The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
: No. 1190 C.D. 2023
v. :
: Argued: June 4, 2024
Lamont Turner (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MATTHEW S. WOLF, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: October 17, 2024
The City of Philadelphia (Employer) petitions for review from the
October 6, 2023 Opinion and Order of the Workers’ Compensation Appeal Board
(Board), which affirmed the January 23, 2023 Decision and Order of Workers’
Compensation Judge (WCJ) Audrey Timme (WCJ Timme). WCJ Timme denied
Employer’s Modification Petition in which it sought to reduce Lamont Turner’s
(Claimant) workers’ compensation benefits status from total temporary disability
(TTD) to partial temporary disability (PTD) based on an impairment rating
evaluation (IRE) conducted on December 15, 2021. WCJ Timme rejected the
testimony of the IRE physician-evaluator and, resultantly, concluded that Employer
did not carry its burden to prove that Claimant’s whole-person impairment rating
was less than 35% as required by Section 306(a.3) of the Workers’ Compensation
Act (Act).1 Upon review, we affirm.
1
Section 306(a.3) of the Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of
the Act of October 24, 2018, P.L. 714, 77 P.S. § 511.3.
I. FACTS AND PROCEDURAL HISTORY
On March 3, 2006, Claimant was injured in the course and scope of his
employment as a corrections officer for Employer. (Reproduced Record (R.R.) at
10a, 43a.) After two prior WCJ decisions in 2007 and 2013, on May 20, 2021, WCJ
Erin Young (WCJ Young) issued a decision granting in part and denying in part a
termination petition filed by Employer alleging that Claimant had fully recovered
from his work injury. Id. at 10a, 43a.2 WCJ Young noted that Claimant’s injury at
that time was described as “strain, contusion of the lumbar spine, bilateral feet and
left hip” together with a “patellar strain/sprain with exacerbation of pre[]existing left
patellar tendon rupture.” Id. at 10a, 43a. WCJ Young found that Claimant had fully
recovered from his left knee, left hip, and bilateral feet injuries as of January 6, 2020,
but further concluded that Claimant had not fully recovered from his low back injury.
Id. at 10a, 47a-48a. Claimant accordingly continued to receive TTD benefits.
On January 3, 2022, Employer filed the Modification Petition, seeking
to reduce Claimant’s benefits status from TTD to TPD based on the December 15,
2021 IRE of Dr. Guy Fried. Hearings were held before WCJ Timme on February 7,
2022, and September 1, 2022, at which WCJ Young’s May 20, 2021 decision and
Dr. Fried’s deposition testimony were submitted into evidence. (Certified Record
(C.R.) at Document Nos. 9, 10.) Attached to Dr. Fried’s deposition transcript was
his December 27, 2021 written IRE report (Fried Report). (R.R. at 110a-17a.)
Neither Claimant nor Employer introduced any other evidence. Id.
Dr. Fried is board certified in physical medicine and rehabilitation,
brain injury medicine, pain management, electrodiagnostic medicine, and spinal
cord injury medicine. Id. at 58a. In performing his IRE, Dr. Fried reviewed
2
WCJ Timme referenced WCJ Young’s decision as being circulated on May 25, 2021.
(Reproduced Record (R.R.) at 10a.) WCJ Young’s decision was in fact circulated on May 20,
2021. Id. at 41a.
2
Claimant’s treatment records and diagnostic study reports going back to the date of
injury in March 2006. Dr. Fried also reviewed WCJ Young’s May 20, 2021 decision
and the medical expert reports and deposition testimony introduced at the hearing
before WCJ Young. Id. at 58a-60a. Dr. Fried conducted a physical examination of
Claimant, during which Claimant reported that he was experiencing depression,
anxiety, erectile dysfunction, urinary incontinence, and significant weight gain. Id.
at 62a.
Based on his evaluation, Dr. Fried concluded that Claimant had reached
maximum medical improvement, which he understood, pursuant to the American
Medical Association “Guides to the Evaluation of Permanent Impairment,” Sixth
Edition (second printing April 2009) (AMA Guides), to mean that Claimant’s
condition had stabilized and likely would not improve or worsen substantially in the
following year either with or without treatment. Id. at 63a. Dr. Fried did not evaluate
or rate Claimant’s prior knee, hip, and foot injuries, as WCJ Young had found that
Claimant had fully recovered from them. Dr. Fried therefore evaluated only
Claimant’s low back injury, lumbar radiculopathy. Id. at 65a, 116a. Based on the
AMA Guides, Dr. Fried calculated Claimant’s whole-person impairment rating to
be 31%. Id. at 66a. Regarding Claimant’s other conditions, Dr. Fried testified as
follows:
Q. [Employer’s Counsel] Am I correct that you did
not rate [Claimant’s] left knee, left hip, bilateral feet
[injury] or depression, anxiety, erectile dysfunction or
incontinence that he spoke to you about?
