When parties cannot agree on IRE physician: date insurer requests physician be designated to perform IRE is determinative date of whether IRE request is timely under § 306 (a.2)(1).

The Appeal Board found that, in order for an IRE request to be timely under §306 (a.2)(1) of the Act, the insurer must file both the IRE request and the IRE appointment forms within 60 days of the expiration of the claimant’s receipt of 104 weeks of temporary total disability benefits.

The Commonwealth Court reversed. According to the court, when the parties cannot agree on an IRE physician, the date the insured requests a physician be designated to perform an IRE is the determinative date as to whether the IRE request is timely under §306(a.2)(1). The court held that there was no requirement that the employer file both the IRE request and the IRE appointment forms within the 60-day window following payment of 104 weeks of benefits in order for an IRE request to be timely and allow for an automatic change in benefit status.

The Commonwealth Court also agreed with the employer’s argument that it made a timely IRE request when they wrote a letter to the Bureau requesting designation of an IRE physician—18 days after the claimant received 104 weeks of temporary total disability benefits—and the Bureau acknowledged the request by letter dated six days later. In that letter, the Bureau stated that it would consider the previous assignment of the IRE physician to be effective as of the date of the employer’s most recent request. The court concluded that the employer’s letter was filed within the required 60-day time period for an automatic change in the claimant’s disability status.

_{Case Law Alerts, 4^th Quarter, October 2015}

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