Subchapter B. IMPAIRMENT RATINGS

§ 123.101. Purpose.

 (a)  During the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability benefits, the insurer may request the employee’s attendance at an IRE. If the evaluation is scheduled to occur during this 60-day time period, the adjustment of the benefit status shall relate back to the expiration of the employee’s receipt of 104 weeks of total disability benefits. In all other cases, the adjustment of the disability status shall be effective as of the date of the evaluation or as determined by the evaluating physician.

 (b)  Absent agreement between the insurer and the employee, an IRE may not be performed prior to the expiration of the employee’s receipt of 104 weeks of total disability benefits.

 (c)  When an insurer requests the employee’s attendance at an IRE during the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability benefits and the employee fails, for any reason, to attend the IRE, when the failure results in the performance of the IRE more than 60 days beyond the expiration of the 104-week period, the adjustment of disability status shall relate back to the expiration of the employee’s receipt of 104 weeks of total disability benefits.

 (d)  The employee’s receipt of 104 weeks of total disability benefits shall be calculated on a cumulative basis.

 (e)  The insurer shall request the employee’s attendance at the IRE in writing on Form LIBC-765, ‘‘Impairment Rating Evaluation Appointment,’’ and specify therein the date, time and location of the evaluation and the name of the physician performing the evaluation, as agreed by the parties or designated by the Department. The request shall be made to the employee and employee’s counsel, if known.

 (f)  Consistent with section 306(a.2)(6) of the act (77 P. S. §  511.2), the insurer’s failure to request the evaluation during the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability benefits may not result in a waiver of the insurer’s right to compel the employee’s attendance at an IRE.

 (g)  The insurer maintains the right to request and receive an IRE twice in a 12-month period. The request and performance of IREs may not preclude the insurer from compelling the employee’s attendance at independent medical examinations or other expert interviews under section 314 of the act (77 P. S. §  651).

 (h)  The employee’s failure to attend the IRE under this section may result in a suspension of the employee’s right to benefits consistent with section 314(a) of the act.

   Conflict with Statute

   Section 306(a.2)(6) of the Workers’ Compensation Act (77 P. S. §  511.2(a.2)(6)), requires an insurer to request an impairment rating evaluation (IRE) within 60 days of the expiration of the 104-week period of total disability for purposes of obtaining the automatic relief set forth in 77 P. S. §  511.2(2). An insurer’s failure to request an IRE within the established time frame does not preclude the insurer from requesting that an employee submit to an IRE at a later time. The results of the IRE will not be self-executing, but rather applicable to a traditional administrative process. Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 814 A.2d 884 (Pa. Cmwlth. 2003), 577 Pa. 703, 877 A.2d 59 (2004); affirmed Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 888 A.2d 758, 768 (Pa. 2005).

   Impairment Rating Evaluations (IREs)

   An employer is entitled to the timely request of two Impairment Rating Evaluations (IREs) within a 12 month period without any requirement that employer demonstrate a change in claimant’s medical condition, permanent impairments, and/or disability. Lewis v. Workers’ Compensation Appeal Board (Wal-Mart Stores, Inc.), 856 A.2d 313, 318 (Pa.Cmwlth. 2004).

 (a)  Physicians performing IREs shall:

   (1)  Be licensed in this Commonwealth and certified by an American Board of Medical Specialties-approved board or its osteopathic equivalent.

   (2)  Be active in clinical practice at least 20 hours per week.

 (b)  For purposes of this subchapter, the phrase ‘‘active in clinical practice’’ means the act of providing preventive care and the evaluation, treatment and management of medical conditions of patients on an ongoing basis.

 (c)  Physicians chosen by employees to perform IREs, for purposes of appealing a previous adjustment of benefit status, shall possess the qualifications in subsection (a) and shall be active in clinical practice as specified in subsection (b).

 (d)  In addition to the requirements of subsections (a) and (b), physicians designated by the Department to perform IREs shall meet training and certification requirements which may include, but are not limited to, one or more of the following:

   (1)  Required attendance at a Departmentally approved training course on the performance of evaluations under the AMA “Guides to the Evaluation of Permanent Impairment.”

