PENNSYLVANIA SUPREME COURT ISSUES DECISION
SUGGESTING A LATE REQUEST FOR AN IRE IS NOT FATAL

On December 28, 2005 the Pennsylvania Supreme Court issued a decision in the case of Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), No. 14 EAP 2005 addressing Impairment Rating Evaluations (IRE).

While the Supreme Court held that an IRE must be requested within the time frame set forth in the Workers’ Compensation Act for there to be automatic relief under the Act, the Court did leave the door open for insurers to request an “untimely” IRE and then litigate before a WCJ the issue of whether or not there should be a modification of benefits based on an IRE finding that the claimant had an impairment rating of less than 50%.

According to section 306(a.2)(1), 77 P.S. §511.2(1) when a claimant has received temporary total disability compensation for one hundred four (104) weeks, unless otherwise agreed upon, the claimant shall be required to submit to a medical examination within sixty (60) days of the expiration of the 104 week period to determine the degree of impairment caused by the work injury. (This impairment rating is to be determined by a qualified physician using the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment”).

The significance of obtaining an IRE under section 306(a.2)(1), 77 P.S. §511.2(1), is evidenced in the next section of the Act. According to section 306(a.2)(2), 77 P.S. §511.2 (2), if the impairment rating is less than 50%, then the claimant shall be considered partially disabled and would only be entitled to 500 weeks of benefits. Of course, there is no actual reduction of a claimant’s benefits based on an IRE but at least a cap is placed on the number of weeks that a claimant would be entitled to benefits.

As for Gardner, the claimant was injured on October 2, 1996. On June 13, 2001, the insurer requested that the claimant submit to an IRE pursuant to section 306(a.2)(1), 77 P.S. §511.2(1). The claimant refused to attend the IRE on the basis that it was not timely in that it was not requested within 60 days of the claimant’s receipt of 104 weeks of temporary total disability benefits. In light of the claimant’s refusal to attend the IRE, the insurer filed a Petition to Compel a Physical Exam requesting an Order directing the claimant to attend an IRE.

The WCJ denied the Petition to Compel a Physical Exam on that basis that it was not timely as the request for the IRE was not made within the 60 day period after the claimant’s receipt of 104 weeks of temporary total disability benefits. The insurer filed an appeal and the WCAB reversed, concluding that section 306(a.2)(1), 77 P.S. §511.2(1) was ambiguous.

After the WCAB issued its decision, the claimant appealed to Commonwealth Court. The Commonwealth Court issued a decision reversing the WCAB concluding that section 306(a.2)(1), 77 P.S. §511.2(1) was clear and free from ambiguity. The Commonwealth Court ultimately held that a request for an IRE must be made within 60 days of the claimant’s receipt of 104 weeks of temporary total disability benefits for the insurer to be entitled to an automatic reduction of benefits under section 306(a.2)(2), 77 P.S. §511.2 (2).

The insurer appealed to the Pennsylvania Supreme Court and in its decision in Gardner issued on December 28, 2005, the Supreme Court affirmed Commonwealth Court. Therefore, an IRE must be requested within 60 days of the date of the claimant’s receipt of 104 weeks of temporary total disability benefits for the purposes of obtaining the automatic relief set forth in section 306(a.2)(2), 77 P.S. §511.2(2).

While the Court’s holding in Gardner shows that an untimely request for an IRE would not allow for automatic relief, the Court does open the door for insurers to request an IRE after the expiration of the 60 day period discussed above. More specifically, the Supreme Court noted that section 306(a.2)(6), 77 P.S. §511.2(6) suggests that insurers may request the claimant to submit to an IRE, the results of which are not self-executing, but instead subject to the traditional administrative process. Thus, if the IRE is not requested within 60 days of the claimant’s receipt of 104 weeks of temporary total disability benefits, there can not an automatic modification of benefits from total to partial, but there may be a modification of benefits if an IRE establishes that the impairment is less than 50% and a WCJ later agrees.

The following examples should help illustrate this process. Assume that an IRE was not timely requested. The claimant is then asked to attend an IRE and actually attends the IRE. If the impairment is less than 50%, the insurer would then have to file a Petition to Modify and go through the litigation process and prove to a WCJ that the impairment was less than 50% and that the claimant was only entitled to partial disability benefits.

Assume once again, that an IRE was not timely requested and the claimant is asked to attend an IRE. This time the claimant refuses to attend the IRE. A Petition to Compel would then be filed and litigated before a WCJ. If the claimant is ordered to attend the IRE and the impairment is less than 50%, then the insurer would once again have to file a Petition to Modify and go through the litigation process and prove to a WCJ that the claimant was only entitled to partial disability benefits. This just demonstrates that if the claimant refuses to attend the IRE then another step is added to the litigation costs.

So, the Supreme Court’s recent decision in Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), certainly suggests that the automatic relief of section 306(a.2)(2), 77 P.S§511.2 (2) is not available if the IRE is not timely, but a modification of benefits based on an IRE may be available after the issue is litigated before a WCJ.