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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Stephen Hilyer,

:

Petitioner :

:

v.

: NO. 1024 C.D. 2003

:
Workers' Compensation Appeal Board : Argued: February 2, 2004
(Joseph T. Pastrill, Jr. Logging),
:

Respondent
:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE L. COHN, Judge

HONORABLE JAMES R. KELLEY, Senior Judge
OPINION BY SENIOR JUDGE KELLEY FILED: April 21, 2004

Stephen Hilyer (Claimant) petitions for review of an order of the
Workers' Compensation Appeal Board (Board) which affirmed an order of a
Workers' Compensation Judge (WCJ). The WCJ concluded that Joseph T. Patrick,
Jr. Logging (Employer) was entitled, pursuant to the Pennsylvania Workers'
Compensation Act1 (the Act), to the right to request and receive a second
Impairment Rating Evaluation (IRE) within a twelve-month period. We affirm.

Claimant worked for Employer as a logger when, on April 29, 1997,
he was struck on the head by a falling tree limb, suffering a work-related injury to
his spinal cord. Claimant subsequently began receiving benefits under the Act.

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 - 1041.4; 2501 - 2626.

On May 14, 2001, Claimant underwent an IRE by Dr. Matthews,
which evaluation yielded an impairment rating of 55 percent. Employer objected
to Dr. Matthews' impairment rating, asserting that a non-work related injury had
been considered in rendering the determination. Thereafter, Employer's insurer,
the State Workers' Insurer Fund (Insurer),2 requested that Claimant submit to a
second IRE, which Claimant refused.

On February 4, 2002, Insurer filed a Review Petition alleging that
Claimant had refused the requested second IRE. Claimant timely answered
Insurer's Petition, denying that Insurer was entitled to a second IRE due to
Claimant's submission to the initial IRE.

Hearings before the WCJ were subsequently held, at which the sole
issue was stipulated by the parties to be Insurer's entitlement, under the Act and its
promulgated regulations, to a second IRE. Both parties submitted written
argument to the WCJ, who concluded that the Act did grant Insurer the right to
request and receive an IRE twice in a twelve-month period.

By order dated July 9, 2002, the WCJ granted Insurer's Petition, and
further ordered Claimant's attendance at a second IRE. The WCJ further ordered
that, in the face of Claimant's failure to so attend as ordered, Insurer shall be
entitled to a suspension of Claimant's benefits. Claimant timely appealed the
WCJ's order and decision to the Board.

2 Employer initiated this proceeding by and through Insurer. Both parties shall
hereinafter be referred to, collectively, as Insurer.
2.

The Board thereafter heard Claimant's appeal without taking
additional evidence. In its opinion, the Board specifically rejected Claimant's
argument that Insurer was not entitled to a second IRE within twelve months
without providing additional evidence that the status of the impairment has
improved, and affirmed the order and decision of the WCJ. Claimant now timely
appeals to this Court.

This Court's scope of review is limited to determining whether there
has been a violation of constitutional rights, errors of law committed, or a violation
of Board procedures, and whether necessary findings of fact are supported by
substantial evidence. Lehigh County Vo-Tech School v. Workmen's
Compensation Appeal Board (Wolfe), 539 Pa. 322, 652 A.2d 797 (1995).

Claimant presents one issue for our review: whether the WCJ erred as
a matter of law in granting Insurer's request for an additional IRE under the
relevant provision of the Act, and its promulgated regulation. Claimant argues that
Insurer is not entitled to a second IRE without a showing that the status of
Claimant's disability has changed sufficiently to rebut the presumption of
continuing disability. We disagree, in that the Act clearly does not require either
implicitly, and unarguably not explicitly such a prefatory showing as a condition
precedent to a second requested IRE. The Act, in both its particular provisions and
when read as a whole, grants an Insurer the right to a second IRE within a twelve-
month period upon timely request thereof without any prefatory showing.
3.