   (2)  Certification upon passage of a Departmentally approved examination on the AMA ‘‘Guides to the Evaluation of Permanent Impairment.’’

   (3)  Other requirements as approved by the Department.

 (a)  The insurer is responsible for scheduling the initial IRE. Only the insurer may request that the Department designate an IRE physician.

 (b)  The Department’s duty to designate an IRE physician pertains only to the initial IRE. A list of Departmentally approved IRE physicians will be available upon request.

 (c)  The request to designate a physician shall be made on Form LIBC-766, ‘‘Request for Designation of a Physician to Perform an Impairment Rating Evaluation.’’

 (d)  Within 20 days of receipt of the designation request, the Department will designate a physician to perform the IRE.

 (e)  The Department will provide the name and address of the physician designated to perform the IRE to the employee, the insurer and the attorneys for the parties, if known.

   Employer Cannot Unilaterally Select IRE Physician

 (a)  When properly requested under §  123.102 (relating to IRE requests), an IRE shall be conducted in all cases and an impairment rating determination must result under the most recent edition of the AMA ‘‘Guides to the Evaluation of Permanent Impairment.’’

 (b)  To ascertain an accurate percentage of the employee’s whole body impairment, when the evaluating physician determines that the compensable injury incorporates more than one pathology, the evaluating physician may refer the employee to one or more physicians specializing in the specific pathologies which constitute the compensable injury. Any physician chosen by the evaluating physician to assist in ascertaining the percentage of whole body impairment shall possess the qualifications as specified in §  123.103(a) and (b) (relating to physicians). The referring physician remains responsible for determining the whole body impairment rating of the employee.

 (c)  The physician performing the IRE shall complete Form LIBC-767, ‘‘Impairment Rating Determination Face Sheet’’ (Face Sheet), which sets forth the impairment rating of the compensable injury. The physician shall attach to the Face Sheet the ‘‘Report of Medical Evaluation’’ as specified in the AMA ‘‘Guides to the Evaluation of Permanent Impairment.’’ The Face Sheet and report shall be provided to the employee, employee’s counsel, if known, insurer and the Department within 30 days from the date of the impairment evaluation.

 (d)  If the evaluation results in an impairment rating of less than 50%, the employee shall receive benefits partial in character. To adjust the status of the employee’s benefits from total to partial, the insurer shall provide notice to the employee, the employee’s counsel, if known, and the Department, on Form LIBC-764, ‘‘Notice of Change of Workers’ Compensation Disability Status,’’ of the following:

   (1)  The evaluation has resulted in an impairment rating of less than 50%.

   (2)  Sixty days from the date of the notice the employee’s benefit status shall be adjusted from total to partial.

   (3)  The adjustment of benefit status does not change the amount of the weekly workers’ compensation benefit.

   (4)  An employee may only receive partial disability benefits for a maximum of 500 weeks.

   (5)  The employee may appeal the adjustment of benefit status to a workers’ compensation judge by filing a Petition for Review with the Department.

 (e)  If the evaluation results in an impairment rating that is equal to or greater than 50%, the employee shall be presumed to be totally disabled and shall continue to receive total disability compensation. The presumption of total disability may be rebutted at any time by a demonstration of earning power in accordance with section 306(b)(2) of the act (77 P. S. §  512(2)) or by a subsequent IRE which results in an impairment rating of less than 50%.

 (f)  At any time during the receipt of 500 weeks of partial disability compensation, the employee may appeal the adjustment of benefit status to a workers’ compensation judge by filing a Petition for Review.

   Presumption of Total Disability Can Be Rebutted

   Employer may seek to change claimant’s status based on an independent medical examination and earning power assessment, even where an impairment rating evaluation determined claimant to be at least 50% impaired; an impairment rating of 50% fixes a presumption of total disability status, but it is a presumption that can be rebutted by evidence that the claimant can perform some work. Sign Innovation v. W.C.A.B. (Ayers), 937 A.2d 623, 626, 628 (Pa. Cmwlth. 2007).