OPINION BY
Judge LEAVITT.1
Wayne Weismantle (Claimant) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) terminating his workers’ compensation disability benefits. The issue we consider in this case is whether an employer’s placement of a claimant on partial disability during the pendency of that employer’s termination proceeding bars any further action by the Workers’ Compensation Judge (WCJ) on the termination petition.
In November of 2001, Claimant began to collect total disability benefits for a lower back strain suffered in 1999 while in the employ of Lucent Technologies (Employer). On January 8, 2003, Employer filed a termination petition based upon the report of its board-certified physician, Michael W. Weiss, M.D., that Claimant was fully recovered from his work injury as of August 26, 2002.2 While the outcome of the termination proceeding was pending, Claimant reached the point of having collected total disability benefits for 104 weeks. Accordingly, Employer requested Claimant to undergo an Impairment Rating Evaluation (IRE), which was conducted by Ronald Glick, M.D., on November 11, 2003. Claimant was found to have a 10 percent [1238]*1238impairment rating. On December 12, 2003, Employer notified Claimant that he was being placed on partial disability as of November 11, 2003.
On April 9, 2004, the WCJ denied Employer’s termination petition for the stated reason that Employer acknowledged that Claimant was impaired as of November 11, 2003, by placing him on partial disability. The WCJ did not make any factual determinations with respect to any of the evidence presented in the termination proceeding. On appeal, the Board held that the WCJ was incorrect in her assumption that an impairment rating of 10 percent barred an employer from seeking a termination of disability benefits, explaining that nothing in the Workers’ Compensation Act3 (Act) or the case law prohibits an employer from pursuing an IRE and a termination of benefits simultaneously. Therefore, the Board vacated and remanded for a decision on the merits of the termination petition. On remand, the WCJ terminated Claimant’s benefits, finding that he had fully recovered from his injury as of August 26, 2002.4 Claimant appealed, and the Board affirmed. Claimant now petitions for this Court’s review.5
On appeal, Claimant raises one issue. He contends that once Employer obtained an IRE indicating 10 percent impairment and filed a notice of change of status with the Bureau of Workers’ Compensation, it was foreclosed from seeking termination of Claimant’s benefits as of a date prior to the date of the IRE.6 Employer counters that the Act does not correlate the timing of the IRE with the timing of a termination of benefits. In support of its argument, Employer relies on Schachter v. Workers’ Compensation Appeal Board (SPS Technologies), 910 A.2d 742 (Pa.Cmwlth.2006).
In Schachter, this Court also considered the relationship between an IRE and a termination of benefits. There, the claimant’s IRE resulted in a finding that he had a 6 percent work-related impairment, and the employer changed the claimant’s status from total disability to partial disability. Thereafter, the employer sought a termination of benefits, asserting a full recovery by claimant. The claimant argued that the employer could not do so because it had already been determined that the claimant had a 6 percent permanent impairment. We held that a finding of a 6 percent impairment is neither a judicial admission nor res judicata for purposes of filing a subsequent termination petition. Id. at 746. We also explained that “the IRE remedies ... are in addition [1239]*1239to, not a replacement of, the remedies available to an employer who believes that an employee’s loss of wages is not the result of a work-related injury.” Id,
Claimant would limit Schachter’s holding to the exact sequence of events that occurred in that case: an IRE request followed by a termination petition. Here, because the termination petition was filed prior to Employer’s IRE request, Claimant argues that Schachter is not disposi-tive. Claimant asserts that if Employer wanted to pursue an IRE, it had to withdraw the termination petition and have a new independent medical examination conducted to determine whether Claimant had recovered. In support of his argument, Claimant relies on Sharon Tube Company v. Workers’ Compensation Appeal Board (Buzard), 908 A.2d 929 (Pa.Cmwlth.2006).
In Sharon Tube, the claimant, who had returned to work with a loss of earnings as of July 21, 2008, again stopped working. The employer and the claimant then executed a supplemental agreement, specifying that the claimant was totally disabled as a result of his work injury as of July 28, 2003. Thereafter, the employer filed a petition to modify the claimant’s benefits as of July 21, 2003, alleging that the claimant had some earning capacity. This Court held that the employer’s execution of the supplemental agreement reflected the employer’s acknowledgement that claimant’s total disability had recurred. This Court rejected the employer’s more limited characterization of the supplemental agreement, i.e., that it showed only that the claimant had stopped working. Stated otherwise, a supplemental agreement may not be modified retroactively. To have benefits modified pursuant to Section 413 of the Act, 77 P.S. § 772,7 an employer must prove that a claimant’s condition has changed since the date of the supplemental agreement.
