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The Pennsylvania Commonwealth Court en banc has unequivocally set forth an employer’s time limits for requesting that an injured employee undergo an independent impairment rating evaluation. That request must be filed within 60 days of the date of the expiration of the claimant’s standard 104 weeks of total disability benefits, the court said in Gardner v. Workers’ Compensation Appeal Board. Judge Rochelle S. Friedman authored the opinion for the majority. Only one judge, Judge Ren�e L. Cohn, dissented. The question in the case arises out of a conflict between two sections of the Workers’ Compensation Act. Section 306(a.2)(1) of the act states that an employer request for a medical exam must come within 60 days of the expiration of the standard 104 weeks of benefits. Section 306(a.2)(6), on the other hand, provides that, “upon request of the insurer,” the employee shall submit to an independent medical examination in accordance with Section 314 of the act, which allows the employer to request that the employee submit to a medical exam at “any time” after the injury. Friedman concluded that 306(a.2)(6) merely provides an exception to the general rule in subsection (a.2)(1), and that an employer can only request a medical exam at any time if the employer is not seeking an impairment rating evaluation. Annabelle R. Cedar and George E. Martin of Philadelphia’s Martin, Banks, Pond, Lehocky & Wilson represented the claimant, Barbara Gardner. Cedar said the decision is important because now “claimants will know definitely once the deadline passes, they won’t be subject to this type of exam.” Timothy P. Bulman of Del Collo & Mazzanti in Paoli, Pa., the employer’s counsel, said he is considering an appeal. “Because, we believe, there is an ambiguity regarding IREs in the Workers’ Compensation Act, the Workers’ Compensation Bureau’s regulations should be considered as well as the legislative intent regarding IREs,” Bulman said. “Our view is that it was the Legislature’s intent to provide efficiency in the workers’ compensation system. The unfortunate result of this decision is that it may lead to skyrocketing costs to insurers and many needless IREs to injured workers.” Gardner suffered a work-related injury in October 1996. She received the standard 104 weeks of temporary total disability benefits. In June 2001, her employer, Genesis Health Ventures, requested an independent impairment rating evaluation, but Gardner objected because the request was not made within 60 days from the date on which she received her benefits. Genesis filed a petition for physical examination or expert interview of Gardner. A workers’ compensation judge denied the petition, relying on § 306(a.2)(1). The Workers’ Compensation Appeal Board reversed, relying on 34 Pa. Code § 123.102(f), which states that an employer’s failure to make the request within the 60 days does not constitute a waiver of the employer’s right to compel an employee to attend an IRE. The WCAB also cited § 306(a.2)(6) of the WCA, which says that an employee should submit to an independent medical examination “upon request” of an employer in accordance with § 314 of the act. “Briefly, Section 314(a) of the act states that, at ‘any time’ after an injury, if so requested by an employer, an employee must submit at some reasonable time and place for a physical examination by an appropriate health care provider selected and paid for by the employer,” Friedman explained. In the court’s opinion on Gardner’s appeal, Friedman said § 306(a.2) outlines a special process for deciding whether a claimant who has used up the 104 weeks should continue receiving total disability benefits or begin receiving partial benefits. In order to make the determination, the degree of the claimant’s impairment is assessed under American Medical Association guidelines. The IRE process begins under the mandates of § 306(a.2)(1), Friedman said, which are “clear and unambiguous.” “There must be a request within 60 days of the 104-week period to trigger the IRE process,” Friedman said. “This means that, under Section 306(a.2)(6) of the act, when the insurer has initiated the procedure in a timely manner and has not obtained a claimant impairment rating less than [50 percent], the insurer may seek additional independent medical examinations under Section 314 of the act to obtain an IRE, but no more than two during a 12-month period.” Genesis had not made its request within the requisite time period, Friedman said, so it was precluded from seeking an IRE. With regard to the conflict between § § 306(a.2)(1) and 314(a) of the act, Friedman stated, “When a general provision is in conflict with a special provision in the same statute, and the conflict is irreconcilable, the special provision shall be construed as an exception to the general provision. … Thus, an employer may request a physical examination at ‘any time’ after an injury unless the employer is seeking an IRE, in which case the employer must initially request the examination within 60 days of the 104-week period.” In a dissenting opinion, Cohn said she believed the WCA provided for a second instance in which an employer can request an IRE. She referenced § 314′s use of the phrase “at any time.” “There is no indication that this broad provision is to be conditional upon an earlier request,” Cohn said. “To give effect to the broad language of Section 306(a.2)(6) of the act, an employer must be allowed to request the medical examination at any time, and the purpose of the examination can be, inter alia, to reassess the impairment rating, irrespective of how long it has been since the 104 weeks … have passed.” Cedar said the dissent “ignored the plain meaning of what the provision says, which is what the majority emphasized and has been emphasized in the Commonwealth Court.”

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