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Evaluating a change in a claimant’s disability status was fairly simple in the days before Act 57 was enacted: employers obtained an Independent Medical Examination (IME), of which they were allowed two per 12-month period. Of course, issues arose with respect to IMEs; however, as far as the timing and how many, it was fairly straightforward. Fast forward to today, and the waters have been muddied a bit. Employers now have two methods of determining the extent of a claimant’s disability: the IME and the Impairment Rating Evaluation (IRE). The IRE, brought into being by Act 57, has been a misunderstood and litigated creature. Section 306(a.2) of the Workers’ Compensation Act, 77 P.S. Section 511.2, sets forth the specific requirements for IREs. Basically, Section 306(a.2) allows an employer, within 60 days after a claimant has received total disability compensation benefits for a period of 104 weeks, to request that a claimant submit to a medical examination by a physician chosen by agreement of the parties or as designated by the department in order to determine the degree of a claimant’s impairment due to his work-related injury (impairment rating), if any. If the impairment rating is equal to or greater than 50 percent, then the claimant shall be presumed to be totally disabled and shall continue to receive total disability compensation benefits, which shall continue until it is adjudicated or agreed that total disability has ceased or the claimant’s condition improves to an impairment rating less than 50 percent. Section 306(a.2)(6) governs IMEs. IMEs can probably best be described as the IRE’s simpler, yet older, counterpart. Any generally qualified physician can perform IMEs; his or her specific qualifications go only to credibility before the WCJ. Once an injury has been accepted, an employer is entitled to two IMEs in any 12-month period. An IRE has strict time constraints; it must be initially requested within 60 days of the expiration of 104 weeks of disability. An employer can wait three years between IMEs if it wants to, but an employer who does not request an IRE within that 60-day window is forever barred from seeking one. An IME can be the basis of a modification, suspension or termination petition, but only an IRE, performed in accordance with the strictures of the act, can be the basis of a modification based upon an impairment rating. In Douglas Lewis v. WCAB (Wal-Mart Stores Inc. and Claims Management Inc.), the Commonwealth Court of Pennsylvania tackled the following issues: Whether an employer was able to obtain a second IRE without making a showing that the status of a claimant’s disability had changed sufficiently to rebut the presumption of continuing disability; and whether an employer was able to unilaterally designate its choice of physicians to perform a second IRE. Douglas Lewis was injured in the course and scope of his employment with Wal-Mart Inc. on March 1, 1999. The employer filed a notice of compensation payable acknowledging the claimant’s work-related injury as an aggravation of pre-existing degenerative disc disease and, pursuant to same, claimant began to receive workers’ compensation benefits. On Aug. 22, 2002, employer filed a petition for physical examination requesting that claimant undergo an IRE pursuant to Section 306(a.2) of the Act. Following hearings on the matter, the WCJ found that the claimant had undergone an initial IRE, at employer’s request, on Jan. 8, 2002. That IRE resulted in a determination of claimant’s whole person impairment of 53 percent. In addition, the WCJ, citing the decision of the Commonwealth Court in Gardner v. WCAB (Genesis Health Ventures), found that employer’s request for a second IRE was untimely because it was not made within 60 days of the expiration of claimant’s receipt of 104 weeks of temporary total disability benefits and, therefore, precluded. Based upon these findings, the WCJ denied the employer’s physical examination petition. The employer appealed this decision to the workers’ compensation appeals board. The WCAB held that Gardner’s 60-day limitation applied only to an employer’s initial IRE request, not to a subsequent biannual IRE requested by an employer pursuant to Section 306(a.2). The WCAB also concluded that while the act required the Bureau of Workers’ Compensation to assume responsibility for designating an IRE physician to perform an initial IRE under Section 306(a.2)’s mandate, the employer had the right to unilaterally select the IRE physician for the second requested IRE. Therefore, the WCAB reversed the denial of the employer’s physical examination petition by the WCJ and directed claimant to attend an IRE as scheduled by the employer. The claimant filed a petition for review to the Commonwealth Court. In its opinion, the Commonwealth Court first addressed claimant’s contention that he was unable to be subjected to another IRE until employer showed that his medical condition, permanent impairments and/or disability have undergone a “material change” by the use of an IME since he received a 53 percent whole-person impairment rating as a result of the initial IRE. The claimant based this argument on two things: the presumption of total disability that Section 306(a.2) affords to a claimant whose impairment rating has been established to be 50 percent or greater; and his assertion that Section 314 of the act provides for a claimant’s submission, at an employer’s request, to an IME. The court noted that it recently examined an argument similar to the claimant’s in Hilyer v. WCAB (Joseph T. Pastrill Jr. Logging). In Hilyer, the claimant appealed the WCAB’s affirmance of a WCJ order that he submit to a second IRE requested by employer