Claimant argues that the logic of Sharon Tube should be applied here. He contends that Claimant’s IRE had the effect of mooting Employer’s termination petition. We disagree. In Sharon Tube, the employer’s signing of the supplemental agreement and its filing of the modification petition were matters entirely within the employer’s control. That is not the case here.
An employer seeking a change from total disability to partial disability based on an IRE must do so within the strict time requirements of Section 306(a.2)(l) of the Act, 77 P.S. § 511.2(1).8 To obtain a uni[1240]*1240lateral change from total disability to partial disability, an employer must request an IRE no earlier than the date on which claimant has received benefits for 104 weeks9 and no later than 60 days thereafter. See Dowhower v. Workers’ Compensation Appeal Board (CAPCO Contracting), 591 Pa. 476, 919 A.2d 913, 917-918 (2007) (holding that an IRE cannot be requested too early, ie., before 104 weeks have elapsed, or too late, ie., 61 days after the 104-week period has elapsed). A request for an IRE must be timed just right, ie., within the 60-day window. See also Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005).
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION BY
Judge LEAVITT.1
Wayne Weismantle (Claimant) petitions for review of an adjudication of the Workers’ Compensation Appeal Board (Board) terminating his workers’ compensation disability benefits. The issue we consider in this case is whether an employer’s placement of a claimant on partial disability during the pendency of that employer’s termination proceeding bars any further action by the Workers’ Compensation Judge (WCJ) on the termination petition.
In November of 2001, Claimant began to collect total disability benefits for a lower back strain suffered in 1999 while in the employ of Lucent Technologies (Employer). On January 8, 2003, Employer filed a termination petition based upon the report of its board-certified physician, Michael W. Weiss, M.D., that Claimant was fully recovered from his work injury as of August 26, 2002.2 While the outcome of the termination proceeding was pending, Claimant reached the point of having collected total disability benefits for 104 weeks. Accordingly, Employer requested Claimant to undergo an Impairment Rating Evaluation (IRE), which was conducted by Ronald Glick, M.D., on November 11, 2003. Claimant was found to have a 10 percent [1238]*1238impairment rating. On December 12, 2003, Employer notified Claimant that he was being placed on partial disability as of November 11, 2003.
On April 9, 2004, the WCJ denied Employer’s termination petition for the stated reason that Employer acknowledged that Claimant was impaired as of November 11, 2003, by placing him on partial disability. The WCJ did not make any factual determinations with respect to any of the evidence presented in the termination proceeding. On appeal, the Board held that the WCJ was incorrect in her assumption that an impairment rating of 10 percent barred an employer from seeking a termination of disability benefits, explaining that nothing in the Workers’ Compensation Act3 (Act) or the case law prohibits an employer from pursuing an IRE and a termination of benefits simultaneously. Therefore, the Board vacated and remanded for a decision on the merits of the termination petition. On remand, the WCJ terminated Claimant’s benefits, finding that he had fully recovered from his injury as of August 26, 2002.4 Claimant appealed, and the Board affirmed. Claimant now petitions for this Court’s review.5
On appeal, Claimant raises one issue. He contends that once Employer obtained an IRE indicating 10 percent impairment and filed a notice of change of status with the Bureau of Workers’ Compensation, it was foreclosed from seeking termination of Claimant’s benefits as of a date prior to the date of the IRE.6 Employer counters that the Act does not correlate the timing of the IRE with the timing of a termination of benefits. In support of its argument, Employer relies on Schachter v. Workers’ Compensation Appeal Board (SPS Technologies), 910 A.2d 742 (Pa.Cmwlth.2006).
