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Much ink has been spilled over the Commonwealth Court case of Gardner v. WCAB (Genesis Health Ventures), No. 1923 C.D. 2002 (Pa. Commw., Jan. 15, 2003). As most workers’ compensation practitioners know, the Gardner court held that an employer’s failure to request an impairment rating evaluation within 60 days of the expiration of the receipt of 104 weeks of temporary total disability benefits is a bar to seeking an IRE altogether under Section 306(a.2) of the act. This ruling was significant since Section 306(a.2) provides that an IRE can serve to convert the status of a claimant’s benefits from total to partial in nature, without altering the amount of compensation owed, in the event an injured worker’s “whole person impairment” pursuant to the IRE was less than 50 percent according to the AMA Guides. Although Gardner was clearly a victory for the claimants’ bar, the scope appeared to be limited, since the underlying petition was to compel a physical examination or expert interview. Certainly, following Gardner, subsequent requests for IREs outside the 60-day window would be precluded, but Gardner did not speak to an IRE that had already been performed pursuant to an untimely request. If Gardner evoked anxiety in the insurance industry, the recent Commonwealth Court decision of Dowhower v. WCAB (Capco Contracting), No. 1667 C.D. 2002 (Pa. Commw., May, 15, 2003), is certain to induce a full-blown panic attack. Whereas Gardner was silent with respect to existing untimely obtained IREs, Dowhower specifically holds that a claimant does not waive his challenge to the timeliness of an insurer’s IRE petition by actually attending the examination. In Dowhower, the claimant was injured at work on Sept. 13, 1996. On May 29, 1998, the claim was accepted via WCJ decision, which awarded temporary total disability benefits beginning April 18, 1997. Although the claimant had returned to work for a period of time, he later began receiving total disability benefits. On May 20, 1999, the employer filed a petition requesting the designation of a physician to perform an IRE in accordance with Section 306(a.2)(1) of the act. The petition alleged that the claimant had received total disability benefits for 104 weeks as of April 14, 1999. On July 21, 1999, the bureau appointed Dr. Si Van Do to perform the IRE. On Sept. 1, 1999, Van Do performed the initial IRE on the claimant and found an impairment rating of 10 percent. Because Van Do found an impairment rating of less than 50 percent, the employer filed a notice of change of workers’ compensation disability status on Oct. 1, 1999, requesting that the claimant’s total disability benefits be changed to partial disability. In an effort to retain his temporary total disability benefits, on Oct. 29, 1999, the claimant filed a petition to review compensation benefits, alleging that the timing of the insurer’s request for an IRE violated the act in that it was filed too early. The WCJ granted the claimant’s petition, finding that the 104 weeks of total disability expired on July 23, 1999, rather than April 14 1999, as alleged in the employer’s IRE petition. The WCJ concluded that Section 306(a.2)(1) of the act did not permit the employer to request the IRE until after expiration of the claimant’s 104 weeks of total disability. Because the employer filed its request prior to the expiration of the 104-week period, the WCJ found the request to be untimely and, therefore, invalid. The employer appealed the WCJ’s decision to the board, which reversed the WCJ’s decision, finding that there was no need to reach the merits of the issue because the claimant had already attended the IRE in question. As a result, the claimant took an appeal to the Commonwealth Court. Although the Commonwealth Court affirmed the board’s decision on different grounds, the court held that the board “erred in concluding that the claimant waived his challenge to the timeliness of the insurer’s IRE petition by attending the examination.” Therefore, the Commonwealth Court set the stage for what should prove to be a wave of petitions to review compensation benefits seeking to invalidate existing IREs that were not timely requested. In every case subject to an IRE with a finding of less than 50 percent “whole person impairment,” the claimant’s practitioner should check the timeliness of the initial IRE request. If the request was made after the 60-day window of opportunity following the initial payment of 104 weeks of temporary total disability benefits, the attorney should strongly consider filing a petition to review compensation benefits to have the IRE invalidated. The only instance where this course of action might not be advantageous is when posturing for a settlement or pursuing a contested commutation as previously outlined in this space. Given the fact that the IRE creates a legal certainty that the claimant’s disability is permanent as a matter of law, it might be better to keep that legal presumption in place. Irrespective of the side of the aisle on which you practice, Dowhower v. WCAB (Capco Contracting), No. 1667 C.D. 2002 (Pa. Commw., May, 13, 2003) has created an environment ripe for significant litigation. It would behoove practitioners on both sides to review existing IRE cases for timeliness issues and implement a strategy accordingly. (Copies of the 12-page opinion in Dowhower v. WCAB (Capco Contracting ), PICS NO. 03-0717, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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