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Gardner v. W.C.A.B. (Genesis Health Ventures) 1923 C.D. 2002 (Cmwlth.Ct.)

Decision filed on January 15, 2003

I. PERTINENT CASE FACTS:The claimant sustained a work injury on October 2, 1996, and she immediately began receiving total disability benefits from the insurance carrier thereafter. As of October 2, 1998, the claimant had received two years, or 104 weeks, of temporary total disability benefits. The employer requested an Impairment Rating Evaluation (IRE) on June 13, 2001, almost three years after the claimant had received 104 weeks of TTD benefits. The claimant objected to the IRE and refused to attend this evaluation since the request was not made within sixty (60) days from the date she received 104 weeks of TTD benefits. Thereafter, the defendant/employer filed a Petition for Physical Examination or Expert Interview of Employee in an effort to force the claimant to attend the IRE.

The WCJ denied the defendant/employer's petition finding that the defendant/employer could only request an IRE within 60 days after the expiration of the 104 week payment of TTD benefits.The WCJ denied the defendant/employer's petition based on Section 306(a.2)(1) of the Act. Thereafter, the W.C.A.B. reversed the Judge's decision based on 34 Pa. Code 123.102(f). This Bureau regulation clearly states that "failure of a defendant/insurer to request an IRE within the 60 day period immediately following the claimant's receipt of 104 weeks of TTD benefits may not result in a waiver of the insurer's right to compel the employee's attendance at an IRE." The W.C.A.B. also cited Section 314(a) of the Act which notes that a claimant shall submit to an independent medical examination following a work injury as long as that claimant is not required to submit to more than two independent medical examinations during a one year time period. The claimant thereafter filed a Petition for Review with the Commonwealth Court.

II.CASE HOLDING:The Pennsylvania Commonwealth Court held that a claimant must be "requested" to attend the IRE by the insurance carrier within 60 days of the 104th week benefit payment date. The Commonwealth Court strictly and technically construed the terms of the Act in issuing this ruling. The Commonwealth Court further held that unless such a request is made within 60 days of the 104 week expiration date, the insurer forfeits its ability to ever schedule an IRE. It is only when an initial timely IRE is scheduled that the defendant/insurer may schedule additional future IRE's pursuant to Section 314 of the Act.

III.PRACTICAL HANDLING ADVICE: In light of the Commonwealth Court ruling in the this case, we certainly recommend that all cases where a claimant is receiving total disability benefits be diaried so that an IRE may potentially be "requested" within the 60 day time period immediately following the 104th week period of paying total disability benefits. The court states that the claimant must be "requested" to attend an IRE within 60 days, but it is recommended that an IRE physician actually be designated prior to the expiration of the 104 week total disability benefit period as an added precaution. An IRE should actually be scheduled for the claimant with a designated physician during this 60 window of opportunity. This added precaution is recommended in light of the ambiguous nature of the court's ruling in this case.

Obviously, not every case where a claimant receives TTD benefits for a 104 week time period is appropriate for the scheduling of an IRE. For example, in cases with less severe injuries where a Termination Petition is a distinct possibility, an IRE is not recommended. More specifically, IRE's are only recommended in cases where severe injuries are involved and where it is unlikely that a claimant will be able to return to the active workforce. It should be noted, however, that a successful outcome of the IRE procedure, which limits the claimant's receipt of TTD benefits to a 500 week period, does not preclude a defendant/insurer from thereafter scheduling an independent medical examination (IME) and pursuing suspension and/or modification relief.

*NOTE: No Petition for Allowance of Appeal has been filed with the Pennsylvania Supreme Court to date.