Case Law Update | Duffey v. WCAB (Pa. Cmwlth June 26, 2015) | PA Work Injury

June 19, 2015

Question Presented: Whether IRE is invalid if it is subsequently determined during timely challenge to IRE that additional injuries occurred beyond those accepted as compensable.

 

Claimant sustained injuries to both hands while unknowingly picking up live wires.  NCP described injury as bilateral hands, electrical burn, stripping some electric wire.  After 104 weeks of TTD, Employer sought IRE, describing injuries as bilateral hands-nerve and joint pain.  Dr. Sicilia found 6% impairment and Employer sought change from total to partial, limiting Claimant to 500 weeks.  Claimant asserted IRE invalid because did not account for mental/emotional & PTSD.  Employer’s expert acknowledged mental issues but found Claimant fully recovered.  WCJ found for Claimant and restored him to TTD status.  WCAB reversed, finding Claimant did not seek to amend/add mental issues until 6 months after IRE, well after 60-day initial time to appeal.

 

CC: Affirm.  NCP is basis for IRE and IRE seeks snapshot, not time-dependent developments, esp. subsequent ones.  Harrison (CC 2013) not applicable here because that case stands only for WCJ ability to amend NCP during IRE proceedings, but does not speak to effect of same on already-performed IME, and certainly does not mean it is automatically invalid.  Wingrove (CC 2014) also held that expansion of injuries does not negate validity of a previous IRE, which becomes “fixed and beyond challenge” upon 60 days.  Here, Claimant timely challenged IRE but cannot retroactively invalidate because injuries found to be work-related arose after the IRE was performed.  If Dr. Sicilia addressed only one hand instead of both, that would have basis for invalidation.  But Dr. Sicilia was not tasked with considering mental issues and IRE not invalid for failure to do so.  Claimant originally diagnosed with mental issues in August 2010, almost a year before IRE, but did not seek to amend/expand so that IRE could include these.  This verges on gamesmanship of the IRE process: Claimant’s position would effectively strip Employer of its only opportunity to obtain self-executing change in status.

 

Colins dissents w/o opinion.

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