Wellington Foods v. Workers' Compensation Appeal Board

863 A.2d 151, 2004 Pa. Commw. LEXIS 914

• Court: Commonwealth Court of Pennsylvania
• Decided: December 10, 2004
• Status: Published

Opinions

OPINION BY

Judge FRIEDMAN.

Wellington Foods (Employer) petitions for review of the October 7, 2003, order of the Workers’ Compensation Appeal Board (WCAB), which affirmed the decision of the workers’ compensation judge (WCJ) to reinstate total disability benefits to Thomas Rice (Claimant). We affirm.

Claimant sustained a work-related injury on December 9, 1998, and pursuant to an adjudication dated October 17, 2000, Claimant received total disability benefits. As of December 7, 2000, Claimant had received 104 weeks of total disability benefits. On July 23, 2001, Employer requested that Claimant undergo an impairment rating evaluation (IRE). (WCJ’s Findings of Fact, No. 3.)

Claimant attended the IRE, which indicated that Claimant had a 24% impairment rating. On November 9, 2001, Employer filed a Notice of Change in Workers’ Compensation Disability Status, which changed Claimant’s status from total disability to partial disability. The effect was to limit Claimant’s receipt of benefits to no more than 500 weeks. (WCJ’s Findings of Fact, No. 4.)

Claimant filed a Petition to Reinstate his total disability benefits, alleging that Employer violated section 306(a.2)(l) of the Workers’ Compensation Act (Act)¹ by failing to request the IRE within sixty days of the expiration of 104 weeks of total disability benefits, as required under that section.² Employer filed an answer denying the allegations of the Petition, and a hearing was held before the WCJ. WCJ’s Findings of Fact, Nos. 1-2.)

At the hearing, the parties stipulated that: (1) Claimant collected over 104 weeks of total disability benefits; (2) Employer requested the IRE more than sixty days after the 104 weeks; (3) Claimant attended the IRE; (4) the IRE showed his impairment to be less than 50%; and (5) Employer’s insurer changed Claimant’s status from total to partial disability. (R.R. at 12-13.) After the admission of exhibits, the following exchange occurred:

[Employer]: And there was a Supplemental Agreement, which I don’t have a copy of. I’ll have to get that from the carrier. There was a period of time the claimant did return to work for another employer.

[WCJ]: But is that relevant to these proceedings?

[Employer]: I have to check and see if it’s relevant. But I’ll submit it with my brief if it is.

[WCJ]: Once you send it in, I assume counsel for the claimant has no objection to including that Supplemental Agreement with [Employer’s exhibit].

[Claimant]: I have no objection, Judge.

(R.R. at 14-15.) Employer did not submit a supplemental agreement with its brief. The WCJ concluded that, because Employer failed to request the IRE within sixty days after Claimant received 104 weeks of total disability benefits, Claimant is entitled to a reinstatement of total disability benefits. Employer appealed to the WCAB, which affirmed. Employer now petitions this court for review.³

Employer argues that the WCAB erred in affirming the WCJ because, although Employer failed to timely request the IRE, Claimant agreed to the IRE by attending the IRE. We disagree.

Section 306(a.2)(l) of the Act, 77 P.S. § 511.2(1) (emphasis added) provides, in pertinent part, as follows:

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.

We are not persuaded that Claimant “otherwise agreed to” the IRE simply because Claimant attended the IRE. Indeed, the IRE form sent to Claimant in this case contains a “Notice to Employee,” stating: “If you fail to attend the [IRE], your workers’ compensation benefits may be suspended (stopped) through the decision of a[WCJ].” (R.R. at 27.) Considering that Claimant was threatened with a cessation of benefits for failure to attend the IRE, we cannot say that Claimant “otherwise agreed to” the IRE by attending the IRE.

Moreover, a three-judge panel of this court addressed a similar issue in Dowhower v. Workers’ Compensation Appeal Board (Capeo Contracting), 826 A.2d 28 (Pa.Cmwlth.2003). The panel held that a claimant who attends an IRE does not waive the right to object to the timeliness of the IRE request. The panel pointed out that a claimant must attend an IRE or face the possibility of having benefits suspended under the regulation at 34 Pa.Code § 123.102(h) (stating that an employee’s failure to attend an IRE may result in a suspension).

Employer also argues that this case should be remanded to the WCJ to re-open the record and take additional evidence as to whether Claimant worked at any point during the 104 weeks he received total disability benefits. Employer asserts, without any supporting documentation, that Claimant admitted he worked five or six months during the 104-week period.⁴ However, Employer did not raise this issue in its petition for review; therefore, the matter is waived.⁵ Brehm v. Workers’ Compensation Appeal Board (Hygienic Sanitation Company), 782 A.2d 1077 (Pa.Cmwlth.2001).

Accordingly, we affirm.

ORDER

AND NOW, this 10th day of December, 2004, the order of the Workers’ Compensation Appeal Board, dated October 7, 2003, is hereby affirmed.

1 . Act of June 2, 1915, P.L. 736, added by section 4 of the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2(1).

2 . Because Claimant had received 104 weeks of total disability benefits as of December 7, 2000, Employer needed to request an IRE by February 5, 2001, sixty days later. See section 306(a.2)(l) of the Act, 77 P.S. § 511.2(1); Gardner v. Workers' Compensation Appeal Board (Genesis Health Ventures), 814 A.2d 884 (Pa.Cmwlth.2003), appeal granted, 577 Pa. 703, 847 A.2d 59 (2004). Employer's request on July 23, 2001, was twenty-four weeks too late.

3 . Our scope of review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704.

4 . Employer does not provide any documentation showing when, where and under what circumstances Claimant made such an admission.

5 . We note that Employer’s remand request is based on Wal-Mart Stores, Inc. v. Workers' Compensation Appeal Board (Rider), 837 A.2d 661 (Pa.Cmwlth.2003), appeal granted, - Pa. -, 857 A.2d 182 (2004), which was decided after the WCAB’s decision here. In Wal-Mart Stores, we held that, when an employer challenges an award of total disability benefits and is granted a supersedeas, the sixty-day IRE request period begins to run only after the supersedeas ends and the claimant actually receives 104 weeks of total disability benefits. However, this case does not involve a delay in the payment of total disability benefits due to a supersedeas; thus, the holding in Wal-Mart Stores does not apply here.

To the extent that Employer maintains Claimant should not have received the entire 104 weeks of total disability benefits, Employer attempted to make this same argument before the WCJ. However, instead of an admission by Claimant, Employer relied on a supplemental agreement which allegedly revealed that Claimant worked during the 104-week period. As indicated above, the WCJ did not’rule on the matter because Employer never submitted the supplemental agreement into evidence. It appears that, in requesting a remand here, Employer is seeking a second chance to submit evidence to support its argument.