Section 306(a.2) of the Act3 reads, in part relevant to the matter sub
judice:
Medical examination; impairment rating
(1) When an employe has received total disability
compensation pursuant to clause (a) 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. The degree of impairment
shall be determined based upon an evaluation by a
physician who is licensed in this Commonwealth, who is
certified by an American Board of Medical Specialties
approved board or its osteopathic equivalent and who is
active in clinical practice for at least twenty hours per
week, chosen by agreement of the parties, or as
designated by the department, pursuant to the most recent
edition of the American Medical Association "Guides to
the Evaluation of Permanent Impairment."
(2) If such determination results in an impairment rating
that meets a threshold impairment rating that is equal to
or greater than fifty per centum impairment under the
most recent edition of the American Medical Association
"Guides to the Evaluation of Permanent Impairment," the
employe shall be presumed to be totally disabled and
shall continue to receive total disability compensation
benefits under clause (a). If such determination results in
an impairment rating less than fifty per centum
impairment under the most recent edition of the
American Medical Association "Guides to the Evaluation
of Permanent Impairment," the employe shall then
receive partial disability benefits under clause (b):
Provided, however, that no reduction shall be made until
sixty days' notice of modification is given.

3 Added by the Act of June 24, 1996, P.L. 350.
4.

* * *
(5) Total disability shall continue until it is adjudicated or
agreed under clause (b) that total disability has ceased or
the employe's condition improves to an impairment
rating that is less than fifty per centum of the degree of
impairment defined under the most recent edition of the
American Medical Association "Guides to the Evaluation
of Permanent Impairment."
(6) Upon request of the insurer, the employe shall
submit to an independent medical examination in
accordance with the provisions of Section 314 to
determine the status of impairment: Provided,
however, That for purposes of this clause, the
employe shall not be required to submit to more than
two independent medical examinations under this
clause during a twelve-month period.

* * *
(8)(i) For purposes of this clause, the term "impairment"
shall mean an anatomic or functional abnormality or loss
that results from the compensable injury and is
reasonably presumed to be permanent.
(ii) For purposes of this clause, the term "impairment
rating" shall mean the percentage of permanent
impairment of the whole body resulting from the
compensable injury. The percentage rating for
impairment under this clause shall represent only that
impairment that is the result of the compensable injury
and not for any preexisting work related or non-work
related impairment.

77 P.S. §511.2 (emphasis provided). Additionally, the Bureau of Workers'
Compensation (Bureau) has enacted the following regulation:
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
5.

compelling the employe's attendance at independent
medical examinations or other expert interviews under
Section 314 of the Act (77 P.S. §651).

34 Pa. Code §123.102(g) (emphasis provided).

By its own terms, and as interpreted by this Court, Section 306(a.2)
provides for a procedure to determine whether a claimant, who has received 104
weeks of total disability benefits, should continue receiving total disability
benefits, or should have those benefits modified to reflect the claimant's
determined partial disability. Gardner v. Workers' Compensation Appeal Board
(Genesis Health Ventures), 814 A.2d 884 (Pa. Cmwlth. 2003). This continuation
or modification is based on the claimant's degree of impairment as determined in
accordance with Section 306(a.2): an IRE resulting in an impairment rating equal
to or greater than 50 percent gives rise to a presumption of continuing total
disability, and entitles the claimant to continuing receipt of total disability benefits.
Id. at 886. Conversely, an IRE resulting in an impairment rating of less than 50
percent can concomitantly result in a modification of the claimant's benefits to
reflect partial disability, upon 60 days notice. Id. This special procedure was part
of the General Assembly's 1996 reform effort intended to reduce rising Workers'
Compensation costs and restore efficiency to the Workers' Compensation system.
Torrey and Greenberg, Workers' Compensation Law and Practice, Section 1510 at
294.

In Gardner, we addressed the timeliness of an employer's initial IRE
request, an issue not before us in the instant matter. However, our en banc
decision in Gardner recognizes Subsection (1) of Section 306(a.2) to be the starting
6.

point in the IRE process. Further, Gardner reads Sections 306(a.2)(1) and
306(a.2)(6) in pari materia4 by concluding that "when the insurer has initiated the
procedure in a timely manner and has not obtained a claimant impairment rating of
less than fifty per centum, the insurer may seek additional independent medical
examinations under Section 314 of the Act [77 P.S. §651] to obtain an IRE, but no
more than two during a twelve-month period." Id. at 886-887 (emphasis and
footnote omitted).

This Court again interpreted the express language of Section 306(a.2),
when read as a whole, consistently with Gardner in Dowhower v. Workers'
Compensation Appeal Board (Capco Contracting), 826 A.2d 28 (Pa. Cmwlth.
2003). In Dowhower we again addressed the timeliness of an initial employer IRE
request. In so doing, however, we again noted that Sections 306(a.2)(1) and
306(a.2)(6) protect "claimants from incessant IREs by permitting no more than
two IREs in a 12-month period." Dowhower, 826 A.2d at 31 (emphasis
provided). Our reading of Section 306(a.2) in both Gardner and Dowhower is
clearly consistent with the actual language of the Section itself, which expressly
allows for two Independent Medical Examinations (IME) within a twelve-month
period "to determine the status of impairment". 77 P.S. §511.2(6).

