In a recent decision, the Pennsylvania Commonwealth Court required Workers Compensation insurers using the Impairment Rating Evaluation (IRE) tool to consider all injuries alleged by a Claimant’s physician even if some of those injuries were thought by its own physician expert to have been healed
An IRE is a tool available to insurance carriers in Pennsylvania, which allows the status of workers’ compensation benefits to be change from total disability to partial disability for a maximum of 500 weeks if the whole person impairment of the injured worker is found to be less than 35% pursuant to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (Second Printing April 2009).
In Del Val Home Improvements v. John Gaw (Workers’ Compensation Appeal Board), 1117 C.D. 2022 (March 19, 2025), Claimant suffered a work-related injury when he fell off a roof, landed on his feet and fractured his back, ankles, heels, pelvis and coccyx. A Notice of Compensation Payable (NCP) was issued and accepted for “injuries in the nature of lumbar, ankle, heels, pelvis, and coccyx fractures.” The insurer’s medical expert, Dr. Roy Lerman, found the whole person impairment of the injured worker was 30%. The insurer’s physician considered all injuries that he felt to be “due to” the work injury, but offered no rating for some of the injuries that he found had healed. The injured worker also presented expert testimony from a physician, Dr. William Murphy, who determined the whole person impairment was 41%, which was above the 35% threshold. In addition to not believing that some of the Claimant’s injuries had healed, Dr. Murphy provided ratings for injuries to the Claimant’s neck and the hip. After considering the evidence, the Workers’ Compensation Judge (WCJ) found the insurance carrier’s physician was more credible, which led to the Modification Petition being granted.
On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the Decision of the WCJ. The WCAB determined that the WCJ erred and emphasized that an IRE must consider all conditions “due to” the work injury, whether formally accepted or not.
The Commonwealth Court of Pennsylvania affirmed the Order of the WCAB, but also remanded the matter to the WCJ for additional findings of fact. The Commonwealth Court noted that an IRE may be rendered invalid if the physician evaluator limits his rating solely to the accepted injuries rather than including all conditions that were fairly attributable to the compensable injury. The Court determined that it was an error of law for a physician evaluator to misapprehend the discretion afforded to him in the IRE process and to consequently exclude impairments due to the claimant’s work-related injury, which were not described in the NCP, or to fail to consider an otherwise accepted injury. Therefore, if the parties present conflicting medical expert opinions regarding the impairment rating, the WCJ must consider the testimony of both doctors and resolve any differences in the varying whole person impairment ratings regardless of whether or not those differences were solely limited to the accepted work injury.
Zachary M. Rubinich is a partner in our Philadelphia office. He focuses his practice on the defense of insurance carriers, self-insured entities and third-party administrators against workers’ compensation claims in Pennsylvania. Based on his extensive experience, the Pennsylvania Bar Association Workers’ Compensation Law Section has certified him as Specialist in the practice of workers’ compensation law Zach has handled all aspects of litigation before workers’ compensation judges, the Workers’ Compensation Appeal Board, the Commonwealth Court and the Pennsylvania Supreme Court. Zach has been appointed to the following American Bar Association Tort Trial and Insurance Practice (TIPS) leadership positions: Chair of the Litigation and Trial Practice Committee; Vice-Chair of the Appellate Advocacy Committee; member of the Ethics and Professionalism Standing Committee; and member of the CLE Board Committee. He is the Past Chair of the ABA’s Tort Trial and Insurance Practice (TIPS) Workers’ Compensation and Employers’ Liability Law Committee from 2018-2019. He has served as a Vice-Chair of this committee from 2015 to present. In addition, Zach served as Vice-Chair of the 2017-2018 American Bar Association Standing Committee for Diversity and Inclusion. He is also a Committee Member of the ABA’s Legal Opportunity Scholarship Fund. Zach has been rated AV Preeminent by Martindale-Hubbell for the thirteenth consecutive year for 2025. He has been selected as a 2019, 2020 and 2021 Pennsylvania Super Lawyer by Super Lawyers. He was selected as a Pennsylvania Rising Star by Super Lawyers from 2010 to 2014. He was selected as an International Advisory Experts (IAE) Award recipient in 2019 for his accomplishments as a workers’ compensation attorney in Pennsylvania. Zach has been selected as a Fellow of the College of Workers’ Compensation Lawyers Class of 2020. Mr. Rubinich has been recognized as a Main Line Today 2023 and 2024 Top Lawyer.
Zach can be reached directly at (215) 575-4340 (office) or (215) 478-5053 (cell) zrubinich@rawle.com
Workers’ Compensation Section
CHAIR: Claudio J. DiPaolo
PARTNERS: Zachary M. Rubinich, J. Brendan O’Brien, Christian M. Stein, Jennifer Schwartz, Anisha S. Abraham
OF COUNSEL: James Curry, Daniel Spafford, William Copetas, Edward J. Chiodo, Anthony Lategano
ASSOCIATES: Mary Bergmann, Andrew Patrick, John Taylor
Rawle & Henderson LLP
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