[J-60-2023]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


 VINCENT SICILIA                                  :   No. 14 MAP 2023
                                                  :
                                                  :   Appeal from the Order of the
               v.                                 :   Commonwealth Court dated June 7,
                                                  :   2022, at No. 747 CD 2021
                                                  :   Reversing the Order of the Workers'
 API ROOFERS ADVANTAGE PROGRAM                    :   Compensation Appeal Board dated
 (WORKERS' COMPENSATION APPEAL                    :   June 25, 2021, and Remanding at
 BOARD)                                           :   No. A20-0734
                                                  :
                                                  :   ARGUED: October 18, 2023
 APPEAL OF: API ROOFERS ADVANTAGE                 :
 PROGRAM                                          :


                         OPINION IN SUPPORT OF REVERSAL

JUSTICE BROBSON                                                 DECIDED: July 17, 2024
       Section 306(a.3) of the Workers’ Compensation Act (Act)1 provides, in relevant

part, that, “[w]hen an employe has received total disability compensation . . . for a period

of [104] weeks . . . , the employe shall be required to submit to a medical examination

which shall be requested by the insurer . . . to determine the degree of impairment due to

the compensable injury, if any.” 77 P.S. § 511.3(1) (emphasis added). If, following that

medical examination—which is also known as an impairment rating evaluation (IRE)—an

IRE physician-evaluator determines that the claimant has an impairment rating that is less

than 35%, the claimant’s indemnity benefits will be modified from total disability to partial

disability. See Section 306(a.3)(2) of the Act, 77 P.S. § 511.3(2). The modification from

total disability to partial disability does not affect the amount of the claimant’s indemnity



1 Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 24, 2018,

P.L. 714, 77 P.S. § 511.3.
benefits but, instead, limits the claimant’s receipt of indemnity benefits to a 500-week

period of partial disability. 77 P.S. § 511.3(3).

       In Duffey v. Workers’ Compensation Appeal Board (Trola-Dyne, Inc.),

 (Pa. 2017), this Court held that an IRE physician-evaluator, who calculated

the claimant’s impairment rating based solely on the injuries set forth in the notice of

compensation payable (NCP) and did not consider whether certain psychological

conditions reported by the claimant as having resulted from the work-related injury “were

fairly attributable to [the c]laimant’s compensable injury,” failed to satisfy his obligation

under the prior version of Section 306(a.3) 2 to determine the degree of the claimant’s

2 Prior to the enactment of Section 306(a.3) of the Act, the modification of a claimant’s

benefits from total disability to partial disability based upon the results of an IRE was
addressed by Section 306(a.2) of the Act. Act of June 2, 1915, P.L. 736, as amended,
added by the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2 (repealed 2018).
Section 306(a.2) provided, in relevant part, that an IRE physician-evaluator was required
to determine a claimant’s whole-person impairment rating using the “most recent edition”
of the American Medical Association’s “Guides to the Evaluation of Permanent
Impairment” (AMA Guides). In Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 

 (Pa. Cmwlth. 2015) (Protz I), however, the
Commonwealth Court declared Section 306(a.2) to be “an unconstitutional delegation of
legislative authority insofar as it proactively approved versions of the AMA Guides beyond
the Fourth Edition without review.” Protz I, 

. Based on this conclusion,
the Commonwealth Court vacated the Workers’ Compensation Appeal Board’s (Board)
decision “with respect to [the e]mployer’s modification petition and remand[ed the] matter
to the Board with instruction to remand to the [workers’ compensation judge (WCJ)] to
apply the Fourth Edition of the AMA Guides.” 

 This Court, in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 

 (Pa. 2017)
(Protz II), agreed with the Commonwealth Court that Section 306(a.2) violated Article II,
Section 1 of the Pennsylvania Constitution by delegating the General Assembly’s
lawmaking power to the American Medical Association because the American Medical
Association would have been free to revise the standards for determining a claimant’s
whole-person impairment rating at any time with unfettered discretion. Protz II, 

. This Court disagreed, however, with the Commonwealth Court’s remedy,
concluding that, as a result of the unconstitutional delegation, the entirety of
Section 306(a.2) had to be stricken. 

. In so doing, this Court essentially struck
the entire IRE process from the Act. Act of June 2, 1915, P.L. 736, as amended, 77 P.S.
§§ 1-1041.4, 2501-2710. In response thereto, the General Assembly repealed
Section 306(a.2) and reestablished the IRE process—in a manner intended to cure the
(continued…)

                                       [J-60-2023] - 2
impairment “due to the compensable injury,” thereby rendering the IRE invalid. Duffey,

. Stated another way, this Court held that, when performing an IRE,

IRE “physician-[evaluators] must exercise independent professional judgment to make a

whole-body assessment of the degree of impairment due to the compensable injury . . . ,

which discernment cannot be withheld on the basis that the [IRE] physician-[evaluator]

believes the undertaking is a more limited one.” 

 (internal citation and quotation

marks omitted).

       In this discretionary appeal, we consider whether, in the matter now before us, the

Commonwealth Court impermissibly expanded this Court’s holding in Duffey so as to

usurp the WCJ’s authority to determine the nature and extent of a compensable injury

and/or whether the Commonwealth Court substituted its assessment of the credibility of

the witnesses for that of the factfinder when it reversed the Board’s decision and

remanded the matter for the reinstatement of Vincent Sicilia’s (Claimant) total disability

benefits.   For the reasons explained more fully below, I would conclude that the

Commonwealth Court both impermissibly expanded this Court’s holding in Duffey and

substituted its assessment of credibility for that of the factfinder. Accordingly, I would

reverse the Commonwealth Court’s order.




constitutional deficiency identified in Protz I and Protz II—in Section 306(a.3). Of further
note, Section 306(a.3) lowered the threshold percentage of impairment from less
than 50% to less than 35%. See 77 P.S. § 511.3(2).
      This Court’s decision in Protz II and the General Assembly’s subsequent
repealment of Section 306(a.2) of the Act and enactment of Section 306(a.3) of the Act
have no effect on this Court’s decision in Duffey or my analysis. The statutory language
from Section 306(a.2) that this Court interpreted in Duffey—i.e., “to determine the degree
of impairment due to the compensable injury, if any”—remains the same in
Section 306(a.3).


                                      [J-60-2023] - 3
                                    I. BACKGROUND

       The origin of this matter dates back almost 25 years. On August 25, 1999, while

in the course and scope of his employment with API Roofers Advantage Program

(Employer), Claimant sustained injuries to his back and left knee when the ladder that he

was using to descend from a building’s roof collapsed. As the ladder collapsed, Claimant

grabbed on to a wall, twisted his body, and struck his left knee. A coworker then grabbed

Claimant and pulled him back onto the roof. Employer accepted liability for a lumbar

strain and left knee contusion pursuant to a notice of temporary compensation payable

(NTCP), which subsequently converted to an NCP by operation of law.