In Schachter, this Court also considered the relationship between an IRE and a termination of benefits. There, the claimant’s IRE resulted in a finding that he had a 6 percent work-related impairment, and the employer changed the claimant’s status from total disability to partial disability. Thereafter, the employer sought a termination of benefits, asserting a full recovery by claimant. The claimant argued that the employer could not do so because it had already been determined that the claimant had a 6 percent permanent impairment. We held that a finding of a 6 percent impairment is neither a judicial admission nor res judicata for purposes of filing a subsequent termination petition. Id. at 746. We also explained that “the IRE remedies ... are in addition [1239]*1239to, not a replacement of, the remedies available to an employer who believes that an employee’s loss of wages is not the result of a work-related injury.” Id,
Claimant would limit Schachter’s holding to the exact sequence of events that occurred in that case: an IRE request followed by a termination petition. Here, because the termination petition was filed prior to Employer’s IRE request, Claimant argues that Schachter is not disposi-tive. Claimant asserts that if Employer wanted to pursue an IRE, it had to withdraw the termination petition and have a new independent medical examination conducted to determine whether Claimant had recovered. In support of his argument, Claimant relies on Sharon Tube Company v. Workers’ Compensation Appeal Board (Buzard), 908 A.2d 929 (Pa.Cmwlth.2006).
In Sharon Tube, the claimant, who had returned to work with a loss of earnings as of July 21, 2008, again stopped working. The employer and the claimant then executed a supplemental agreement, specifying that the claimant was totally disabled as a result of his work injury as of July 28, 2003. Thereafter, the employer filed a petition to modify the claimant’s benefits as of July 21, 2003, alleging that the claimant had some earning capacity. This Court held that the employer’s execution of the supplemental agreement reflected the employer’s acknowledgement that claimant’s total disability had recurred. This Court rejected the employer’s more limited characterization of the supplemental agreement, i.e., that it showed only that the claimant had stopped working. Stated otherwise, a supplemental agreement may not be modified retroactively. To have benefits modified pursuant to Section 413 of the Act, 77 P.S. § 772,7 an employer must prove that a claimant’s condition has changed since the date of the supplemental agreement.
Claimant argues that the logic of Sharon Tube should be applied here. He contends that Claimant’s IRE had the effect of mooting Employer’s termination petition. We disagree. In Sharon Tube, the employer’s signing of the supplemental agreement and its filing of the modification petition were matters entirely within the employer’s control. That is not the case here.
An employer seeking a change from total disability to partial disability based on an IRE must do so within the strict time requirements of Section 306(a.2)(l) of the Act, 77 P.S. § 511.2(1).8 To obtain a uni[1240]*1240lateral change from total disability to partial disability, an employer must request an IRE no earlier than the date on which claimant has received benefits for 104 weeks9 and no later than 60 days thereafter. See Dowhower v. Workers’ Compensation Appeal Board (CAPCO Contracting), 591 Pa. 476, 919 A.2d 913, 917-918 (2007) (holding that an IRE cannot be requested too early, ie., before 104 weeks have elapsed, or too late, ie., 61 days after the 104-week period has elapsed). A request for an IRE must be timed just right, ie., within the 60-day window. See also Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005). There is no exception from this deadline for the case where a termination is pending. If this deadline is not met, the employer forever loses the opportunity to change the claimant’s disability status to partial disability if the IRE shows an impairment of less than 50 percent. Id. at 382, 888 A.2d at 767-768.
Further, the inquiry made in an IRE is not the same as the inquiry made in a termination petition. An IRE is governed by the American Medical Association’s “Guides to the Evaluation of Permanent Impairment.” These guidelines are designed to determine impairment, not to determine whether an individual can perform his pre-injury job, ie., his degree of disability.10 As noted by Employer, the medical examination for an IRE is quite different in scope from an independent medical examination undertaken to determine whether a claimant can perform the pre-injury job.
Claimant urges that there must be a logical timeline between an IRE and a termination. This might be desirable in the abstract, but it is not possible given the strict statutory deadlines that govern an IRE. As we held in Schachter, the Act gives an employer the right to pursue an IRE and a termination without regard for the other, because “IRE remedies ... are in addition to, not a replacement of, the remedies available to an employer who believes that an employee’s loss of wages is not the result of a work-related injury.” Schachter, 910 A.2d at 746 (emphasis added). Employer cannot control the speed by which its termination petition is adjudicated. In the meantime, Claimant reached the 104-week mark, triggering the 60-day window for Employer to request an IRE.11 If Employer did not do so, the opportunity would have been lost.
For these reasons, we hold that an employer’s request for an IRE does not moot an employer’s pending termination petition. Accordingly, the Board’s order is affirmed.
ORDER
AND NOW, this 18th day of June, 2007, the order of the Workers’ Compensation [1241]*1241Appeal Board dated June 26, 2006 in the above captioned case is hereby affirmed.