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Logue v. Workers' Comp. Appeal Bd. (Commonwealth)

Commonwealth Court of Pennsylvania

July 14, 2015

William Logue, Petitioner
v.
Workers' Compensation Appeal Board (Commonwealth of Pennsylvania), Respondent

Submitted May 5, 2015

Page 1117

Appealed from No. A13-0615. State Agency: Workers' Compensation Appeal Board.

Mark R. Schmidt, Media, for petitioner.

Kim L. Veon, Philadelphia, for respondent.

BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 1118

JAMES GARDNER COLINS, SENIOR JUDGE

This case is a petition for review filed by William Logue (Claimant) appealing an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of a Workers' Compensation Judge (WCJ) ordering Claimant to attend an impairment rating evaluation (IRE) examination by a physician designated by the Bureau of Workers' Compensation (Bureau). For the reasons set forth below, we affirm.

Claimant suffered a right wrist sprain in his employment with the Department of Transportation (Employer) in 2002 and has been receiving total disability benefits for that injury since that time. On November 2, 2012, Employer filed a request with the Bureau for designation of a physician to perform an IRE examination of Claimant under Section 306(a.2) of the Workers' Compensation Act (the Act),[1] and the Bureau designated Dr. Yutong Zhang as the physician to perform the IRE. (Board Opinion at 1; Notice of Designation of IRE Physician, Reproduced Record (R.R.) at 13.) Claimant objected to this request and designation, asserting that Employer was required to attempt to reach an agreement with Claimant on an IRE physician before requesting that the Bureau designate an IRE physician. (Claimant Ex. 1, R.R. at 11-12.) Claimant refused to appear for an IRE examination by Dr. Zhang, and Employer, on December 24, 2012, filed an Examination Petition seeking an order compelling Claimant to appear for examination by Dr. Zhang. (WCJ Decision F.F. ¶ 3; Board Opinion at 1; Petition to Compel Physical Examination, R.R. at 14-15.)

On April 18, 2013, the WCJ granted Employer's Examination Petition, ordering that Claimant appear for an IRE examination by Dr. Zhang and stating that failure to appear for the examination without adequate excuse would subject Claimant to termination or suspension of benefits. (WCJ Decision at 3.) Claimant appealed the WCJ's order to the Board. On September 24, 2014, the Board affirmed the WCJ's order that Claimant appear for an IRE examination by Dr. Zhang. This appeal followed.[2]

Page 1119

Section 306(a.2) of the Act provides for IREs to evaluate the degree of permanent impairment caused by a work injury and for change of a claimant's disability status from total disability to partial disability based on the degree of impairment determined by the IRE. Section 306(a.2)(1) of the Act states:

When an employe has received total disability compensation ... for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensable injury, if any. The degree of impairment shall be determined based upon an evaluation by a physician who is licensed in this Commonwealth, who is certified by an American Board of Medical Specialties approved board or its osteopathic equivalent and who is active in clinical practice for at least twenty hours per week, chosen by agreement of the ...

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