       Sometime thereafter, Claimant filed a review petition, seeking to amend the

description of his work-related injury to include various physical and psychological

injuries. During the proceedings on that petition, the parties stipulated that, in addition to

the accepted lumbar strain and left knee contusion, Claimant also sustained chronic pain

syndrome and chronic adjustment disorder with anxiety and depression as a result of the

August 25, 1999 work-related incident. The parties also presented competing medical

evidence relative to the work relatedness of the physical injuries to Claimant’s neck,

cervical spine, and upper extremities. By decision and order dated January 28, 2003, a

WCJ denied and dismissed Claimant’s review petition.              Based on his credibility

determinations, the WCJ concluded that Claimant failed to meet his burden of proving

that he sustained any physical injuries as a result of the August 25, 1999 work-related

incident other than those set forth in the NTCP/NCP. The WCJ did, however, approve

the parties’ stipulation relative to the work-relatedness of the alleged psychological

injuries, thereby amending the description of Claimant’s work-related injury to include

chronic pain syndrome and chronic adjustment disorder with anxiety and depression.




                                       [J-60-2023] - 4
      Since that time, the parties have litigated various petitions, throughout which the

description of Claimant’s work-related injury has remained the same and has not been

further amended. Specifically, in 2008, Claimant filed a penalty petition, wherein he

alleged that Employer violated the Act by failing to pay the medical bills incurred in

connection with multiple surgeries performed on Claimant’s lumbar spine in

September 2007. In 2011, following some rather protracted litigation due to an appeal

and subsequent remand, a WCJ determined that Claimant met his burden of establishing

that those surgeries were related to his work-related injury. Given, however, that the

medical bills and accompanying medical records submitted to Employer for payment

showed a principal diagnosis of spondylolisthesis, which was not part of the accepted

work-related injury, the WCJ denied Claimant’s penalty petition. The Board affirmed the

WCJ’s decision and, in doing so, specifically emphasized that “[t]he WCJ did not amend

the description of injury; rather, he determined Claimant’s back surger[ies] to be causally

related to the work[-related] injury.” (Reproduced Record (R.R.) at 58a n.1.) In 2014,

Claimant filed another penalty petition, alleging that Employer violated the Act by failing

to pay certain medical bills. During the proceedings on that petition, the parties entered

into a stipulation, agreeing that Employer had paid the subject medical bills and that

Employer was not subject to penalties. A WCJ approved the parties’ stipulation and

dismissed the penalty petition as moot. Relevantly, the parties’ stipulation described

Claimant’s work-related injury as a lumbar strain, a left knee contusion, chronic pain

syndrome, and chronic adjustment disorder with anxiety and depression.

      Thereafter, on October 28, 2019, Employer filed a modification petition—the

petition at issue here—seeking to modify Claimant’s indemnity benefits from total

disability to partial disability based upon the results of an IRE performed by Daisy A.

Rodriguez, M.D., on August 1, 2019. At a hearing before the WCJ, Employer presented




                                     [J-60-2023] - 5
the deposition testimony of Dr. Rodriguez, as well as Dr. Rodriguez’s underlying IRE

report and IRE addendum report. Claimant did not testify on his own behalf, nor did he

present medical testimony or any other substantive evidence. Based upon the accepted

work-related injury—i.e., a lumbar strain, a left knee contusion, chronic pain syndrome,

and chronic adjustment disorder with anxiety and depression—and according to the Sixth

Edition of the AMA Guides, Dr. Rodriguez determined that Claimant had reached

maximum medical improvement as of September 27, 2017, and had a whole-person

impairment rating of 23% or 25%. Dr. Rodriguez explained that the 23% whole-person

impairment rating did not give separate weight to Claimant’s chronic pain syndrome

diagnosis because the AMA Guides instruct an IRE physician-evaluator not to do so when

there is a separate diagnosis that encompasses the pain generator. Dr. Rodriguez further

explained that Claimant suffers from low back pain, left knee pain, and emotional and

mental distress, all of which encompass Claimant’s chronic pain syndrome.              Dr.

Rodriguez, nevertheless, indicated that, if she were to ignore the AMA Guides and give

Claimant’s chronic pain syndrome diagnosis separate weight—given that chronic pain

syndrome is a separately identified diagnosis in the description of Claimant’s work-related

injury—Claimant would have a whole-person impairment rating of 25%.

      Although Dr. Rodriguez specifically indicated in her IRE report that she had

calculated Claimant’s whole-person impairment rating based solely upon the accepted

work-related injury, Dr. Rodriguez identified additional diagnoses that she believed were

causally related to the August 25, 1999 work-related incident, namely a lumbar disc

protrusion or spondylolisthesis with lumbar radiculopathy. (See R.R. at 80a (“Given the

constraints stipulated by the . . . Act, I am compelled to provide my rating only on the

diagnoses currently accepted via [NTCP], NCP, mutual stipulation, and/or [prior]

decision.”).) At Employer’s request, Dr. Rodriguez prepared the IRE addendum report,




                                     [J-60-2023] - 6
indicating that, if she were to determine Claimant’s whole-person impairment rating based

not only upon the accepted work-related injury but also those additional diagnoses that

she believed were attributable to the August 25, 1999 work-related incident, Claimant

would have a whole-person impairment rating of 43% or 45%, depending on whether she

separately weighted/accounted for Claimant’s chronic pain syndrome diagnosis. 3 Dr.

Rodriguez explained that her consideration of the more severe diagnosis to Claimant’s

lumbar spine—i.e., the lumbar disc protrusion or spondylolisthesis with lumbar

radiculopathy rather than the lumbar strain—resulted in a higher whole-person

impairment rating. Importantly, the difference between the 25% and 45% whole-person

impairment ratings is significant because the former is below the 35% threshold

necessary to modify Claimant’s indemnity benefits from total disability to partial disability,

whereas the latter is above the threshold and would not result in such a modification. See

Section 306(a.3)(2) of the Act, 77 P.S. § 511.3(2) (providing that, if impairment rating “is

equal to or greater than [35%] impairment under the [AMA Guides], the employe shall be

presumed to be totally disabled and shall continue to receive total disability compensation

benefits,” but, if impairment rating is “less than [35%] impairment under the [AMA Guides],

the employe shall then receive partial disability benefits”).

       By decision and order dated August 24, 2020, the WCJ granted Employer’s

modification petition. In so doing, the WCJ found Dr. Rodriguez’s testimony that Claimant

had reached maximum medical improvement and, based on the accepted work-related

injury, had a whole-person impairment rating of 25% to be credible. The WCJ also found,


3 The 2% difference in Claimant’s whole-person impairment rating is not relevant to my

analysis today. For ease of discussion, throughout the remainder of this opinion, I will
refer to the whole-person impairment ratings that separately account for Claimant’s
chronic pain syndrome—i.e., 25% or 45%, depending on whether the additional
diagnoses that Dr. Rodriguez attributed to the August 25, 1999 work-related incident are
included.


                                       [J-60-2023] - 7
however, that Dr. Rodriguez’s testimony regarding the additional diagnoses that she

attributed to the August 25, 1999 work-related incident were not credible. The WCJ

explained that Claimant’s work-related injury had been described in numerous prior

decisions and that such description had never been amended or expanded to include

those additional diagnoses. Accordingly, the WCJ concluded that Employer had met its

burden of proving that Claimant had received over 104 weeks of temporary total disability

benefits, had reached maximum medical improvement, and had a whole-person

impairment rating less than 35%. The WCJ, therefore, ordered that Claimant’s indemnity

benefits be modified from total disability to partial disability as of August 1, 2019.