A. [Dr. Fried] That’s correct.
Q. Why not?
A. It was not listed in the [Workers’ Compensation
Automation and Integration System (WCAIS)]. It was not
listed by [WCJ] Young. It was not my understanding that
3
it was accepted as the injury, so I am trying to go by the
rules.
He certainly expressed his opinion and, you know,
certainly has had a changed body over the last years but I
was going within the rules of the rating . . . .
Q. When calculating his whole[-]person impairment,
did you take into consideration both his subjective
complaints and findings upon physical examination?
A. Yes.
....
[Cross-examination by Claimant’s counsel]
Q. At the bottom [of page 7 of the Fried Report], you
note some of the things that [Claimant] had been telling
you he had been dealing with since the work injury,
including the urinary incontinence.
Is urinary incontinence the type of problem that can
be associated with a herniated disc?
A. Yes.
....
Q. On [p]age 8 [of the Fried Report], it references that
[Claimant] gained about 115 pounds since this happened
to him. Correct?
A. Correct.
Q. With a low back injury, would it be fair [to say] that
people would have a difficult time being mobile or
physically active, keep in training and keep [ ] in [a]
working-out-type program?
A. Yes.
Q. It’s not unreasonable to associate a weight gain to a
lack of mobility; is that correct?
A. No. It’s certainly associated.
Q. And it’s also fair to associate hypertension and
obesity—the development, rather, of hypertension and
obesity?
4
A. Certainly can be, yes.
....
Q. And the same would hold for anxiety and
depression doctor. [In] [y]our long practice, it’s not
unusual for people who have a chronic long-term injury to
become anxious and/or depressed. Correct?
A. Correct.[3]
(R.R. at 66a-67a, 69a-71a.) Dr. Fried also noted that, when calculating a patient’s
whole-person impairment rating, “you always give the patient the benefit of the
doubt. If you can calculate in three methods, you choose the most generous method
to give the patient.” Id. at 64a.
In her decision, WCJ Timme reviewed in detail the evidence presented
and made the following pertinent findings concerning the basis of Dr. Fried’s IRE:
4. This [WCJ] has carefully reviewed the medical
evidence of record and relevant case law and finds the
opinion of Dr. Fried to be internally inconsistent and not
competent or credible. In so finding, this [WCJ] notes that
Dr. Fried admittedly did not rate the depression, anxiety,
erectile dysfunction and incontinence that Claimant
reported but nevertheless testified that he considered
3
In his report, Dr. Fried noted that Claimant stated that he believed his urinary
incontinence, obesity, erectile dysfunction, anxiety, and depression should be considered as part
of his work injury. (Fried Report, 7-8; R.R. at 116a-17a.) Dr. Fried further noted:
Looking on the WCAIS site, his low back injury is the only injury
that is covered. Without clearly allowing the expansion to cover his
other injuries, I will conservatively interpret this as counting only
his lumbar radiculopathy. [Claimant]’s low back injury
radiculopathy results in a whole[-]person permanent
impairment of 31 [%].
If the injury were accepted beyond the lumbar radiculopathy to
include his left knee, erectile dysfunction, obesity, depression, and
anxiety, his whole[-]person impairment would increase likely above
35 [%]. Without the expressed WCAIS documentation and workout
of these conditions, I will not include these in his [IRE].
Id. at 117a (emphasis in original).
5
Claimant’s subjective complaints in calculating
Claimant’s whole[-] person impairment. Additionally[,]
he did not rate the depression, anxiety, erectile
dysfunction and incontinence because he was constrained
to “follow the rules of the rating,” which he understood
was to rate only the accepted work injuries. Dr. Fried
therefore “misapprehended” the discretion [afforded] an
IRE physician-evaluator to “exercise professional
judgment to render appropriate decisions concerning both
causality and apportionment.” Sicilia v. API Roofers
Advantage Program [(Workers’ Compensation Appeal
Board)], 277 A.3d 1213, 1217-18 (Pa. Cmwlth. 2022)
[(Sicilia I), aff’d by evenly divided court, 318 A.3d 803
(Pa. 2024) (Sicilia II)4] (citing[, in part,] [Duffey v.
Workers’ Compensation Appeal Board (Trola-Dyne,
Inc.), 152 A.3d 984 (Pa. 2017) (Duffey II)].
5. Employer failed to meet its burden of proof that
Claimant’s disability status should be modified to [TPD]
based on the December 15, 2021 [IRE] of Dr. [ ] Fried.
Employer’s Modification Petition will be denied.
(WCJ Timme Findings of Fact (FOF) 4-5; R.R. at 13a.) WCJ Timme accordingly
denied the Modification Petition and directed that Claimant’s benefit status remain
as TTD. (WCJ Timme Order; R.R. at 15a.)
Employer appealed to the Board, arguing that WCJ Timme’s findings
and conclusions regarding Dr. Fried’s testimony were erroneous, inconsistent,
arbitrary and capricious, and not based on substantial evidence. (R.R. at 16a.)
