No Proof of Change of Condition is Necessary for Second IRE in a Twelve Month Period

In S. Hilyer v. WCAB (Joseph T. Pastill, Jr. Logging), the Commonwealth Court endorsed the Bureau's Regulation at 34 Pa. Code §123.102(g) which provides an Employer can have an IME (Independent Medical Exam) that comments on the status of the Claimant's impairment under the AMA Guides within the twelve months following the IRE (Impairment Rating Evaluation) provided for in §306(a.2)(1) of the Act.

The Court danced around the fact the Act only allows an IME to be held after the Employer's one shot at an IRE which must be conducted within sixty (60) days after 104 weeks of temporary total disability is paid. §306(a.2)(6) The Court allowed to stand the obfuscation of the regulation that states an Employer can have two IRE's in a twelve month period, when the statute clearly says IMEs.

The bottom line, however, is the Court properly read §306(a.2) in pari materia to provide that in an IME that takes place after an IRE is properly conducted, the examiner can review the status of the Claimant's impairment under the AMA Guides. The Court further held no prefatory showing of a change in condition is required by §306(a.2)(6).

Pennsylvania Workers' Compensation Practice and Procedure reference: 17.31