       Claimant appealed the WCJ’s decision to the Board. Relying on Duffey, Claimant

argued to the Board that the WCJ erred by failing to consider the additional diagnoses

that Dr. Rodriguez identified in her IRE report and attributed to the August 25, 1999

work-related incident but that had not been formally added to the description of the

accepted work-related injury. In support, Claimant pointed out that he underwent multiple

surgeries to his lumbar spine to treat those additional diagnoses and a WCJ had

previously determined that Employer was responsible for the payment of the medical bills

incurred in connection with those surgeries.

       The Board, however, disagreed with Claimant’s position, noting that the WCJ

found Dr. Rodriguez’s testimony relative to the additional diagnoses and their causal

relationship to the August 25, 1999 work-related incident to be not credible, which, the

Board explained, was wholly within the WCJ’s purview as factfinder.               The Board

emphasized that, pursuant to Duffey, an IRE physician-evaluator “performing an IRE must

apply professional judgment to assess conditions that could be fairly attributable to a

compensable injury and failure to exercise that judgment may render the IRE invalid.”

(R.R. at 186.) The Board explained that, here, Dr. Rodriguez applied her professional




                                       [J-60-2023] - 8
judgment, consistent with Duffey, because, in her initial IRE report, Dr. Rodriguez

recognized that Claimant’s lumbar spine condition could have included a lumbar disc

protrusion or spondylolisthesis with lumbar radiculopathy but differentiated those

diagnoses from the accepted work-related injury. The Board further explained that, given

the WCJ’s conclusion that the description of Claimant’s work-related injury did not include

any diagnoses other than those previously accepted, stipulated, and/or adjudicated, Dr.

Rodriguez’s determination that Claimant had a whole-person impairment rating of 25%

was a valid assessment. For these reasons, the Board concluded that the WCJ did not

err by modifying Claimant’s indemnity benefits from total disability to partial disability as

of August 1, 2019, and affirmed the WCJ’s decision.          Claimant then petitioned the

Commonwealth Court for review of the Board’s order.

       In a divided, published opinion, a three-judge panel of the Commonwealth Court

reversed the Board’s order and remanded the matter for the reinstatement of Claimant’s

total disability benefits. Sicilia v. API Roofers Advantage Program (Workers’ Comp.

Appeal Bd.), 

 (Pa. Cmwlth. 2022). Before the Commonwealth Court,

Claimant argued that the Board erred by affirming the WCJ’s modification of his indemnity

benefits from total disability to partial disability because, pursuant to Duffey, injury

descriptions from prior workers’ compensation decisions do not dictate what may be

considered during the IRE process. 

.

       The Commonwealth Court majority began its analysis by observing that the

Board’s decision essentially “boil[s] down to an assertion that the decision of a WCJ

describing the injuries controls the IRE process.” 

. The Commonwealth Court

reasoned, however, that, quite “[t]o the contrary, Section 306(a.3)(1) [of the Act]—as

elaborated in [Duffey]—places a great deal of discretion in the [IRE] physician-evaluator

to determine what diagnoses are ‘due to’ a work-related injury, outside the ordinary




                                      [J-60-2023] - 9
modification process.” 

 Noting that a WCJ may, upon petition, amend a work-related

injury description at any time but also acknowledging that no such petition or request for

amendment had been filed/made in this case, the Commonwealth Court, nevertheless,

emphasized that it was “disingenuous to assert that an injury description in one WCJ’s

decision, or a string of such decisions, binds subsequent WCJs later in the history of a

claim.” 

 at 1218 n.6. The Commonwealth Court further noted that, “[e]ven when an

injury description is not formally amended, a diagnosis may become an accepted injury if

a WCJ finds it was caused or aggravated by the work injury.” 

 (citing Westmoreland

Cnty. v. Workers’ Comp. Appeal Bd. (Fuller), 

 (Pa. Cmwlth. 2008)).

      With these principles in mind, the Commonwealth Court majority considered

whether the modification of Claimant’s indemnity benefits was appropriate under the

circumstances presented here. In so doing, the Commonwealth Court reasoned that Dr.

Rodriguez’s IRE report and testimony indicated that she felt that her whole-person

impairment rating “was constrained by the currently accepted diagnoses,” which the

Commonwealth Court suggested was based upon a “misapprehen[sion of] her

responsibility as a[n IRE] physician-evaluator in her initial calculation of Claimant’s

whole[-]person impairment rating.” Id. at 1218. The Commonwealth Court explained that,

while the WCJ, as the factfinder, had the authority to make credibility determinations,

“[t]he WCJ’s reasoning for rejecting Dr. Rodriguez’s testimony concerning the additional

diagnoses, and the higher [impairment] rating resulting from such inclusion, was not, in

fact, a credibility determination based on evaluation of the evidence, but rather[,] a

misapprehension of the discretion accorded [to] an IRE physician-evaluator.” Id. at 1219.

The Commonwealth Court further explained that “[t]he only reason [the WCJ] proffered

for discrediting the additional diagnoses was that [such diagnoses] had not been

previously found by other WCJs.” Id. The Commonwealth Court, therefore, concluded




                                    [J-60-2023] - 10
that, “[s]imply put, the WCJ erred as a matter of law in constraining the IRE review solely

to the earlier accepted descriptions of Claimant’s work injuries.” Id.

       In a dissenting opinion, President Judge Emerita Leavitt faulted the majority for

“reject[ing] two express credibility determinations of the WCJ”—i.e., that Dr. Rodriguez’s

testimony was credible insofar as Dr. Rodriguez determined that Claimant had a

whole-person impairment rating of 25% and that Dr. Rodriguez’s testimony was not

credible to the extent that Dr. Rodriguez determined that Claimant’s work-related injury

included the additional diagnoses that she identified in her IRE report and attributed to

the August 25, 1999 work-related incident. Id. at 1219-20 (Leavitt, J., dissenting). Judge

Leavitt explained that the WCJ discredited Dr. Rodriguez’s testimony relative to the

additional diagnoses, not because of a mistaken belief that Dr. Rodriguez was not

permitted to consider additional diagnoses related to Claimant’s work-related injury, but

because the WCJ simply did not believe Dr. Rodriguez’s testimony that the additional

diagnoses were attributable to the August 25, 1999 work-related incident. Id. In that

regard, Judge Leavitt highlighted that the WCJ reviewed the record, including Dr.

Rodriguez’s testimony, and credited only the portion of Dr. Rodriguez’s testimony that

supported a finding that Claimant had a whole-person impairment rating of 25%.

Id. at 1220. Judge Leavitt observed that, as a result of that credibility determination, the

record contains “no credited evidence to support a finding that Claimant ha[d] a

whole-body impairment [rating] greater than 35%” that would have entitled him to continue

to receive total disability benefits. Id. at 1221; see also Section 306(a.3)(2) of the Act,

77 P.S. § 511.3(2). For these reasons, Judge Leavitt would have affirmed the Board’s




                                     [J-60-2023] - 11
order, which, according to her, followed Duffey. 4 Sicilia, 277 A.3d at 1221 (Leavitt, J.,

dissenting).