Specifically, Employer argued that both Duffey II and Sicilia I are distinguishable in
this case, in part because Claimant neither testified nor presented any medical
testimony regarding the additional conditions Dr. Fried omitted from his impairment
rating. Id. Employer also argued that the record contains no evidence that including
4
The Pennsylvania Supreme Court decided Sicilia II on July 17, 2024, during the pendency
of this appeal.
6
these additional conditions would have resulted in a rating equal to or greater than
35%. Id.
The Board affirmed, concluding that WCJ Timme’s findings regarding
Dr. Fried’s testimony involved credibility and evidentiary weight, which are matters
reserved to the WCJ’s discretion. The Board noted that, although Dr. Fried
considered Claimant’s subjective complaints, he specifically did not include
Claimant’s depression, anxiety, erectile dysfunction, or incontinence in his whole-
person impairment rating because those conditions had not been accepted as part of
the description of Claimant’s work injury. Id. at 29a. Further, although Dr. Fried
agreed that such conditions can be associated with a low back injury, he nevertheless
did not testify to any causal relationship between them and Claimant’s injury. Id.
The Board ultimately concluded that, because Dr. Fried’s opinions were internally
inconsistent and out of line with the holdings in Duffey II and Sicilia I, WCJ
Timme’s rejection of them was not arbitrary or capricious. Id. at 29a-30a.5
Employer now petitions this Court for review.
II. QUESTIONS PRESENTED
Employer presents a single question in this appeal, namely, whether the
Board erred in affirming WCJ Timme’s decision denying Employer’s Modification
5
Board Chairman Alfonso Frioni, Jr. wrote a concurring opinion, joined by Commissioners
Crawford, Gabig, and Thrasher, in which Chairman Frioni expressed ongoing concerns with the
practical difficulties that the majority holdings in both Duffey II and Sicilia I will cause in the IRE
process. Chairman Frioni opined that the description of a claimant’s compensable work injury,
which under the Act is readily modifiable, should strictly determine what conditions are considered
in an IRE impairment rating. (R.R. at 31a-33a.) See also id. at 33a (“The Act, read and interpreted
as a whole[,] clearly entrusts the adjudication of the nature and extent of an injury, as well as its
nexus to the work incident or injury, premised on expert evidence and testimony, solely to the
WCJ, not to an IRE physician[-evaluator].”), 34a (“It should not be the job of the IRE physician[-
evaluator] to ferret out what conditions may be attributable to the compensable injury based on
comments made by the claimant during the IRE.”).
7
Petition. More specifically, Employer contends that WCJ Timme both erred as a
matter of law in applying Duffey II and Sicilia I and rendered arbitrary and capricious
findings regarding Dr. Fried’s medical testimony.
III. DISCUSSION6
A. The Act
We begin with the Act. Section 306(a.3) of the Act provides that, after
a claimant has received TTD for a period of 104 weeks, unless otherwise agreed, the
claimant shall submit to an IRE to “determine the degree of impairment due to the
compensable injury.” 77 P.S. § 511.3(1). The degree of the claimant’s impairment
is determined by a qualified physician-evaluator pursuant to the AMA Guides. Id.
If the physician-evaluator determines that the claimant has a whole-person
impairment rating equal to or greater than 35%, the claimant shall continue receiving
TTD. Id. § 511.3(2). If the claimant’s whole-person impairment rating is
determined to be less than 35%, the claimant’s benefits status may be reduced to
TPD. Id.
B. Duffey II and Sicilia I & II
In Duffey II, the Pennsylvania Supreme Court considered whether an
IRE physician-evaluator fulfilled his obligations under former Section 306(a.2) of
the Act, formerly 77 P.S. § 511.2,7 where the physician-evaluator, in calculating the
6
Our review in a workers’ compensation appeal is limited to determining whether an error
of law was committed, whether constitutional rights were violated, or whether necessary findings
of fact are supported by substantial evidence. Universal Am-Can, Ltd. v. Workers’ Compensation
Appeal Board (Minteer), 762 A.2d 328, 331 n.2 (Pa. 2000).
7
Former Section 306(a.2), added by the Act of June 24, 1996, P.L. 350, and repealed by
the Act of October 24, 2018, P.L. 714, was stricken in its entirety in Protz v. Workers’
Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017), as an
unconstitutional delegation of legislative authority. The IRE provisions of former Section 306(a.2)
that are pertinent to this appeal were reenacted in Section 306(a.3) without substantial
modification.
8
claimant’s whole-person impairment rating, did not specifically consider the
claimant’s reported psychological conditions of adjustment disorder, depressed
mood, and chronic post-traumatic stress disorder. 152 A.3d at 985, 987. The
physician-evaluator excluded those conditions from his impairment rating because
he did not have the requisite expertise to assess them and was not asked to do so. Id.
at 987.
The Supreme Court in Duffey II explained that former Section 306(a.2),
now Section 306(a.3), “explicitly invests in physician-evaluators the obligation to
‘determine the degree of impairment due to the compensable injury[.]’” 152 A.3d
at 989 (citing former Section 306(a.2), 77 P.S. § 511.2) (emphasis in original). “Per
such express terms, a physician-evaluator must consider and determine causality in
terms of whether any particular impairment is ‘due to’ the compensable injury.
