There is no requirement under the Act that the specialty of a physician who performs an impairment rating evaluation be directly related to the nature of the claimant's work injury.

In this case, following her work injury, the claimant underwent an Impairment Rating Evaluation ("IRE"). The IRE physician determined that the claimant had an impairment rating of 15%. The employer then issued a Notice of Change of Workers’ Compensation Disability Status, indicating that the claimant's status had changed from total to partial disability. Approximately one year later, the claimant filed a Petition to Review, requesting the IRE be set aside. The claimant contended that the physician performing the IRE was not qualified to do so based on the claimant's condition. The employer contended that the claimant's petition was prohibited by §306 (a) (2) (4) of the Act because the claimant first failed to secure a determination that the threshold impairment rating was equal to or greater than 50%. The employer also contended that the physician was qualified to perform the IRE. The workers' compensation judge dismissed the petition filed by the claimant. The workers' compensation judge determined that the physician was qualified to perform the IRE of the claimant and further concluded that the claimant failed to prove that the qualifications of the physician to perform a "pulmonary evaluation" had any relevance to the doctor's qualifications to perform the IRE. As to the employer's position, the workers' compensation judge concluded that pursuant to the Bureau of Workers’ Compensation ("Bureau") Regulation §123.105 (f), the claimant, at any time during the receipt of 500 weeks of partial disability compensation, may appeal the adjustment of benefit status by filing a Petition for Review. The Appeal Board affirmed. On appeal, the Commonwealth Court rejected the claimant's argument that her due process rights were violated by the workers' compensation judge's decision. The court noted that the inclusion of the 60-day notice provision in §306 (a) (2) of the Act leads to the conclusion that it was intended to give an employee the right to immediately appeal the reduction of his or her disability status before that reduction became effective. The court further noted that the claimant did not file her Petition to Challenge the IRE until almost a year after she was provided the notice of a change in her disability status. The court concluded that a claimant cannot sit on her appeal rights and then claim that due process was denied. The court also said that §306 (a) (2) (4) of the Act imposed a requirement that there be a determination that the employee meets the threshold impairment rating that is equal to or greater than 50% impairment under the most recent guidelines when an employee appeals the adjustment of benefit status at any time during the 500 weeks of partial disability. The court, concluded that the workers' compensation judge erred by ignoring the language of §306 (a) (2) (4) of the Act and relying upon the regulation to find that the claimant had properly filed her Petition to Review.

Case Law Alert - 1st Qtr 2010