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Abington Memorial Hospital v. Workers' Compensation Appeal Board12/8/2005
Abington Memorial Hospital (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) that reversed the decision of the Worker's Compensation Judge (WCJ). The WCJ found that Employer's request for designation of a physician to perform an Impairment Rating Evaluation (IRE) was a valid exercise of Employer's rights under Section 306(a.2) of the Workers' Compensation Act (Act), and William Sweeney's (Claimant) Petition to Review Compensation Benefits should be denied.
On September 17, 1996, Claimant suffered a work-related injury. As of November 4, 1998, Claimant had received 104 weeks of temporary total disability benefits. On April 16, 2001, Employer filed a petition requesting that a physician be designated to perform an IRE in accordance with Section 306(a.2)(1) of the Act. On April 25, 2002, the Bureau of Workers' Compensation (Bureau) appointed Menachem Meller, M.D. (Dr. Menachem) to conduct the IRE.
On June 21, 2002, Dr. Meller performed the IRE on Claimant. Dr. Menachem found an impairment rating of 5%. Section 306(a.2)(2) of the Act, 77 P.S. § 511.2(2), provides that if the impairment rating falls below 50%, then a claimant is no longer entitled to collect total disability benefits but qualifies for partial disability benefits. Because Dr. Menachem found an impairment rating of 5%, Employer filed a Notice of Change of Workers' Compensation Disability Status. On December 16, 2002, Claimant was notified that his compensation status was changed from total disability to partial disability effective June 21, 2002. Claimant responded on July 8, 2003, with a Petition to Review Compensation Benefits and reinstate total disability benefits and alleged the timing of Employer's request for an IRE violated the Act.
The WCJ denied Claimant's petition. The WCJ concluded that the Bureau anticipated and expected that requests for IRE's were to be filed within the 60 days following the expiration of 104 weeks of temporary total disability. But the WCJ also concluded that Claimant waived Employer's failure to timely schedule the evaluation as required by Section 306(a.2)(1) of the Act, 77 P.S. § 511.2(1), when he did not challenge or object to the Request for Designation of IRE Physician, the Notice of Designation of the IRE Physician and the IRE appointment, and instead, attended the appointment with Dr. Menachem on June 21, 2002.
On appeal the Board reversed. The Board concluded the WCJ erred as a matter of law. The Board found Employer's request for an IRE was not timely because it was filed on April 16, 2001, well beyond 60 days from the November 4, 1998, expiration of the receipt of 104 weeks of total disability benefits. Employer then petitioned this Court for review.
On appeal, Employer asserts that the Board erroneously reversed the WCJ's decision. Specifically, in its first and fourth issues, Employer contends that the Board erroneously relied on Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 814 A.2d 884 (Pa. Cmwlth. 2003), petition for allowance of appeal granted, 577 Pa. 703, 847 A.2d 59 (2004). According to Employer, both the Act and Bureau allow for the filing of IRE requests after the 60 day period, and thus the WCJ's decision dismissing Claimant's Petition to Review Compensation Benefits, was correct. Employer, in its second issue, argues that Claimant waived his right to object or challenge the IRE and that the doctrine of laches applies. Finally, in its third issue, Employer contends the Board erred when it applied Gardner retroactively.
This Court will address Employer's first and fourth issues collectively.
Employer argues that the Board err
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