[Formerly 77 P.S. § 511.2(1)]. Moreover, the required evaluation is of ‘the
percentage of permanent impairment of the whole body resulting from the
compensable injury.’” Id. (citing 77 P.S. § 511.2(8)(ii)) (emphasis in original). The
Court further noted:
We have no difference with the Commonwealth Court’s
reasonable holding that a notice of compensation payable
should define “compensable injury” for purposes of this
inquiry. Such recognition, however, simply does not
determine the range of impairments which may be “due
to” such injury. Under Section 306[(a.3)] and the
applicable impairment guidelines, the physician-evaluator
must exercise professional judgment to render appropriate
decisions concerning both causality and apportionment.
See id.; accord [AMA Guides] (“Physicians must use their
clinical knowledge, skills, and abilities to arrive at a
specific diagnosis; define the pathology; and rate
impairments based on the [AMA Guides’] criteria.”).
9
Id. The Court in Duffey II explained the specific defect in the physician-evaluator’s
IRE as follows:
Here, it is apparent from the record that the [p]hysician-
[e]valuator did not apply professional judgment to assess
(or, per the applicable regulations, [see, e.g., 34 Pa. Code
§ 123.105(b),] arrange for an assessment of) 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.
Id. at 990. The Court concluded that, “[i]n all events, the evaluative judgment is the
touchstone on these subjects, as well as on the topic of causality.” Id. at 991.
“[P]hysician-examiners 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 (citations and internal
quotations omitted).
More recently, in Sicilia I, a panel of this Court applied the Supreme
Court’s holding in Duffey II in considering whether a physician-evaluator properly
excluded certain diagnoses from the calculation of the claimant’s whole-person
impairment rating because the diagnoses were not included in the accepted
description of the claimant’s injuries. Sicilia I, 277 A.3d at 1215. In Sicilia I, the
employer filed a review petition seeking to reduce the claimant’s benefits status from
TTD to TPD based on an IRE evaluation that resulted in a whole-person impairment
rating of 23%. Id. The claimant’s injury description was established by stipulation
of the parties and included lumbar strain, left knee contusion, chronic pain
syndrome, and chronic adjustment disorder with anxiety and depression. Id. at 1214.
Although the physician-evaluator’s report noted additional diagnoses attributable to
10
the work injury, namely, lumbar disc protrusion or spondylolisthesis with lumbar
radiculopathy, the physician-evaluator limited her initial impairment rating to only
those diagnoses specifically included in the claimant’s injury description. Id. In her
initial report, the physician-evaluator rated the claimant’s impairment below 35%.
Id.
At the employer’s request, the physician-evaluator calculated a
supplemental impairment rating that included consideration of the additional
diagnoses. The physician-evaluator then issued an addendum report, which
indicated that including the additional diagnoses increased the claimant’s
impairment rating to greater than 35%. Id. at 1215-16. The WCJ in Sicilia I found
the physician-evaluator to be “credible” with regard to the initial impairment rating
and “not credible” as to the subsequent rating over 35% because the subsequent
rating was based on diagnoses not included in the injury description. Id. at 1216.
The WCJ accordingly reduced the claimant’s benefits status to TPD. Id. The Board
affirmed, and the claimant appealed to this Court arguing that Duffey II required
reversal.
We reversed the Board, concluding that, per Duffey II, an IRE
physician-evaluator may properly consider conditions or impairments not expressly
included in the claimant’s accepted or adjudicated injury description in calculating
a whole-person impairment rating. We reasoned:
[The e]mployer’s arguments, and the [Board]’s holdings,
boil down to an assertion that the decision of a WCJ
describing the injuries controls the IRE process. However,
[the e]mployer, and the [Board] and WCJ, did not cite (and
we cannot find) authority that such decisions have
preclusive effect on the IRE physician-evaluator. To the
contrary, Section 306(a.3)(1)—as elaborated in Duffey
II—places a great deal of discretion in the physician-
evaluator to determine what diagnoses are “due to” a
11
work-related injury, outside the ordinary modification
process.
....
[The physician-evaluator’s] initial IRE [r]eport and
related testimony indicate that she felt her rating was
constrained by the currently accepted diagnoses, thereby
excluding lumbar protrusion or spondylolisthesis with
lumbar radiculopathy, which [she attributed to the
claimant’s work-related injuries]. Thus, the physician-
evaluator misapprehended her responsibility as a
physician-evaluator in her initial calculation of [the
c]laimant’s whole[-]person impairment rating. . . . At all
events, although the WCJ had authority as factfinder to
make credibility determinations, such determinations
must be based upon competent evidence. . . . The WCJ’s
reasoning for rejecting [the physician-evaluator’s]
testimony concerning the additional diagnoses, and the
higher 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 an IRE physician-evaluator. The only reason
proffered for discrediting the additional diagnoses was
that they had not been previously found by other WCJs.
