IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hitachi Metals Automotive               :
Components (USA) and                    :
Broadspire/Sompo,                       :
                  Petitioners           :
                                        :
            v.                          :   No. 176 C.D. 2016
                                        :   SUBMITTED: August 5, 2016
Workers’ Compensation Appeal            :
Board (Bieber),                         :
                Respondent              :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE HEARTHWAY                          FILED: October 31, 2016



            Hitachi Metals Automotive Components and its insurance carrier,
Broadspire/Sompo (together, Employer), petition for review of that part of the
January 8, 2016, order of the Workers’ Compensation Appeal Board (Board)
affirming the decision of a workers’ compensation judge (WCJ) to grant Eric
Bieber’s (Claimant) Impairment Rating Evaluation (IRE) review petition. The
only issue raised by Employer on appeal is whether Claimant’s petition
challenging the IRE was filed timely. We affirm.
              On March 10, 2010, Claimant sustained a work-related injury. On
February 25, 2011, the parties filed an agreement for compensation with the
Bureau of Workers’ Compensation (Bureau), which listed Claimant’s injury as
“abdomen-inguinodynia with surgery- pulling a fixture.” (WCJ’s Findings of Fact,
No. 7.) The agreement further provided that Claimant was disabled by the work
injury on April 8, 2010, after his surgery. Claimant began receiving workers’
compensation benefits on April 27, 2010.


              This case is about an IRE request made by Employer on May 2, 2012,
prior to Claimant receiving 104 weeks of total disability benefits under section
306(a.2)(1) of the Workers’ Compensation Act (Act).1                  Claimant would have
received 104 weeks of benefits by May 2, 2012, but for Claimant returning to work
for a period of two weeks and four days in May and June 2010, and not receiving
benefits during that time. Thus, Claimant did not receive 104 weeks of benefits
until May 12, 2012. (Board’s Op. at 10.)


              After Employer’s untimely request, the IRE was performed on August
21, 2012. On September 20, 2012, Claimant filed a review petition challenging the
IRE (first petition). On February 4, 2013, Employer filed a Notice of Change in
Workers’ Compensation Disability Status (Form LIBC-764) with the Bureau,
notifying Claimant that his disability status will be changing from total to partial



       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). Section 306(a.2)(1) of the Act provides an employer the opportunity to
request an IRE within 60 days after a claimant receives 104 weeks of total disability benefits to
determine the degree of impairment due to the injury. 77 P.S. § 511.2(1).




                                               2
disability effective August 21, 2012, the date of the IRE. On February 8, 2013,
Claimant filed a second review petition, challenging the IRE (second petition).


              At a hearing on March 7, 2013, Claimant’s attorney questioned the
timeliness of Employer’s IRE request under section 306(a.2)(1) of the Act. 77 P.S.
§ 511.2(1). The parties also discussed the “duplicative” nature of the first and
second petitions. Subsequently, Claimant filed a motion to withdraw the second
petition, which the WCJ granted on April 11, 2013, without prejudice.


              In its May 15, 2014 decision, the WCJ determined that Employer’s
request for designation of an IRE physician was untimely because it occurred
before Claimant received 104 weeks of total disability benefits. The WCJ granted
Claimant’s first petition and set aside the IRE as void, reinstating Claimant’s
benefits.   Employer appealed to the Board, which affirmed.                  Employer now
petitions this Court for review.2


              Employer only contends that the WCJ erred in considering Claimant’s
first petition, stating that it was premature because it was filed before Employer
notified Claimant of a change in disability status on February 4, 2013. Employer
asserts that because Claimant’s first petition was premature and Claimant withdrew
the second petition, there was no timely petition pending before the WCJ on which
to grant relief. We disagree.



       2
           Our 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.



                                              3
             Employer bases its argument on 34 Pa. Code § 123.105(d)(5), which
states that a claimant may immediately appeal an adjustment of disability status
based on an IRE after the employer provides claimant with a Form LIBC-764,
giving notice of a change in disability status. Employer argues that Claimant’s
first petition was filed well before Employer notified Claimant by Form LIBC-764
and, therefore, Claimant’s first petition was premature.


             However, Employer misconstrues the nature of Claimant’s first
petition. Claimant was not seeking a review of a change in his disability status.
Claimant was challenging the validity of the IRE itself. The regulation set forth at
34 Pa. Code § 123.105(d)(5) controls when a claimant may challenge a change in
disability status announced by the filing of a Form LIBC-764, but it does not
control when a claimant may challenge the validity of an IRE.


             An IRE is considered void if it is not timely. Dowhower v. Workers’
Compensation Appeal Board (Capco Contracting), 919 A.2d 913, 917 (Pa. 2007).
In Dowhower, the Supreme Court determined that an IRE request made before the
claimant received 104 weeks of total disability benefits was premature.         The
Supreme Court further determined that “because the IRE request did not comply
with the requirements of [77 P.S. §] 511.2(1), the IRE itself is void.” Id. at 918.
“[S]ection 511.2(1) imposes a mandatory obligation on the [employer] to request
an IRE within the time limits specified.” Id. If employer does not timely comply,
its request for an IRE is illegal and void. Id.


             There is no prohibition of a claimant challenging an IRE’s validity
before a claimant is notified of a change in disability status by Form LIBC-764.
This Court has encountered such petitions before.          See Barrett v. Workers’

                                           4
Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280, 1288 (Pa. Cmwlth.
2010). In Barrett, “[c]laimant filed a review petition challenging the validity of the
IRE.    Then, after receiving the [n]otice [of the change in disability status],
[c]laimant filed a second review petition challenging the change of his disability
status.” Id. at 1284.


              The Board did not err in ruling on Claimant’s first petition
challenging the IRE.3 Accordingly, we affirm.



                                          _________________________________
                                          JULIA K. HEARTHWAY, Judge




    3
      We note that Employer is not precluded from challenging Claimant’s disability status.
However, Employer must obtain this relief through the traditional administrative process. See
Stanish v. Workers’ Compensation Appeal Board (James J. Anderson Construction Co.), 11
A.3d 569, 577 (Pa. Cmwlth. 2010).



                                             5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Hitachi Metals Automotive             :
Components (USA) and                  :
Broadspire/Sompo,                     :
                  Petitioners         :
                                      :
            v.                        :   No. 176 C.D. 2016
                                      :
Workers’ Compensation Appeal          :
Board (Bieber),                       :
                Respondent            :



                                ORDER


            AND NOW, this 31st day of October, 2016, we hereby affirm the
order of Workers’ Compensation Appeal Board.




                                   _________________________________
                                   JULIA K. HEARTHWAY, Judge