Designation of IRE Physician Can Be Requested By Insurer as a First Step

Since coming into the Pennsylvania Workers’ Compensation Act (Act) in the 1996 amendments, the Impairment Rating Evaluation (IRE) is here to stay. This is an important tool available to the workers’ comp insurance carriers in PA, and can be used to contain exposure on a file. An entire page devoted just to the IRE process is on the website of Brilliant & Neiman LLC.

Recently, the Commonwealth Court of PA addressed the method to select a doctor to perform an IRE in Logue v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania). The Act states, in relevant part of Section 306(a.2)(1), that the doctor to implement an IRE is to be ” . . . chosen by agreement of the parties, or as designated by the department . . . ” The Court was called upon to determine whether the workers’ compensation insurance carrier has the choice between those two options.

The injured worker sustained a strain of his wrist. After he had received workers’ compensation total disability benefits for more than 104 weeks, the workers’ comp insurance carrier filed a Request for Designation of IRE Physician with the Bureau of Workers’ Compensation. The injured worker refused to attend the IRE, believing that the statute cited above meant that the insurance carrier must first seek agreement from the injured worker on an IRE physician, before requesting that the Bureau designate the physician.

This argument was rejected by the Workers’ Compensation Judge (WCJ), the Workers’ Compensation Appeal Board (WCAB), and then the Commonwealth Court of Pennsylvania. The Court simply noted, “Section 306(a.2)(1) merely lists two alternative methods for selecting the IRE physician and does not state that the designation by the Bureau is limited to the situation where the parties have been unable to agree.” If the Pennsylvania legislature had meant for the “agreement of the parties” option to be a prerequisite to the “designation by the department” option, said the Court, the Act would have been worded to reflect such a desire.