Simply put, the WCJ erred as a matter of law in
constraining the IRE review solely to the earlier accepted
descriptions of [the c]laimant’s work injuries.
Id. at 1218-19 (citations, quotations, and footnote omitted). We accordingly
reversed the Board and remanded for reinstatement of TTD. Id. at 1219.
An evenly-divided Supreme Court affirmed by per curiam order. See
Sicilia II, 318 A.3d at 803. Justice Donohue, in an Opinion in Support of Affirmance
(OISA) joined by Justices Dougherty and Mundy, concluded that this Court properly
applied Duffey II to determine that an IRE physician-evaluator is permitted to
consider and rate diagnoses not included in an accepted injury description that
nevertheless are “due to” the compensable injury. Id. The OISA discussed Duffey
II and noted that the terms “injury” and “impairment” must not be conflated in
12
conducting the impairment rating analysis. In this regard, the OISA emphasized
that, although an injury description defines the compensable injury, such description
simply does not determine the range of impairments that may be due to the injury.
Id. at 804-05. The OISA further agreed with this Court’s determination that the
WCJ did not, in reality, reject the physician-evaluator’s addendum report based on
a credibility assessment, but, rather, made an “incorrect legal determination that
additional diagnoses could not be considered during an IRE if those diagnoses were
not specifically identified as injuries in the [injury description].” Id. at 807. The
OISA interpreted Duffey II to hold that “some conditions . . . can be impairments
under the statutory scheme defining the IRE process despite not being defined as
compensable injuries” and that, regardless of whether a condition could have been
added by amendment of the injury description, the description in any event does not
“fully circumscribe the range of impairments that a physician-evaluator must
consider.” Id. at 809.8
In a brief Opinion in Support of Reversal (OISR), Justice Wecht
concluded that Duffey II erroneously authorizes IRE physician-evaluators to
consider and rate compensable injuries beyond those listed in the injury description,
and for that reason, was wrongly decided and should be overturned. Id. at 811-12.
See also id. at 813 (Duffey II mistakenly “took away the authority of WCJs to define
the claimant’s compensable injury” and “gave physician[-]evaluators permission to
make a de novo assessment of the claimant’s ‘compensable injury’ at every single
IRE”). Justice Wecht’s OISR was not joined by any other Justices.
8
Justice Donohue’s OISA ultimately concluded that this Court erred in remanding for the
reinstatement of TTD without requiring further action by the WCJ. Justice Donohue would have
remanded for the reinstatement of TTD pending the WCJ’s performance of actual credibility
determinations regarding the physician-evaluator’s opinions and testimony. Id. at 811.
13
Justice Brobson also authored an OISR, joined by Justice Todd, in
which he concluded that this Court improperly expanded the holding in Duffey II,
which should be limited to cases 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 the scope of the work-
related injury had changed.” Id. at 827. Thus, although Justice Brobson would
interpret Duffey II to permit an IRE physician-evaluator to consider diagnoses
reported by the claimant but not included in the injury description in calculating a
whole-person impairment rating, he also would interpret Duffey II to preclude a WCJ
from relying upon such an impairment rating unless the claimant presents expert
medical testimony that would permit amendment of the injury description to include
those additional diagnoses. Id. at 827-28. Because the claimant in Sicilia I did not
present his own medical evidence and relied exclusively on the IRE physician-
evaluator’s testimony and opinions, Justice Brobson would conclude that the WCJ
properly rejected as not credible the opinions contained in the physician-evaluator’s
addendum report. Id.
C. Analysis
Here, although its argument is not entirely consistent throughout its
brief, Employer chiefly argues that the Board’s decision must be reversed because
(1) IRE physician-evaluators cannot be expected to determine the nature and extent
of a work injury; (2) in any event, both Duffey II and Sicilia I are distinguishable;
and (3) WCJ Timme’s findings regarding Dr. Fried’s testimony were arbitrary and
capricious in that Dr. Fried was not inconsistent in testifying that he considered
Claimant’s subjective complaints but nevertheless did not include them in his
calculation of Claimant’s whole-person impairment rating. We disagree on all
counts.
14
We begin by emphasizing that, given the nature of the Supreme Court’s
affirmance in Sicilia II, we must apply the holding of Duffey II as we interpreted it
in Sicilia I. That is, we understand Duffey II to require IRE physician-evaluators,
pursuant to Section 306(a.3) of the Act, to consider all impairments that are “due to”
a claimant’s work-related injury in calculating a whole-person impairment rating,
which impairments may include ones not specifically named in the injury
description. Rejecting a physician-evaluator’s opinions and testimony exclusively
on the ground that he or she considered impairments not included in the injury
description therefore is error as a matter of law. Sicilia I. Further, Duffey II and
Sicilia I do not expressly require a claimant to either present expert medical
testimony or seek amendment of an injury description before a WCJ may consider
and credit an impairment rating based on impairments dehors the injury description.9
Here, WCJ Timme rejected Dr. Fried’s testimony on the ground that Dr. Fried
declined to include Claimant’s additional conditions in the impairment rating
calculation specifically because they were not included in the injury description.
