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Gardner v. WCAB (Genesis Health Ventures)

The Supreme Court of Pennsylvania addressed questions arising in the interpretation of the Impairment Rating Evaluation (IRE) provisions of the Act 57 amendments of 1996. "Gardner" involved the timeliness of an IRE request. The "Rider" case was consolidated as it raised a similar issue.

The facts are not disputed. Gardner was injured at work on 10/2/96. As of 10/2/98 she had received 104 weeks of total disability benefits. On 6/13/02, Insurer made a request for claimant to attend an IRE. The WCJ agreed with claimant's position and denied the Insurer's examination request as untimely. The WCAB reversed, interpreting the statute to allow a subsequent IRE, however the remedy would not relate back to the 104th week. The Commonwealth Court, held the statutory language was clear and free from any ambiguity, the time parameters were mandatory and failure to request a timely IRE, was a waiver of the "automatic" remedy at Section 306 (a.2) (1), 77 P.S. 511.2(1). The Insurer may pursue the remedy of a medical examination to modify benefits pursuant to Section _, 77 P.S. 651.

The facts in "Rider" addressed the term "receipt" of the 104 weeks of total disability benefits, in the context of a disputed claim, where the 104th week occurred during the appeals process. The Commonwealth Court allowed an IRE within 60 days of the final WCJ order, in the remanded petition.

The Supreme Court reversed the Rider decision. Claimant was paid TTD benefits during the appeals process, as the WCAB denied the insurer's supersedeas request as to all benefit payments, except the assessment of counsel fees. Therefore the IRE must be scheduled within 60 days of the claimant's "receipt" of 104 weeks of TTD benefits. "Receipt" was the date of payment after the supersedeas denial. The alternative definitions of "receipt" were rejected.

In Gardner, the Supreme Court engaged in a statutory construction analysis of the meaning of the language describing the IRE remedy. FIRST, the statute says "shall". This is a term for mandatory application of these provisions. This is unambiguous, arguments to the contrary were rejected.

The Supreme Court found the Bureau regulations were inconsistent with the statutory language, where they suggest the failure to comply with the time deadlines "may not result in a waiver" [reg 123.102(f)] and suggest an IRE will relate back in some circumstance but not in others. [reg 123.102(a).].

The Court concluded, once claimant "receives", comes into possession of 104 weeks of TTD benefits, the insurer has 60 days from that date, IN WHICH IT MUST REQUEST claimant submit to an IRE. An insurer's failure to do so, precludes utilizing the "automatic relief" provided by subsection 306(a.2), 77 P.S. 511.2(2).

THIS DOES NOT PRECLUDE THE INSURER FROM REQUESTING THAT CLAIMANT SUBMIT TO AN IRE PURSUANT TO SECTION 77 P.S. 511(6). This relief is not "automatic". the insurer must pursue the "traditional administrative process", i.e., file a petition.

PRACTICE POINTER: Carefully diary all injury cases for the anniversary of the claimant's receipt of 104 weeks of TTD benefits. Remember, an IRE is not appropriate in all cases, however, you want to preserve your rights to have this remedy available in your claims handling.

ALSO review cases where you are challenging disability/ liability. The 104th week of TTD may be paid as a result of an appellate order, or as a result of a supersedeas denial. In these circumstances, you have 60 days to make a request.