even though an initial IRE had assigned a 55 percent impairment rating to him. The Commonwealth Court, in Hilyer, held that employer would be entitled to a suspension of claimant’s benefits if he refused to submit to the second IRE. In Hilyer, the court stated that a prefatory showing of a change in a claimant’s disability prior to a request for a second IRE is quite plainly not present anywhere within the text of Section 306(a.2) and, therefore, based upon the act’s own express language, the employer was entitled to request two IREs within 12 months. Additionally, in Hilyer, the court dispensed with claimant’s argument that the act’s definition of impairment in Section 306(a.2)(8)(i) reasonably presumes an abnormality or loss resulting from a compensable injury to be permanent and, therefore, once it is determined that a claimant’s impairment rating is greater than 50 percent, there is no need to conduct an additional IRE without prior evidence from an IME of a change in condition or status to rebut the condition presumed to be permanent. The court in Hilyer held that this argument of claimant was based upon an incorrect assumption that an IRE and IME are “mutually exclusive concepts.” The court dismissed claimant’s contention by holding that Section 306(a.2), which deals with both IREs and IMEs, is to be viewed in its totality as providing for the process of evaluating a claimant’s impairment. The court explained that the act clearly treats an IME as a type of IRE (although for other purposes it may be simpler to think about it as being the other way around). Since Section 306(a.2) states that a maximum of two IMEs may be had in a 12-month period, two IREs must also be available to the employer. The court did not specifically address whether that means an employer can have two IREs and two IMEs in a 12-month period (for a total of four evaluations), or whether the employer is limited to two evaluations, either IRE or IME or some combination thereof. However, since the court viewed an IME as being a type of IRE and an employer is only allowed two IREs in a 12-month period, a limit of two evaluations can be inferred. Applying its holding in Hilyer, the court in Lewis stated that the presumption of disability articulated in Section 306(a.2), that section’s reference to IMEs and/or Section 314 and a claimant’s initial IRE impairment rating exceeding 50 percent all do not serve to establish, impliedly or expressly, any requirement that an employer must demonstrate change in a claimant’s medical condition, permanent impairments and/or disability as a condition precedent to the employer’s timely request for a second IRE within a 12-month period. In addition, the court noted that the regulations enacted by the bureau entitle an employer to “request and receive an IRE twice in a 12-month period,” and the request for an IRE does not preclude an employer from compelling claimant’s attendance at an IME. The court held that employer was entitled under both Section 306(a.2) and its regulations to the timely request of two IREs within a 12-month period without any prefatory showing and, as such, the WCAB did not err in its reversal of the WCJ. After determining that the employer was entitled to have the claimant undergo another IRE, the court then looked at the claimant’s argument that the WCAB erred in holding that the employer had the right to select the physician to perform its requested second IRE. In determining that the employer could select the physician to perform the second IRE, the WCAB analyzed the bureau’s regulatory interpretation of Section 306(a.2)(1), titled “Initial IRE; Designation of Physician by Department,” and determined that since only the initial IRE was referenced by the bureau in this regulation, Section 314 providing that the claimant must submit himself for a physical examination with an appropriate health care provider selected and paid for by employer also governed the second IRE request. Therefore, the employer had the right to select an IRE physician, with the only restriction being that this physician met the requirements outlined in Section 306(a.2)(1). The claimant, with reference to this holding of the board, argued before the Commonwealth Court that Section 306(a.2) “evidences the general assembly’s intent to establish the IRE process as a more independently assessed medical determination of a claimant’s impairment rating than existed prior to the 1996 amendments to the act.” Agreeing with claimant’s second argument, the court stated that the WCAB misread the plain language of the act and the bureau regulation. The court clearly stated that no provision was made in either Section 306(a.2) or the regulation for an employer’s unilateral selection of an IRE physician. Therefore, as neither the act nor the regulation permit the unilateral selection of an IRE physician by an employer, the court reversed the WCAB on this issue. While parties will no doubt continue to argue over the specific requirements of IREs, the Commonwealth Court, in Lewis, has cleared up at least some of the issues surrounding them. An employer can have more than just one IRE — in fact, two in a 12-month period. Unlike an IME, the IRE physician cannot be unilaterally determined by an employer, and an employer can request that a claimant undergo an IME after obtaining an impairment rating. As such, while the IRE will most likely remain a litigated creature, at least it may be a little less misunderstood. Deborah A. Beck is an associate with Sand & Saidel and the assistant chairwoman of its workers’ compensation department. She is also the 2004 defense co-chairwoman of the workers’ compensation section of the Philadelphia Bar Association.

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