                                        II. ISSUES

       This Court granted discretionary review to consider the following issues, as stated

by Employer:
       (1) Did the Commonwealth Court impermissibly expand the holdings in
       Duffey . . . as to usurp the authority of the [WCJ] to determine the nature
       and extent of the compensable injury?
       (2) Did the Commonwealth Court err in reversing the . . . Board by
       substituting [its] assessment of the credible testimony for that of the
       fact[]finder?
Sicilia v. API Roofers Advantage Program (Workers’ Comp. Appeal Bd.), 

(Pa. 2023) (per curiam) (some alterations in original). “This Court’s standard of review in

workers’ compensation appeals is settled: we will affirm the adjudication below unless

we find that an error of law was committed, that constitutional rights were violated, that a

practice or procedure of a Commonwealth agency was not followed[,] or that any

necessary finding of fact is not supported by substantial evidence of record.” Colpetzer

v. Workers’ Comp. Appeal Bd. (Standard Steel), 

 (Pa. 2005) (citing

2 Pa. C.S. § 704).

                               III. PARTIES’ ARGUMENTS

       Employer argues that a WCJ unquestionably has the authority to set the nature

and extent of the compensable injury in workers’ compensation matters and that the

Commonwealth Court erred by usurping that authority in this case. Emphasizing how

4 Judge Leavitt, stressing that “the adjudicated injury must be static before an IRE can be

done,” further believed that Duffey should be reconsidered in light of the facts of this case.
Sicilia, 277 A.3d at 1221 (Leavitt, J., dissenting). In Judge Leavitt’s view, Duffey “placed
additional requirements on the [IRE]” process and “muddled the law in this area” by
“tak[ing] the IRE into issues of liability and causation for a work injury when the sole
purpose of an IRE is to determine the claimant’s disability status after maximum medical
improvement from the adjudicated work-related injury.” Id. at 1220, 1221.


                                      [J-60-2023] - 12
critically important it is to have the description of the compensable injury definitively

established for the workers’ compensation system to function properly, Employer claims

that Section 413(a) of the Act 5 sets forth the mechanism under which a WCJ may amend

the description of a work-related injury. According to Employer, Section 413(a) allows a

WCJ “[t]o correct an injury description that was inaccurate at the time the . . . NCP was

issued” during the pendency of any petition, but, “to expand, retract[,] or change the scope

of the [work-related] injury” or “to add consequential conditions that did not exist at the

time the NCP was issued,” a WCJ must have a pending review petition before her.

(Employer’s Br. at 19-20.)     Employer maintains, however, that a case’s procedural

posture can impact a WCJ’s ability to change an injury description because “the doctrine

of technical res judicata prevents re-litigation of claims and issues in subsequent litigation

that were or could have been litigated previously.” (Id. at 20 (relying upon Weney v.

Workers’ Comp. Appeal Bd. (Mac Sprinkler Sys., Inc.), 

 (Pa. Cmwlth. 2008),

appeal denied, 

 (Pa. 2009)).) Employer contends that, here, “the nature and

extent of the compensable injury attributable to Claimant’s unfortunate fall . . . has been

set through the adjudicatory process over many years.” (Id. at 21.)

       Employer highlights that, pursuant to Section 306(a.3)(1) of the Act, an impairment

rating must be tethered to the “compensable injury,” as an IRE physician-evaluator is


5 77 P.S. §§ 771-772.   Section 413(a) of the Act provides, in relevant part:
              A [WCJ] may, at any time, review and modify or set aside a[n NCP] and an
       original or supplemental agreement or upon petition filed by either party with the
       department, or in the course of the proceedings under any petition pending before
       such [WCJ], if it be proved that such [NCP] or agreement was in any material
       respect incorrect.
             A [WCJ] designated by the department may, at any time, modify, reinstate,
       suspend, or terminate a[n NCP] . . . upon petition filed by either party with the
       department, upon proof that the disability of an injured employe has increased,
       decreased, recurred, or has temporarily or finally ceased . . . .


                                      [J-60-2023] - 13
charged with the responsibility to determine “the degree of impairment due to the

compensable injury, if any.”     (Id. at 24.)   Adding that Section 306(a.3) “specifically

provides [that] ‘impairment’ shall mean the percentage of permanent impairment resulting

from the ‘compensable injury,’” Employer contends that “[t]he [impairment] rating is not to

include pre[]existing conditions or non-work related issues.” (Id.) Employer submits that

“the proper emphasis must be on what anatomic or functional abnormality stems from the

‘compensable injury,’” as previously described “either on the Bureau acceptance

document or through the adjudicatory process.” (Id. at 24-25.) Employer suggests that,

if an IRE physician-evaluator “is left on her own to determine what injury to rate,” the IRE

process would “lose[] its meaning,” because the IRE physician-evaluator would have

unfettered discretion to include “conditions that have been specifically excluded from the

compensable injury;” for example, the IRE physician-evaluator “might include a

preexisting condition or a condition already found not to be work[-]related if she believes

them to be related.” (Id. at 25.) In Employer’s view, such unfettered discretion would be

in direct contravention to the “explicit statutory directive” and the role of WCJs in the

workers’ compensation process, would thwart the purpose of the IRE process—i.e., “to

provide, where appropriate, a limit on the number of remaining weeks of compensation

benefits”—and would encourage parties to shop for “friendly” IRE physician-evaluators.

(Id. at 25-26.)

       Employer, therefore, urges this Court to restore the focus of the IRE inquiry to

Section 306(a.3)’s use of the phrase “compensable injury” and away from its use of the

phrase “due to.” Employer maintains that doing so would be entirely consistent with a

plain reading of the statutory provision and would place appropriate limits on the IRE

physician-evaluator—i.e., “[t]he [IRE] physician-evaluator [would] still [be] able to exercise

discretion to rate the injury as permitted by the [AMA] Guides, but the discretion to be




                                      [J-60-2023] - 14
exercised [would be] limited to the variables presented by the established ‘compensable

injury.’” (Id. at 26.) Employer explains that, in this case, the Commonwealth Court

“focused on the ‘due to’ language as authorization to [Dr. Rodriguez] to exercise

unfettered discretion in the [impairment] rating process.” (Id. at 27.) Employer points out

that, while this Court’s decision in Duffey may have provided the Commonwealth Court

with the necessary rationale to reverse the Board’s order, in Duffey, it was still the WCJ—

not the IRE physician-evaluator—that ultimately expanded the scope of the compensable

injury in connection with a review petition filed by the claimant pursuant to Section 403(a)

of the Act. Employer maintains that, here, the Commonwealth Court utilized Duffey to

improperly negate the WCJ’s authority and permit Dr. Rodriguez to define the

compensable injury, thereby expanding “the Duffey . . . premise beyond [its] facts.”

(Id. at 29.) Employer adds that, by “rating [Claimant’s] impairment due to [what] she

thought . . . the ‘compensable injury’ should be” rather than “rating the impairment due to

the compensable injury,” Dr. Rodriguez “substituted her belief of what the compensable

injury was for that of the WCJ.” (Id.)

