Case Law Update | Village at Palmerton v. WCAB (Pa. 334 C.D. 2014, filed June 12, 2015) | PA Work Injury

June 12, 2015

Claimant injured on 3/3/07and began receiving TTD as of 9/27/07.  As of 11/28/09 (not in dispute), she had received 104 weeks of TTD.  Employer realized its initial request for designation of IRE doctor (September 2009) was premature and tried to revive via letter on 12/16/09, postured as 2nd request for designation of IRE doctor.  Letter was copied to WCJ, but Employer did not file another 766 Form.  Bureau refused to accept.  In June 2011, WCJ granted Employer’s PE petition and directed Claimant to undergo IRE; Employer issued Change Notice based on IRE finding 11% impairment as of 5/18/10. 


Claimant filed Reinstatement, Review, & Penalty Petitions asserting that Employer’s IRE request was untimely and ensuing IRE void, therefore Employer not entitled to automatic change in status.  WCJ (Pletcher) found for Claimant (except penalty) because timeliness problems were caused by Employer and also because appropriate forms not used.  WCAB affirmed on basis that both request for IRE designation and request for Claimant attendance at IRE must be filed within 60 days of 104 week deadline.


CC: WCAB wrong to require both requests (designation & appearance) within 60 days because Employer has no control over Bureau designation, which itself depends on IRE doctor schedules.  SCOPA did not require this level of compliance in Dowhower (Pa. 2007), nor does statute or regulations. 


Holding: Reverse.  Date that Employer/Insurer requests physician be designated to perform IRE is determinative as to whether IRE request is timely.  Also, “Although we agree that Bureau forms are necessary and serve a useful purpose, requirement that a request to designate IRE physician can only be made on 766 form is not a statutory requirement.”  Here, on these facts, Employer’s 12/16/09 letter was a valid request filed within 60 days of elapsed 104 week deadline of 11/28/09.  To hold otherwise improperly elevates form over substance.


CO/DO (Friedman): Agree that WCAB erred in requiring both requests within 60 days, but disagree that Employer’s 12/16/09 letter was valid “official request” for designation of IRE doctor.  Automatic change requires strict compliance with statutory requirements, which includes completion of proper forms and timeliness.  Gardner (Pa. 2005).  Here, “Bureau could not treat Employer’s 12/16/19 letter as a proper IRE request any more than a phone call or a text.”  Employer here not timely and not in proper form to be eligible for automatic change, but had recourse through traditional administrative procedures.

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