, the WCJ’s findings rejecting the opinions of the IRE physician were not arbitrary or capricious.