       Employer further emphasizes that an IRE physician-evaluator “is not in a position

to weigh competing evidence or consider the procedural posture in which an allegation of

expanded injuries arises;” rather, an IRE physician-evaluator is in a position to determine

the degree of impairment “within the framework of the compensable injury,” as set by the

WCJ. (Id. at 29-30.) Employer notes that, as a practical matter, while, in this case, Dr.

Rodriguez’s usurpation of the WCJ’s authority benefitted Claimant because it precluded

the conversion of his indemnity benefits from total disability to partial disability, “it is not

difficult to imagine a situation” where the IRE physician-evaluator exercises her unfettered

discretion in manner detrimental to a claimant—i.e., “where the IRE physician[-evaluator]

rejects as not related injuries that have been adjudicated as compensable.” (Id. at 31.)




                                       [J-60-2023] - 15
Employer    further   suggests    that     the   Act   never   contemplated   that   an   IRE

physician-evaluator would possess the power to usurp the WCJ’s authority, as Dr.

Rodriguez did here. Echoing the concerns identified by the dissents in both Duffey and

the decision below and believing that this case exemplifies the problems flowing from

Duffey, Employer asks this Court to reconsider Duffey and restore the WCJ to the

appropriate role of factfinder.

       Finally, Employer argues that the Commonwealth Court erred by “substituting its

assessment of the credible medical testimony for that of the [WCJ]” in its “misguided and

erroneous effort to follow Duffey.” (Id. at 32, 35.) Employer contends that the WCJ

explicitly accepted as credible Dr. Rodriguez’s testimony that Claimant’s whole-person

impairment rating was 25% and rejected as not credible Dr. Rodriguez’s testimony that

Claimant’s whole-person impairment rating was 45%. Employer emphasizes that “that

incredible opinion cannot form the basis to deny” Employer’s modification petition.

(Id. at 33.) Citing well-settled law relative to a WCJ’s exclusive authority to evaluate

conflicting evidence, render findings of fact, and rule on the credibility of witnesses,

Employer argues that the WCJ, here, articulated her reasons for her credibility

determinations as required by that well-settled law. More specifically, Employer notes

that the WCJ accepted Dr. Rodriguez’s 25% whole-person impairment rating as credible

because it was premised on Claimant’s long-established compensable injury and rejected

Dr. Rodriguez’s 45% whole-person impairment rating as not credible “precisely because

it was not limited to the parameters of the compensable injury.” (Id. at 34.) Employer

also challenges the Commonwealth Court’s conclusion that the WCJ’s decision in this

regard was based upon a “misapprehension,” as “[s]uch [a] misapprehension is nowhere

evident in the record or in [the WCJ’s] decision.” (Id.) Employer, therefore, argues that,

even if Duffey empowers an IRE physician-evaluator to rate conditions other than those




                                         [J-60-2023] - 16
included in the compensable injury, “a circumstance that [Employer] believe[s] is not

permitted [under] the . . . Act, there is no requirement that the WCJ must believe that

rating.” (Id. at 35.)

        Claimant, on the other hand, argues that the Commonwealth Court did not usurp

the WCJ’s authority to determine the nature and extent of the compensable injury. In so

arguing, Claimant admits that the sole issue before the WCJ was the degree of Claimant’s

impairment due to the compensable injury, not the nature and extent of the compensable

injury itself. To that end, Claimant acknowledges that the WCJ did not have a pending

review petition before her seeking to amend the description of the compensable injury

and that the description of the compensable injury and Employer’s liability to pay medical

expenses in connection with that injury had already been fully decided in previous

litigation.    Claimant submits that, “[a]s Duffey makes clear, there is a tremendous

distinction between injury and impairment, and the role of the [IRE physician-evaluator]

under Section 306[(a.3)] of [t]he Act as well as the AMA Guides” is to determine the

whole-person “impairment due to the [compensable] injury or reasonably flowing from the

[compensable] injury.” (Claimant’s Br. at 9, 11.) Claimant further submits that the plain

meaning of Section 306(a.3) requires the IRE physician-evaluator simply “to rate

impairment[], not [to] determine the nature and extent of the compensable injury.”

(Id. at 10.)    Claimant, nevertheless, maintains that Employer’s arguments on appeal

“ignore[] the already litigated fact that [the] surgeries [performed on his lumbar spine in

September 2007] are fairly attributable to the work[-related] injury” and that, when you

accept the fact that Employer was ordered to pay for those surgeries, which Claimant

suggests were performed to treat something other than the accepted lumbar strain,

Claimant had a whole-person impairment rating in excess of 35%. (Id. at 10.) For these

reasons, Claimant posits that “Employer’s request to overrule the sound holding of Duffey




                                     [J-60-2023] - 17
is nothing more than an attempt to allow form to dominate over substance” and that the

instant matter is not an appropriate vehicle by which “to distinguish or overrule Duffey.”

(Id. at 11, 12.)

        Claimant next contends that the Commonwealth Court did not, as Employer

suggests, substitute its assessment of credibility for that of the WCJ, but rather, correctly

observed that the WCJ misapprehended the issue before her. In support, Claimant

reiterates that the issue before the WCJ pertained to the degree of Claimant’s permanent

impairment due to the compensable injury, not the nature and extent of the compensable

injury itself.     Claimant maintains that the WCJ was clearly attempting to define the

compensable injury, not Claimant’s impairment, and, in so doing, ignored Duffey.

Claimant adds that none of the WCJ’s credibility determinations are supported by

substantial evidence and, as such, they are “fatally flawed.” (Id. at 13-14.) Claimant

submits that, by finding Dr. Rodriguez’s testimony relative to her whole-person

impairment rating of 45% to be not credible, the WCJ ignored the tenets of Duffey. To

that end, Claimant points out that the whole-person impairment rating “credited by the

[WCJ] explicitly did not rate any impairment for the [surgeries] that Claimant underwent

[on his lumbar spine] as a result of the [work-related] injury.” (Id. at 14.)     Claimant,

therefore, contends that the Commonwealth Court had no choice but to reverse the

Board’s decision and remand for the reinstatement of his total disability benefits because

the evidence of record does not support the modification of his indemnity benefits.

                                      IV. DISCUSSION

        A brief summary of the IRE process, including the role and authority of both the

IRE physician-evaluator and the WCJ, will be helpful to my analysis. Generally speaking,

Section 306(a.3) of the Act governs the manner in which an employer may obtain a

modification of a claimant’s indemnity benefits from total disability to partial disability




                                       [J-60-2023] - 18
based upon the results of an IRE. See 77 P.S. § 511.3. Section 306(a.3) provides, in

relevant part, that “[w]hen an employe has received total disability compensation . . . for

a period of [104] weeks . . . the employe shall be required to submit to a medical

examination . . . to determine the degree of impairment due to the compensable injury, if

any.”    77 P.S. § 511.3(1) (emphasis added).               The IRE physician-evaluator is

independent—i.e., he/she is chosen by agreement of the parties or is designated by the

Department of Labor and Industry—and is charged with the responsibility of determining

the degree of a claimant’s impairment due to the compensable injury. 77 P.S. § 511.3(1).