Claimant's attempt to assert that a prefatory showing that a change in
a claimant's disability must be made prior to a request for a second impairment
rating evaluation - whether such evaluation is semantically styled as an IME or an

4 Gardner's reading of these Subsections in pari materia is consistent with Section 1932
of the Statutory Construction Act of 1972, 1 Pa.C.S. §1932.
7.

IRE is additionally grounded in Claimant's assertion that such a showing would
be consistent with the Act's mandate to be construed liberally in favor of injured
workers. However, such a prefatory showing is quite plainly not present anywhere
within the text of Section 306(a.2), and it is axiomatic that when the words of a
statute are free and clear from all ambiguity, the letter of the statute is not to be
disregarded under the pretext of pursuing its spirit. Section 1921(b) of the
Statutory Construction Act of 1972, 1 Pa. C.S. §1921(b); Gardner, 814 A.2d at
886, n.7.
Consequently,
in
the
matter
sub judice, the WCJ and the Board
founded their decisions and orders directly upon the Act's own express language,
and read the Act consistently with the above-cited precedents, in determining that
Insurer was entitled to request two IREs within twelve months. Accordingly, the
Board did not err as a matter of law in so holding.

Claimant further founds his primary argument upon his assertion that
the Act's definition of impairment in Section 306(a.2)(8)(i) reasonably presumes
an abnormality or loss resulting from a compensable injury to be permanent. Thus,
Claimant argues, once it is determined that a claimant's impairment rating is
greater than 50 percent, there is no need to conduct additional IREs without prior
evidence from an IME that the condition or status has improved sufficiently to
rebut the condition presumed to be permanent. Claimant, however, premises this
argument on an incorrect assumption that an IRE and an IME are mutually
exclusive concepts.
8.

Claimant ignores the actual language of Section 306(a.2), which states
that the goal of an IME thereunder is to "determine the status of impairment." 77
P.S. §511.2(6) (emphasis provided). We also note that Claimant's argument on
this point fails to acknowledge that Section 306(a.2)(6), providing for the request
of and submission to an IME, has been placed within the context of Section
306(a.2) as a whole, and the fact that that every other subsection therein relates to
the impairment process. These interrelated provisions each refer to an examination
in the context of determining impairment rating, and they clearly treat an IME as a
type of IRE.5 Accordingly, Section 306(a.2)(6) is properly read as permitting a
maximum of two IREs in a twelve-month period.

Finally, Claimant also argues that the statutory construction and plain
language of Section 306(a.2) has been improperly altered by the Bureau in its
interpretation as articulated in 34 Pa. Code §123.102(g), which states that "[t]he
insurer maintains the right to request and receive an IRE twice in a 12-month
period . . ." We disagree. Under our foregoing analysis, as well as in accordance
with our analyses in Gardner and Dowhower, we hold that Section 306(a.2)(6)
itself, with its stated goal of "determining the status of impairment", grants an
insurer the right to two IREs within a twelve-month period. Regulation
123.102(g), in clarifying an insurer's right thereto, is clearly consonant with the
express language and goal of Section 306(a.2)(6). As such, that regulation is
entitled to deference, as it is well established that an agency's interpretation of a

5 Additionally, both Gardner and Dowhower treat IREs as a type of IME in reading
Sections 306(a.2)(1) and 306(a.2)(6) in pari materia.
9.

statute it is charged with implementing should be afforded great weight, and
overturned only if clearly erroneous. See Cherry v. Pennsylvania Higher
Education Assistance Agency, 537 Pa. 186, 642 A.2d 463 (1994).

Accordingly, we affirm.

_________________________________

JAMES R. KELLEY, Senior Judge
10.

IN THE COMMONWEALTH Court OF PENNSYLVANIA

Stephen Hilyer,

:

Petitioner :

:

v.

: NO. 1024 C.D. 2003

:
Workers' Compensation Appeal Board :
(Joseph T. Pastrill, Jr. Logging),
:

Respondent
:

O R D E R

AND NOW, this 21st day of April, 2004, the order of the Workers'
Compensation Appeal Board, dated April 23, 2003, at A02-2161, is affirmed.
_________________________________

JAMES R. KELLEY, Senior Judge