Pursuant to Duffey II and Sicilia I, which we find to be applicable and controlling,
Dr. Fried’s opinions and testimony were legally deficient in this regard, and WCJ
Timme did not err in rejecting them.
Regarding WCJ Timme’s findings, we note first that Employer’s
refrain throughout its brief that Claimant’s complained-of conditions were “wholly
unrelated” to his work injury is inaccurate. There are no findings anywhere in the
record to that effect, and Dr. Fried did not testify as such. Instead, Dr. Fried
acknowledged that the conditions reasonably could be caused by Claimant’s low
back injury and were consistent with it. He further testified and indicated in his
9
Although we acknowledge that Justice Brobson’s OISR in Sicilia II concluded to the
contrary in this respect, we are constrained to apply Duffey II and Sicilia I as they thus far have
been controllingly interpreted.
15
report that he did not include the conditions in his whole-person impairment rating
because they were not part of Claimant’s injury description and he did not have a
physician workup on them. Although it is apparent that Dr. Fried sincerely
attempted to “go by the rules” in limiting his IRE evaluation to a “conservative”
rating of Claimant’s conditions, under Duffey II and Sicilia I, we must conclude that
his failure to adequately consider these conditions and render opinions as to whether
they were “due to,” or caused by, Claimant’s work injury was in error.
WCJ Timme found that Dr. Fried’s opinions regarding Claimant’s
conditions were inconsistent and not competent or credible. In Sicilia I, we
concluded that the appropriate scope of a physician-evaluator’s discretion in
conducting an IRE review under Section 306(a.3) of the Act was a question of law.
Sicilia I, 277 A.3d at 1219. Thus, whether WCJ Timme appropriately rejected Dr.
Fried’s testimony based on his misapprehension of his obligations under Section
306(a.3) of the Act most appropriately is described as a determination of whether
the WCJ Timme erred as a matter of law. Because WCJ Timme correctly found that
Dr. Fried’s opinions did not adequately consider Claimant’s conditions under Duffey
II and Sicilia I, there was no error of law, and the associated findings of fact were
neither arbitrary nor capricious.
IV. CONCLUSION
The Board concluded that, under Duffey II and Sicilia I, WCJ Timme’s
findings were not arbitrary and capricious because Dr. Fried’s impairment rating did
not adequately consider, or make any causation determinations regarding, the
subjective conditions Claimant reported during his physical examination. We must
agree. It is undisputed in the record that (1) Claimant reported the conditions to Dr.
Fried, (2) Dr. Fried opined that each of the conditions at least reasonably could be
16
“due to” Claimant’s lower back injury,10 and (3) Dr. Fried nevertheless did not
consider the conditions in his whole-person impairment rating specifically because
they were not part of Claimant’s work injury description. We accordingly affirm
the Board.
________________________________
PATRICIA A. McCULLOUGH, Judge
10
To the extent that Dr. Fried’s opinions in this regard could be construed as opinions on
causation, they would only further support the inclusion of Claimant’s additional conditions in the
calculus of the whole-person impairment rating.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
: No. 1190 C.D. 2023
v. :
:
Lamont Turner (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 17th day of October, 2024, the October 6, 2023 Order
of the Workers’ Compensation Appeal Board is hereby AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Philadelphia, :
Petitioner :
:
v. : No. 1190 C.D. 2023
: Argued: June 4, 2024
Lamont Turner (Workers’ :
Compensation Appeal Board), :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MATTHEW S. WOLF, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
CONCURRING OPINION
BY SENIOR JUDGE LEAVITT FILED: October 17, 2024
The majority affirms the adjudication of the Workers’ Compensation
Appeal Board (Board) denying the City of Philadelphia’s (Employer) modification
petition. In doing so, the Board reasoned that Sicilia v. API Roofers Advantage
Program (Workers’ Compensation Appeal Board), 277 A.3d 1213 (Pa. Cmwlth.
2022) (Sicilia I), aff’d, 318 A.3d 803 (Pa. 2024) (Sicilia II), and Duffey v. Workers’
Compensation Appeal Board (Trola-dyne, Inc.), 152 A.3d 984 (Pa. 2017) (Duffey II),
required this result. I concur in the majority’s decision to affirm the Board and write
separately to highlight the need for Duffey II to be reconsidered.
Employer filed a modification petition to revise Lamont Turner’s
(Claimant) workers’ compensation disability status from total temporary to partial
temporary. In support, Employer presented the testimony of Dr. Guy Fried, who
performed an impairment rating evaluation (IRE) of Claimant and calculated his
whole-person impairment rating at 31%, based upon Claimant’s adjudicated work
injury to his lumbar spine and his radiculopathy.1 Dr. Fried did not include
Claimant’s complaints about depression, anxiety, urinary incontinence, or weight
gain in his impairment evaluation. Nevertheless, Dr. Fried stated that his impairment
rating considered Claimant’s subjective complaints, as well as Claimant’s physical
examination and medical records.
