If the following column seems familiar, it is no coincidence. On Oct. 20, the Pennsylvania Supreme Court authored the fourth, and not final chapter in the Diehl saga, by granting the claimant’s petition for allowance of appeal. The court framed the issue as whether the Commonwealth Court erred in its interpretation of 77 P.S. § 551.2 by holding that the employer did not need to present evidence of job availability or earning power in order to change the claimant’s disability status from total to partial, and whether the Commonwealth Court’s holding conflicts with the Supreme Court’s decision in Gardner v. WCAB (Genesis Health Ventures) .

In the Supreme Court’s 2005 Gardner decision, it was decided that an employer who fails to timely avail itself of an Impairment Rating Evaluation’s automatic reduction provision under Section 306(a.2) of the Workers’ Compensation Act must seek a change in disability benefit status from total to partial through the “traditional administrative process.” The court held that if an IRE was not requested within 60 days of the expiration of 104 weeks of total disability, the exclusive remedy for the non-automatic reduction was through a modification petition. Following the Commonwealth Court’s decision in Diehl v. W.C.A.B. (IA Construction and Liberty Mutual Insurance) , which was originally reported, but quickly vacated and withdrawn, the subsequent Diehl decision en banc, and now the allowance of appeal, we still do not know what the Supreme Court meant by this “traditional administrative process,” as it was never defined. The good news is that the authors of the phrase in question will now be able to define it.

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