“Impairment” is defined as “an anatomic or functional abnormality or loss that results from

the compensable injury and is reasonably presumed to be permanent,” and “impairment

rating” is defined as “the percentage of permanent impairment of the whole body resulting

from the compensable injury . . . not [from] any preexisting work-related or

nonwork-related impairment.” 77 P.S. § 511.3(8)(i)-(ii). If, following the IRE, the IRE

physician-evaluator determines that the claimant has a whole-person impairment rating

that is less than 35%, the claimant’s indemnity benefits will be modified from total disability

to partial disability.   77 P.S. § 511.3(2).     If, however, the IRE physician-evaluator

determines that the claimant has a whole-person impairment rating that is equal to or

greater than 35%, the claimant will be presumed to be totally disabled and will continue

to receive total disability benefits. 77 P.S. § 511.3(2).

        In the event that the employer requests that the claimant submit to an IRE within

60 days of the expiration of the claimant’s receipt of 104 weeks of total disability benefits

and the IRE physician-evaluator determines that the claimant has a whole-person

impairment rating that is less than 35%, “the change in disability status is automatic.”

Diehl v. Workers’ Comp. Appeal Bd. (I.A. Constr.), 

 (Pa. 2010). A claimant

that is dissatisfied with the IRE determination has “the right to immediately appeal the




                                      [J-60-2023] - 19
[automatic/unilateral] change in his . . . disability status and seek a hearing before a WCJ”

by filing a petition to review the IRE determination. Johnson v. Workers’ Comp. Appeal

Bd. (Sealy Components Grp.), 

 (Pa. Cmwlth. 2009), appeal denied,

 (Pa. 2010). If, on the other hand, the employer requests that the claimant

undergo the IRE after the 60-day window has expired, the “employer may still seek [a]

modification of benefits from total to partial based on the IRE, but the normal

administrative process for obtaining a modification of benefits applies.” Verizon Pa. Inc.

v. Workers’ Comp. Appeal Bd. (Mills), 

 (Pa. Cmwlth. 2015). As this

Court has explained, under those circumstances,
       [t]he IRE merely serves as evidence that the employer may use at a hearing
       before a WCJ on the employer’s modification petition to establish that the
       claimant’s disability status should be changed from total to partial. In that
       event, the IRE becomes an item of evidence just as would the results of any
       medical examination the claimant submitted to at the request of his
       employer. It is entitled to no more or less weight than the results of any
       other examination. The [IRE] physician[-evaluator] who performed the IRE
       is subject to cross-examination, and the WCJ must make appropriate
       credibility findings related to the IRE and the performing [IRE]
       physician[-evaluator]. The claimant, obviously, may introduce his own
       evidence regarding his degree of impairment to rebut the IRE findings.
Diehl, 

. “[I]t is a fundamental tenet of workers’ compensation law that the

WCJ, as fact[]finder, has complete authority over questions of witness credibility and

evidentiary weight.” Verizon Pa. Inc., 

. “As the ultimate fact[]finder, the

WCJ has exclusive province over questions of credibility and evidentiary weight[] and is

free to accept or reject the testimony of any witness, including a medical witness, in whole

or in part.” 

 In sum, the proceedings before a WCJ in connection with an IRE

determination can generally be initiated in one of two ways: (1) by the claimant filing a

petition to review the IRE determination; or (2) by the employer filing a modification

petition.




                                      [J-60-2023] - 20
       Additionally, before I can determine whether the Commonwealth Court

impermissibly expanded Duffey’s holdings, I must first comprehend this Court’s decision

in that case. In Duffey, a workers’ compensation claimant sustained injuries to both of

his hands when he picked up live electrical wires while repairing a machine for his

employer. Duffey, 

. The employer accepted liability for the claimant’s

work-related injury by issuing an NCP, which identified “bilateral hands” as the affected

body parts; “electrical burn” as the type of injury; and “stripping some electrical wire” as

the description of the work-related incident. 

 After the claimant had received total

disability benefits for a period of 104 weeks, the employer requested an IRE pursuant to

Section 306(a.2) of the Act and, in connection with its request, described the

compensable injury as “bilateral hands-nerve and joint pain.” 

. Following

the IRE, the IRE physician-evaluator assigned the claimant a whole-person impairment

rating of 6%, which prompted the employer to provide the claimant with notice that his

indemnity benefits would be modified from total disability to partial disability. 

.

In response thereto, the claimant filed a review petition, wherein he attacked the validity

of the IRE on the basis that the IRE physician-evaluator failed to rate the full range of his

work-related injuries, given that he “suffered from adjustment disorder with depressed

mood and chronic post-traumatic stress disorder as a result of his work[-related] injury.”

       Before the WCJ, the claimant entered evidence into the record to support the

additional diagnoses, including:    (1) his own testimony that he had developed and

continued to experience “impairment in the use of his hands, agonizing deep pain, and

debilitating exhaustion;” (2) the deposition testimony of his family physician, who had

diagnosed him with and had treated him for the adjustment disorder with depressed mood

and chronic post-traumatic stress disorder; and (3) the deposition testimony of a




                                      [J-60-2023] - 21
neurologist, “who attested that [the c]laimant’s injury had evolved into a disabling, chronic

neuropathic pain syndrome attended by emotional and cognitive changes.” 

.

In opposition thereto, the employer introduced the deposition testimony of the IRE

physician-evaluator, who explained that the whole-person impairment rating “did not

account for [the] asserted work-related adjustment disorder or post-traumatic stress

syndrome” because he was not qualified to assess those conditions and was specifically

asked to assess only the electrical burn injuries. 

. The employer also introduced

the deposition of a clinical and forensic psychiatrist, who evaluated the claimant,

concluded that the claimant had fully recovered from the adjustment disorder with anxiety

and depressed mood, and expressed disagreement with the post-traumatic stress

disorder diagnosis. 

 The WCJ ultimately granted the claimant’s review petition and

directed that the claimant’s indemnity benefits not be modified. 

 In so doing, the WCJ

accepted the claimant’s evidence as credible, rejected the employer’s conflicting

evidence as not credible, directed that the claimant’s psychological conditions be added

to the NCP, and concluded that the IRE was invalid because the IRE physician-evaluator

did not consider those psychological conditions.         

   The Board reversed, and the

Commonwealth Court thereafter affirmed the Board’s order. 

.

       On appeal to this Court, in a divided opinion written by Chief Justice Saylor, this

Court reversed the Commonwealth Court’s order and remanded the matter “for

reinstatement of the finding of invalidity rendered by the WCJ.” 

. Focusing on

the fact that Section 306(a.2) of the Act “explicitly invest[ed] in [IRE] physician-evaluators

the obligation to ‘determine the degree of impairment due to the compensable injury,’”

this Court explained that these express terms required the IRE physician-evaluator to

“consider and determine causality in terms of whether any particular impairment is ‘due

to’ the compensable injury.” 