The Board affirmed the decision of the Workers’ Compensation Judge
(WCJ) to discredit Dr. Fried’s testimony. Citing Sicilia I, 277 A.3d at 1217-18, the
WCJ explained that Dr. Fried “misapprehended” the discretion afforded to an IRE
physician under Section 306(a.3) of the Workers’ Compensation Act (Act)2 to
“exercise professional judgment to render appropriate decisions concerning both
causality and apportionment.” WCJ Decision, 1/23/2023, at 6, Finding of Fact No.
4. Accordingly, Dr. Fried’s misapprehension of the Act rendered his testimony
internally inconsistent and, thus, incompetent. Id.
In Duffey II, our Supreme Court construed former Section 306(a.2)(1)
of the Act3 to mean that the IRE physician-evaluator must consider not only the
1
Prior to the instant proceeding, Claimant was determined to be fully recovered from the work-
related injuries to his left hip, left knee, and feet.
2
Act of June 2, 1915, P.L. 736, as amended, added by the Act of October 24, 2018, P.L. 714, No.
111 (Act 111), 77 P.S. §511.3(a.3).
3
Added by Section 4 of the Act of June 24, 1996, P.L. 350, formerly 77 P.S. §511.2(1). At the time
of the decision in Duffey II, former Section 306(a.2)(2) of the Act, formerly 77 P.S. §511.2(2),
provided for modification of a claimant’s indemnity benefits, from total to partial disability, when
a claimant was shown to have a whole-body impairment rating of less than 50%. Subsequently,
our Supreme Court struck down former Section 306(a.2) in its entirety as an unconstitutional
delegation of legislative authority (see Protz v. Workers’ Compensation Appeal Board (Derry Area
School District), 161 A.3d 827 (Pa. 2017)), and the General Assembly passed Act 111, which
repealed former Section 306(a.2) and added Section 306(a.3) to the Act, 77 P.S. §511.3. Among
other things, Section 306(a.3) provides for modification of a claimant’s indemnity benefits, from
total to partial disability, when a claimant is shown to have a whole-body impairment rating of less
than 35%.
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adjudicated work injuries but other medical conditions known at the time of the IRE,
regardless of whether those other conditions have been adjudicated as work related.
The Supreme Court explained that former Section 306(a.2)(1) “explicitly invests in
physician-evaluators the obligation to ‘determine the degree of impairment due to
the compensable injury.’” Duffey II, 152 A.3d at 989 (quoting formerly 77 P.S.
§511.2(1)). “Per such express terms, a physician-evaluator must consider and
determine causality in terms of whether any particular impairment is ‘due to’ the
compensable injury. . . . Moreover, the required evaluation is of ‘the percentage of
permanent impairment of the whole body resulting from the compensable injury.’”
Duffey II, 152 A.3d at 989 (quoting former Section 306(a.2)(8)(ii) of the Act,
formerly 77 P.S. §511.2(8)(ii)) (emphasis in original).
Following Duffey II, this Court decided Sicilia I, where the IRE
physician did two impairment evaluations: one that was limited to the claimant’s
adjudicated work injury and a second that considered the claimant’s allegation that
his work injury included spondylolisthesis. The WCJ credited the first evaluation
and rejected the second as incredible. This Court held that the WCJ’s decision to
reject the second evaluation was not a credibility determination but, rather, the result
of a “misapprehension” of the Act. Sicilia I, 277 A.3d at 1219. The dissent, by
contrast, would have deferred to the WCJ’s credibility decision. Sicilia I, 277 A.3d
at 1119 (Leavitt, J., dissenting).
On further appeal, an evenly divided Supreme Court affirmed.4 Sicilia
II, 318 A.3d 803. Justice Donohue, joined by Justices Dougherty and Mundy, would
4
Where the opinion of the Supreme Court is evenly divided, the judgment of the lower court is
affirmed; however, the divided opinion does not furnish a precedent. See Commonwealth v. Orr,
255 A.3d 589, 596 (Pa. Super. 2021).
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affirm this Court insofar as it correctly applied Duffey II but would remand the matter
to the WCJ for a new credibility determination.
Justice Wecht would reverse this Court and overturn Duffey II. In his
view, Duffey II cannot be reconciled with the Act because it deprived the WCJ of the
exclusive authority to define the claimant’s compensable injury. Sicilia II, 318 A.3d
at 812.
Justice Brobson, joined by Chief Justice Todd, would reverse this Court
on the grounds that this Court impermissibly expanded the reach of Duffey II and,
then, substituted its assessment of witness credibility for that of the WCJ. In Justice
Brobson’s view, Duffey II should be limited to its “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
[Notice of Temporary Compensation Payable (NTCP)/Notice of Compensation
Payable (NCP)] was issued or that the scope of the work-related injury had
changed.” Sicilia II, 318 A.3d at 827. By contrast, the claimant in Sicilia I did not
produce any medical evidence to establish that he suffered a spondylolisthesis or that
it was work related.
