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Hilyer v. WCAB (Jos. T. Pastrill Jr. Logging) 2004 Pa. Commw. Lexis 308
Decided 4/21/04

The Commonwealth Court interpreted the clear language of the 1996 Act 57 Impairment Rating Evaluation (IRE) provisions, Section 306 (a.2), to allow the employer/insurer to request an IRE, two times during a twelve (12) month period. The statutory construction review was rather straight forward. The statutory language specifically allows two IRE’S within the timeframe requested by defendant.

See: Section 306 (a.2) (6).

The underlying facts make this case somewhat more interesting, as they reflect the posturing we may anticipate as the parties acclimate to these "new" procedures. Claimant sustained a spinal injury in the course of his logging duties. The first IRE resulted in an impairment rating of 55%. [Note: this was performed 4 years 2 weeks, after the date of injury, however the "Gardner" argument was not raised on appeal].

Employer requested a second IRE, based upon the belief that non-occupational factors were considered in the initial examination. Claimant argued that Employer must demonstrate a change in claimant’s impairment status, before it would be entitled to a second IRE. As this "requirement" is not required by the Act, the court rejected this argument.

PRACTICE POINTER: Carefully review the IRE report to determine if further consideration is indicated. For an initial request, confirm the 104th week of total disability, so that your request is made within 60 days as required by the Gardner decision.

NOTE: On March 17, 2004, the Pa Supreme Court GRANTED Employer’s appeal of the Commonwealth Court ruling in Gardner.