 (emphasis in original) (quoting Section 306(a.2)(1)




                                      [J-60-2023] - 22
of the Act, 77 P.S. § 511.2(1) (repealed 2018)). Adding that an IRE concerns “the

percentage of permanent impairment of the whole body resulting from the compensable

injury,” this Court reasoned that, while it did not disagree that an NCP should define

“compensable injury” for purposes of the IRE, “[s]uch recognition . . . simply does not

determine the range of impairments which may be ‘due to’ such injury.” Id. (quoting

Section 306(a.2)(8)(ii) of the Act, 77 P.S. § 511.2(8)(ii) (repealed 2018)). This Court,

therefore, held that IRE “physician-[evaluators] must exercise independent professional

judgment to make a whole-body assessment of ‘the degree of impairment due to the

compensable injury,’ which discernment cannot be withheld on the basis that the

physician-[evaluator] believes the undertaking is a more limited one.” Id. at 996 (internal

citation omitted). Applying its holding to the facts, this Court reasoned:
       [I]t is apparent from the record that the [IRE p]hysician–[e]valuator did not
       apply professional judgment to assess . . . the psychological conditions
       identified by [the c]laimant during the IRE examination; nor did he determine
       whether such conditions as might have been diagnosed were fairly
       attributable to [the c]laimant’s compensable injury. Instead of abiding by
       the directives of Section 306(a.2) and the AMA Guides in such regards, the
       [IRE p]hysician–[e]valuator purported to take a different set of instructions
       from [the e]mployer. Proceeding as such, the [IRE p]hysician–[e]valuator
       simply ignored a range of potential diagnoses and impairments. Again,
       however, the [IRE p]hysician–[e]valuator was bound to take his guidance,
       not from [the e]mployer, but from Section 306(a.2) and the AMA Guides.[6]

6 In a dissenting opinion, then-Justice Baer faulted the majority for treating the claimant’s

psychological conditions as “impairments” that derived from his accepted work-related
injury, when it “seem[ed] obvious that [those conditions did] not derive from [the]
claimant’s [accepted] hand injury but, if compensable, [were] a result of being
electrocuted.” Duffey, 

 (Baer, J., dissenting). Justice Baer explained that,
under the majority’s holding, “even in a case like this, where the [c]laimant himself does
not purport that the impairment he is expressing . . . is related to his accepted . . . injury,
if the [IRE] physician[-evaluator] fails to evaluate those conditions, then the IRE is to be
disregarded by the WCJ.” 

 Justice Baer further explained that this “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
(continued…)

                                      [J-60-2023] - 23


 (footnote omitted) (citations omitted).

       In my view, while Duffey may have stretched the bounds of the IRE

physician-evaluator’s authority by requiring her to consider whether certain conditions—

i.e., conditions not included in the description of the accepted work-related injury but

reported by the claimant at the time of the IRE—were fairly attributable to the

compensable injury and, if so, to include those conditions in her determination of the

claimant’s whole-person impairment rating, Duffey was never intended to eliminate the

WCJ’s exclusive role to determine the nature and extent of a claimant’s work-related

NCP.” 

. In Justice Baer’s view, the IRE physician-evaluator “properly limited
his evaluation to the impairments associated with the compensable injury set forth in the
NCP,” and, therefore, he would have affirmed the Commonwealth Court’s decision. 

.
        In a separate dissenting opinion, Justice Wecht expressed his belief that the
majority’s “reading of [Section] 306(a.2) [of the Act] will compromise the [IRE] process,
which exists to quantify a claimant’s whole[-]body impairment due to his established
work-related injuries.” 

 (Wecht, J., dissenting). Justice Wecht explained that
“[t]he [m]ajority’s principal misstep [was] that it mislabel[ed the claimant’s] psychological
conditions, both of which [were] injuries in their own right, as ‘impairments’ that the IRE
physician[-evaluator was required to] diagnose and evaluate.” 

 (footnote omitted).
Justice Wecht suggested that, in doing so, the majority failed to consider the Act’s
definition of “impairment” and, in turn, that “impairment ratings quantify losses and
limitations, not diseases and disorders.” 

. Justice Wecht pointed out that,
“[n]otwithstanding its repeated insistence that its holding flow[ed] from the plain language
of Section 306(a.2), the [m]ajority fail[ed] to elucidate the principle which can transform
the statutory phrase ‘the degree of impairment due to the compensable injury’ into the
unconfined styling ‘the degree of impairment due to injuries not yet determined to be
compensable.’” 

 (footnote omitted). Justice Wecht explained that the majority
essentially relieved “claimants of their burden of proving a causal relationship between
the accepted work-related injury and any subsequently arising psychological injuries.”

. In Justice Wecht’s view, an IRE physician-evaluator “who proceeds
according to his or her own assessment is not a substitute for a WCJ who first evaluates
conflicting expert testimony and then reaches a reasoned decision.” 

. In sum,
Justice Wecht opined that “[t]he [m]ajority’s interpretation of Section 306(a.2), one which
neither party ha[d] advanced and which the plain language [did] not support, will
fundamentally alter the IRE process[,] . . . will relieve claimants of their burden to prove
compensable injuries[,] . . . [will] turn [IRE physician-evaluators] into junior varsity
WCJs[,]” and will likely result in “heightened confusion and increased litigation.”

.


                                      [J-60-2023] - 24
injury through her determinations of credibility and evidentiary weight. Rather, Duffey

was meant to apply only under very unique circumstances: where, during the IRE

proceedings, the claimant sought to litigate before the WCJ the extent of his work-related

injury and, in doing so, introduced his own medical evidence to establish that a material

mistake of fact or law was made at the time the NTCP/NCP was issued or that the scope

of the work-related injury had changed. Jeanes Hosp. v. Workers’ Comp. Appeal Bd.

(Hass), 

 (Pa. 2005); see also Section 413(a) of the Act, 77 P.S. §§

771-772. Duffey was never meant to apply to situations where the claimant did not put

forth any additional medical evidence before the WCJ supporting his request to amend

the description of his work-related injury and, instead, sought to rely solely on the IRE

physician-evaluator’s opinion relative to his whole-person impairment rating to expand

the scope of his work-related injury and, in turn, increase the percentage of his whole-

person impairment rating. In other words, I would cabin Duffey to its particular facts and

hold that, while Duffey requires the IRE physician-evaluator to consider additional

diagnoses reported by the claimant at the time of the IRE but not included in the

description of the accepted work-related injury, the WCJ is only required to consider a

whole-person impairment rating based on those additional diagnoses if the claimant

introduces medical evidence supporting the work-relatedness thereof and the WCJ,

based on his credibility determinations, amends the description of the accepted work-

related injury to include those diagnoses. Limiting Duffey in this manner would ensure

that this Court did not: (1) usurp the WCJ’s authority to define the nature and extent of

the work-related injury through her determinations of credibility and evidentiary weight;

(2) alter the independent nature of the IRE process; or (3) create procedural due process

concerns—i.e., create a situation where the employer is not given notice or an opportunity




                                    [J-60-2023] - 25
to offer evidence to rebut a claimant’s attempt to amend and/or expand the description of

the work-related injury.