Here, Employer argues that Duffey II is distinguishable and should be
limited to its facts. Unlike the claimant in Duffey II, who filed a review petition
seeking to amend the description of his work-related injury, here, Claimant did not
seek to expand his work injury to include depression, anxiety, incontinence, and
weight gain. Claimant presented no medical evidence to establish the existence of
those diagnoses, let alone evidence that they would have made Claimant’s
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impairment rating greater than 35%. Employer makes good points, but they did not
prevail in Sicilia II.
Employer also argues that the WCJ’s stated reason for not crediting Dr.
Fried’s opinion does not hold up to close scrutiny. Dr. Fried did not ignore
Claimant’s anxiety and weight gain, but he did not include them in his impairment
evaluation. On this basis, the WCJ found his testimony inconsistent. However, it is
equally possible, as Employer argues, that Dr. Fried found that Claimant’s
complaints were not due to his compensable injury and, thus, did not include them
in his impairment evaluation.
In his deposition, Dr. Fried testified that he did not rate Claimant’s
complaints of depression, anxiety, and weight gain. Dr. Fried explained that they
were “not listed in the [Workers’ Compensation Automation and Integration
System]. [They were] not listed by Dr. Young. It was not my understanding that
[they were] accepted as the injury, so I am trying to go by the rules.” Fried Dep. at
16. Based on this testimony, the WCJ found that Dr. Fried misapprehended the
discretion accorded an IRE physician-evaluator under Section 306(a.3) of the Act,
and his misapprehension rendered his testimony internally inconsistent.
However, it would have been virtually impossible for Dr. Fried to rate
Claimant’s subjective complaints. A review of Dr. Fried’s testimony explains this
point.
To calculate Claimant’s whole-person impairment, Dr. Fried first had
to determine that Claimant had reached “maximum medical improvement” with
regard to his compensable injury, which is “a point at which a condition is stabilized
and there’s unlikely a change, improved or worsened, substantially in the next year
with or without treatment.” Fried Dep. at 13. Dr. Fried then turned to the Sixth
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Edition of the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (AMA Guides). Claimant’s disc herniation “was best rated
as a Class 4,” which the AMA Guides define as “the intervertebral disc herniation at
multiple levels with medically documented findings with or without surgery and with
residual multilevel radiculopathy at the appropriate levels.” Id. at 15 (emphasis
added). This assigned Claimant a 29% of the whole-person impairment. Dr. Fried
then considered Claimant’s “adjustment grid values” taken into consideration of his
“pain and symptoms at rest,” his “positive straight leg raise with reproducible
radicular pain and findings,” and his “clinical studies.” Id. at 15-16. This moved
Claimant’s “grid shift” from 29% to 31%. Id. at 16. Dr. Fried testified that in
conducting the IRE, he assigned Claimant the “higher percentage” because “[y]ou
always give the patient the benefit of the doubt.” Id. at 14.
Without any documented medical findings on Claimant’s complaints of
depression, anxiety, weight gain, and incontinence, Dr. Fried could not determine if
Claimant has reached maximum medical improvement. Nor could he undertake a
rating of them under the AMA Guides, which requires medical evidence to assign a
“class” and “grid shift” to arrive at a percentage impairment.
As observed by the Chairman of the Board, Alfonso Frioni, Jr., it
“should not be the job of the IRE physician to ferret out what conditions may be
attributable to the compensable injury based on comments made by the claimant
during the IRE.” Board Adjudication, 10/6/2023, Concurring Opinion at 3. This is,
nevertheless, the current state of the law: the IRE physician must decide whether a
complaint brought to his attention by the claimant is “fairly attributable” to the
claimant’s compensable injury. Duffey II, 152 A.3d at 990. It also means that where,
as in this case, there are no medical records to support the claimant’s “comments,”
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the IRE is over because without a medical diagnosis and record of treatment, the IRE
physician cannot undertake the threshold step of determining maximum medical
improvement.
The Act requires the WCJ to define and, where appropriate, expand the
scope of a compensable work injury. See Section 413(a) of the Act, 77 P.S. §772
(providing that the WCJ may modify an NCP upon proof that a claimant’s disability
has increased). The sole purpose of the IRE is to determine the claimant’s disability
status after maximum medical improvement from the adjudicated work-related
injury. The Act defines “impairment” as an “anatomic or functional abnormality or
loss that results from the compensable injury and is reasonably presumed to be
permanent.” Section 306(a.3)(8)(i) of the Act, 77 P.S. §511.3(8)(i) (emphasis
added). It is a contradiction in terms to use the IRE to restate the compensable work
injury that is presumed permanent.
The General Assembly intended that the nature and scope of a
compensable work injury be proved by the claimant and in accordance with the Act’s
orderly procedures. The extent of the claimant’s disability resulting from the
compensable injury is a separate inquiry, which is the focus of the IRE provisions in
the Act. Duffey II blurs the distinction between defining a work injury and
determining the impact of that work injury upon the claimant’s earning power.
Duffey II should be revisited.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
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