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Village at Palmerton Assisted Living v. Workers' Compensation Appeal Board (Kilgallon), Respondent

Commonwealth Court of Pennsylvania

June 12, 2015

The Village at Palmerton Assisted Living, Petitioner
v.
Workers' Compensation Appeal Board (Kilgallon), Respondent

Submitted October 3, 2014

Appealed from No. A12-0741. State Agency: Workers' Compensation Appeal Board.

Kurt C. Walsh, Scranton, for petitioner.

Gerald F. Strubinger, Jr., Palmerton, for respondent.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

RENÉE COHN JUBELIRER, J.[1]

The Village at Palmerton Assisted Living (Employer) petitions for review of an Order of the Workers' Compensation Appeal Board (Board) affirming the Decision of the Workers' Compensation Judge (WCJ) which: (1) granted the reinstatement and review petitions filed by Donna Kilgallon (Claimant); (2) denied Claimant's penalty petition; and (3) denied Employer's modification and review petitions. On appeal, Employer argues that the Board erroneously interpreted the statutory requirements set forth in Section 306(a.2)(1) of the Workers' Compensation Act[2] (Act) for obtaining an automatic change in a claimant's disability status based on an Impairment Rating Evaluation (IRE). Because we conclude that the Board erred, we reverse.

I. BACKGROUND

Claimant suffered a work-related injury on March 3, 2007, while employed by Employer. (WCJ Decision, May 9, 2012 (2012 WCJ Decision), Findings of Fact (2012 FOF) ¶ 1.) Claimant began receiving temporary total disability benefits, as of September 27, 2007, for back and knee injuries pursuant to a WCJ decision circulated on September 11, 2008. (Board Op. at 1, Claimant's Ex. C-1.) As of November 28, 2009, Claimant had received 104 weeks of temporary total disability. (WCJ Decision, June 9, 2011, FOF ¶ 4a, R.R. at 31a.) On or about September 21, 2009, Employer and its insurer filed Form LIBC-766, " Request for Designation of a Physician to Perform an [IRE]" (Initial Request for Designation), with the Bureau of Workers' Compensation (Bureau).[3] (2012 FOF ¶ 5(a); Form LIBC-766, R.R. at 72a-73a.) Upon receiving a copy of Employer's Initial Request for Designation, Claimant, through counsel, advised Employer that she would not attend an IRE absent an order of Court. (2012 FOF ¶ 5(b).) The Bureau issued a " Notice of Designation of [IRE] Physician" (Notice of Designation) appointing Brent M. Nickischer, D.O., to conduct the IRE. (2012 FOF ¶ 5(b); Notice of Designation, R.R. at 74a.)

On October 8, 2009, Employer filed with the Bureau a " Petition for Physical Examination or Expert Interview of Employee" (Petition for Physical Examination) stating that " Claimant's counsel objected to Claimant's attendance at an IRE without a Judge's Order." (2012 FOF ¶ 5(d).) Claimant filed an answer averring that Employer was not entitled to an IRE because Employer did not show that its Initial Request for Designation was timely. (2012 FOF ¶ 5(d).) Employer's Petition for Physical Examination was assigned to WCJ Kutz for disposition. While the proceedings on Employer's Petition for Physical Examination were pending, Employer filed Form LIBC-765, " [IRE] Appointment," with the Bureau on November 2, 2009, stating " that Claimant reached 104 weeks of temporary total disability as of September 19, 2009" and scheduling an IRE of Claimant with Dr. Nickischer for November 16, 2009. (2012 FOF ¶ 5(c); Form LIBC-765, R.R. at 76a-77a.)

