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Pennsylvania Commonwealth Court Holds that Employer is not Required to Secure Claimant’s Agreement on Physician

A recent case before the Commonwealth Court involved the issue of whether an employer must secure a claimant’s agreement on an impairment rating evaluation (IRE) physician. The IRE evaluation is used to determine a change in the claimant’s disability status, and standards for conducting the IRE are set forth in the Workers’ Compensation Act. In this case, the claimant appealed an order affirming the Workers’ Compensation Judge’s (WCJ’s) decision requiring he take part in an IRE conducted by a physician selected by the Bureau of Workers’ Compensation.

While working for the Department of Transportation, the claimant sprained his right wrist. He received total disability benefits for 10 years, and then his employer requested that the Bureau of Workers’ Compensation designate a physician to conduct the IRE examination, according to Section 306(a.2) of the Workers’ Compensation Act.  The Bureau designated a physician, and the claimant objected, contending that his employer must try to agree with him on an IRE physician before requesting the Bureau designate the physician. The claimant did not appear for the IRE examination, and his employer filed an Examination Petition, requesting an order to compel the claimant to be examined by the doctor.

The WCJ granted the employer’s Examination Petition. In granting the Petition, the WCJ ordered the claimant to take part in an IRE examination. If the claimant did not appear for the examination (without an adequate excuse), he would be subject to suspension or termination of his benefits. The claimant appealed the order, the Board affirmed, and he again appealed to the Commonwealth Court.

At issue is Section 306(a.2) of the Workers’ Compensation Act, setting forth the requirement that after an employee receives total disability compensation for a certain amount of time (104 weeks), they shall submit to a medical examination requested by the insurer. The claimant’s argument is that the IRE physician must be chosen by agreement of the parties, or the employer must secure agreement from the claimant on the choice of an IRE physician before asking the Bureau to choose the physician.

In rejecting this contention, the Commonwealth Court stated that Section 306(a.2)(1) lists two methods for selecting the IRE physician, and it does not state that the designation is limited to a situation in which the parties cannot agree. Here, the rules of statutory construction require rejecting the claimant’s argument that the employer must agree on a physician before requesting that the Bureau designate an IRE doctor.

The language makes clear that the IRE physician shall be chosen by agreement of the parties, or designated by the department. The court stated that the language does not include, “if the parties cannot agree, as designated by the department.” The court also made clear that when the Bureau designates a physician, this is a selection by an independent party, not the employer. This is important because it demonstrates that the employer does not unilaterally select IRE physicians. The employer does, however, have the choice of methods of obtaining an independently selected IRE physician.

Turning to the legislative intent behind the statute, the court stated that Section 306(a.2) reduces workers’ compensation costs, restoring efficiency to the workers’ compensation system.  In fact, requiring that employers take part in another step of securing the claimant’s agreement on an IRE physician before requesting the Bureau designate a physician would result in unnecessary delay and inefficiency.

The Commonwealth Court affirmed the Board’s order. Section 306(a.2) does not require an employer to seek the claimant’s agreement on an IRE physician.

At the Needle Law Firm, our knowledgeable counsel represent clients in pursuing their workers’ compensation claims. We offer a free, confidential consultation. Contact the office today at 570-344-1266.

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