Wednesday, January 15, 2003

The Commonwealth Court has issued an en banc decision holding that an Employer's failure to request an IRE within sixty days of the expiration of 104 weeks of total disability benefits precludes the Employer from requesting an IRE outside the sixty-day period. In Gardner v. WCAB (Genesis Health Ventures) the Court stated the plain language of the Act requires the IRE to be requested within sixty days. Furthermore, to allow an IRE to be done at any time after the expiration of 104 weeks would render the plain language meaningless. Accordingly, the Court ruled the regulation at 34 Pa. Code §123.102(f) is invalid. One would think §123.102(g) is also invalid where the regulation again substitutes "IRE" in the place of "independent medical evaluation" as set forth in Section 306(a.2)(6) of the Act.

Judge Cohn issued a dissent pointing out that the majority's decision would preclude the Employer from getting a later independent medical evaluation under Section 306(a.2)(6) of the Act when the Employer fails to schedule an IRE in a timely manner. The purpose of such an exam would be to establish earning power in conjunction with a vocational opinion. Judge Cohn correctly points out that a Claimant may not have reached Maximum Medical Improvement within sixty days after expiration of the 104 weeks, and an Employer should not have to schedule a wasted exam to avail themselves of an independent medical examination under Section 306(a.2)(6) in the future. It is important to note, however, that Section 314 also provides for IMEs.

The more interesting issue touched upon by Judge Cohn's dissent is the tolling of the sixty day period where the Claimant has not reached MMI. The statute states the IRE must be in sixty days "unless otherwise agreed upon." The Claimant's agreement should be presumed as a matter of law where the Employer shows the Claimant had not reached MMI and the Employer then requests the IRE. Judge Cohn's point that the Employer should not have to schedule a wasted examination is most relevant in this context.

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