Employer realized its Initial Request for Designation was premature and, beginning with correspondence dated December 14, 2009, attempted to timely request the designation of a physician to perform an IRE. Therefore, in its first letter to WCJ Kutz, Employer advised that its Initial Request for Designation was premature, that Employer would seek a re-designation of an IRE physician, that Employer understood that Claimant would attend a rescheduled IRE, and that the parties believed the matter could be resolved amicably. (2012 FOF ¶ 5(e); Letter from Employer to WCJ Kutz (December 14, 2009), R.R. at 87a.) The next day, in correspondence dated December 15, 2009, Employer notified WCJ Kutz that the Bureau had informally advised Employer " that there was nothing that could be done to correct" the miscalculation of when Claimant had received 104 weeks of temporary total disability that resulted in the premature filing of Employer's Initial Request for Designation and that, if Employer filed a second, timely Form LIBC-766, Request for Designation, it would be denied. (Letter from Employer to WCJ Kutz at 1 (December 15, 2009 Letter), R.R. at 88a-89a.) Employer believed this denial would be contrary to the Supreme Court's decision in Dowhower v. Workers' Compensation Appeal Board (Capco Contracting), 591 Pa. 476, 919 A.2d 913 (Pa. 2007) (holding that a request for the designation of an IRE physician is premature, which renders any IRE conducted on the claimant void, if filed before the claimant has reached 104 weeks of total disability). (December 15, 2009 Letter at 1, R.R. at 88a-89a.) Employer further advised WCJ Kutz that, based on the holding in Dowhower, Employer " is now making a timely second request to the Bureau to appoint an IRE physician" and requested that WCJ Kutz issue an order compelling the Bureau to appoint an IRE physician. (December 15, 2009 Letter at 1-2, R.R. at 88a-89a.)

Employer made its second request for the designation of an IRE physician by letter addressed to the Bureau dated December 16, 2009. Therein, Employer requested that the Bureau allow this correspondence " to serve as a formal request for the Bureau to designate a physician to conduct an [IRE] on . . . Claimant." (Letter from Employer to Bureau at 1 (December 16, 2009 Letter), R.R. at 90a.) Employer advised the Bureau that Employer's Initial Request for Designation was premature and Employer was, therefore, " requesting the Bureau to now appoint an IRE physician to conduct an evaluation." (December 16, 2009 Letter at 1, R.R. at 90a.) Employer explained " that the Bureau had previously designated [Dr.] Nickischer, DO[,] as the physician to conduct the initially requested IRE evaluation; " however, the IRE was never conducted. (December 16, 2009 Letter at 1, R.R. at 90a.) Employer attached, for the Bureau's convenience, a copy of its Initial Request for Designation that Employer submitted on Form LIBC-766, and the Bureau's prior designation of Dr. Nickischer. (December 16, 2009 Letter at 1, R.R. at 90a.) Finally, Employer notified the Bureau that, by a copy of this correspondence, Employer was notifying Claimant's counsel and WCJ Kutz of Employer's request for the designation of an IRE physician to conduct an evaluation on Claimant. (December 16, 2009 Letter at 1, R.R. at 90a.) Employer did not " file any new Bureau forms for its request." (2012 FOF ¶ 5(h).)

Employer's Petition for Physical Examination, which had been filed with regard to Employer's Initial Request for Designation, was the subject of a hearing on December 22, 2009. However, because Employer conceded that its Initial Request for Designation was prematurely filed and Employer " was attempting to obtain the designation of a new IRE physician from [the] Bureau," Employer agreed to withdraw the Petition for Physical Examination. (WCJ Decision, December 24, 2009, FOF ¶ 2, R.R. at 94a.) WCJ Kutz, therefore, dismissed Employer's Petition for Physical Examination and further ordered that Employer was permitted to present WCJ Kutz's order to the Bureau in support of Employer's " current request for the designation of a new IRE physician." (WCJ Order, December 24, 2009.)

The Bureau responded to Employer's December 16, 2009 Letter by correspondence dated December 24, 2009. Therein, the Bureau advised Employer as follows:

With respect to your concerns regarding the Request for Designation having been filed prematurely, please note that the Request for Designation does not " request the employee's attendance at the IRE." Instead, the regulations require the insurer to request the employee's attendance by completing form LIBC-765 ( Impairment Rating Evaluation Appointment ). (See 34 Pa. Code § 123.102(e).) In fact, unlike the Impairment Rating Evaluation Appointment form, the filing of a Request for Designation is not a necessary pre-requisite to obtaining an IRE determination and would not be filed where, for example, the parties agree on a physician to perform the examination. Thus, the date upon which the Request for Designation is filed may not be relevant to determining whether the actual IRE was timely or premature.
With regard to your request that the Bureau issue a new Notice of Designation of IRE Physician, please note that you may consider the Bureau's assignment of Brent M. Nickischer, D.O., to be ...

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