       Here, unlike in Duffey, Claimant did not produce any medical evidence to establish

that, in addition to those diagnoses included within the accepted work-related injury, he

also sustained a lumbar disc protrusion or spondylolisthesis with lumbar radiculopathy as

a result of the August 25, 1999 work-related incident. In fact, the only petition pending

before the WCJ for consideration was Employer’s modification petition. Had Claimant

desired to rely on the principles established by this Court in Duffey, Claimant should have

filed a review petition seeking to amend the description of his work-related injury to include

those additional diagnoses. If Claimant had done so, the WCJ could have consolidated

Claimant’s review petition with Employer’s modification petition. Then, as part of the IRE

proceedings, the WCJ could have considered not only whether Claimant’s indemnity

benefits should have been modified from total disability to partial disability as a result of

Dr. Rodriguez’s IRE determination but also whether the scope of Claimant’s work-related

injury had changed such that the description of his work-related injury should have been

amended. If the WCJ determined that Claimant had met his burden on the review petition

and amended the description of Claimant’s work-related injury to include a lumbar disc

protrusion or spondylolisthesis with lumbar radiculopathy, the WCJ then could have

considered Dr. Rodriguez’s determination that Claimant had a whole-person impairment

rating of 45% when ruling on Employer’s modification petition.

       Instead of proceeding in this manner, Claimant sought to rely exclusively on Dr.

Rodriguez’s testimony and opinions that those diagnoses were causally related to the

work-related incident and that, when those diagnoses were included in the IRE

determination, Claimant had a whole-person impairment rating of 45%.              The WCJ,

however, rejected Dr. Rodriguez’s testimony and opinions in that regard on the basis that




                                      [J-60-2023] - 26
Claimant’s work-related injury had been described in numerous prior decisions and that

such description had never been amended or expanded to include those additional

diagnoses. Making this credibility determination and rejecting Dr. Rodriguez’s testimony

and opinions was certainly within the WCJ’s purview as the factfinder. See Verizon Pa.

Inc., 

. Thus, even if I were to assume that Dr. Rodriguez’s testimony

and opinions alone could, under some circumstance, support the WCJ’s amendment of

the description of the work-related injury, that is not what occurred here.

       Moreover, I, like the WCJ, cannot put aside the fact that, throughout the parties’

litigation of the various petitions filed in this matter, the description of Claimant’s

work-related injury always remained the same: a lumbar strain, a left knee contusion,

chronic pain syndrome, and chronic adjustment disorder with anxiety and depression. In

fact, at one point, Claimant filed a review petition, seeking to expand the description of

his work-related injury to include additional injuries to his neck, cervical spine, and upper

extremities, and the WCJ denied and dismissed that review petition. In addition, while

Claimant may be correct that a WCJ previously ordered Employer to pay the medical bills

incurred in connection with the surgeries performed on his lumbar spine in

September 2007, Claimant wholly ignores that the Board, in affirming the WCJ’s decision,

specifically emphasized that the WCJ did not amend the description of the work-related

injury but, instead, merely determined that those surgeries were causally related to the

accepted work-related injury. 7 The Commonwealth Court, purportedly in reliance on


7 The Opinion in Support of Affirmance (OISA) relies heavily on the fact that, in 2011, a

WCJ made a “causality determination . . . for purposes of determining Employer’s
obligation to pay for specific medical care.” (OISA at 11.) In the OISA’s view, “[i]t is both
absurd and unjust that Dr. Rodriguez could not consider [Claimant’s lumbar disc
protrusion or] spondylolisthesis [with lumbar radiculopathy] in assessing his impairment
rating during the IRE merely because the NCP was never amended to include [those]
condition[s],” as “Employer was required to pay for [Claimant’s] surgery for [a lumbar disc
protrusion or] spondylolisthesis [with lumbar radiculopathy] after a specific determination
(continued…)

                                      [J-60-2023] - 27
Duffey, disregarded this established law of the case and the WCJ’s evidentiary weight

and credibility determinations and concluded that the WCJ erred as a matter of law in

constraining the IRE review to the description of the accepted work-related injury. As

stated above, this is simply not the situation where Duffey was meant to apply.


that it was causally related to his 1999 work injury.” (Id.) It is presumably on this basis
that the OISA then concludes that the record refutes our “illusory due process concerns”
because “Dr. Rodriguez’s causality determination . . . flowed directly from the prior
litigation in this case”—i.e., “Employer had notice of [Claimant’s lumbar disc protrusion
or] spondylolisthesis [with lumbar radiculopathy] as far back as 2007, and it engaged in
protracted but unsuccessful litigation to challenge its responsibility to pay for [Claimant’s]
surgeries that were necessarily premised on that diagnosis.” (Id. at 10, 14.)
       The OISA also freely admits, however, that an NCP is “the agreement between an
employer or an insurer and a claimant regarding liability for the claimant’s injury,” that
“[a]n NCP defines the compensable injury, and [that] a WCJ ‘may, at any time, review
and modify or set aside’ an NCP.” (Id. at 2 (quoting Crozer Chester Med. Ctr. v. Dep’t of
Lab. & Indus., Bureau of Workers’ Comp., Health Care Servs. Rev. Div., 

,
197 (Pa. 2011), and Section 413(a) of the Act, 77 P.S. § 771).) Indeed, an NCP may be
modified to correct a material mistake made at the time that the NCP was issued or to
include “an increase, decrease, recurrence, or cessation of disability.” Cinram Mfg., Inc.
v. Workers’ Comp. Appeal Bd. (Hill), 

 (Pa. 2009).
        To allow a diagnosis to be considered an “impairment” for the purposes of an IRE
when the NCP has not been amended to include that diagnosis as part of the description
of the compensable injury will essentially hold an employer liable for injuries for which it
did not agree to be responsible and/or for which a WCJ did not adjudicate it responsible
by amending the NCP. Identification of compensable injuries in the NCP avoids
confusion, uncertainty, and the need to sift through what could be rather voluminous
medical records and/or records of prior proceedings to determine what injuries and
medical bills the employer may be responsible for in the future. The fact that, here,
Employer unsuccessfully litigated its responsibility to pay for the surgeries performed on
Claimant’s lumbar spine in September 2007 does not, as the OISA suggests, satisfy any
due process concerns relative to Employer’s liability for Claimant’s lumbar disc protrusion
or spondylolisthesis with lumbar radiculopathy. The WCJ’s decision related only to
Employer’s liability for the payment of the medical bills associated with those surgeries
and not its liability for additional injuries that were never identified as compensable in the
NCP. Claimant had the ability to seek an amendment to his NCP to include those injuries
at any time but, for whatever reason, chose not to do so. As explained more fully above,
the difference between this case and Duffey is that, in Duffey, the claimant sought to
amend the NCP at the same time that the employer sought to modify the claimant’s
indemnity benefits pursuant to the results of the IRE. This is precisely why Duffey must
be cabined to its facts.


                                      [J-60-2023] - 28
                                   V. CONCLUSION

      For all of these reasons, I would conclude that the Commonwealth Court

impermissibly expanded this Court’s holding in Duffey so as to usurp the WCJ’s authority

to determine the nature and extent of a compensable injury and substituted its

assessment of the credibility of the witnesses for that of the WCJ when it reversed the

Board’s decision and remanded the matter for the reinstatement of Claimant’s total

disability benefits. Accordingly, I would reverse the Commonwealth Court’s order.

      Chief Justice Todd joins this opinion in support of reversal.




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