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Injured worker who attends impairment evaluation does not waive right to object to timeliness of employer’s request
An injured worker who attended an impairment rating evaluation did not waive his right to object to the timeliness of the employer’s request, the Commonwealth Court ruled on Dec. 10 in Wellington Foods v. WCAB (Rice). In a 6-page opinion and order written by Judge Rochelle S. Friedman, the Court affirmed an order of the WCAB to reinstate total disability benefits to Thomas Rice, the injured worker. According to the opinion, Rice, who suffered a work-related injury in 1998 had received 104 weeks of total disability benefits. In 2001, the employer requested that the worker undergo an impairment rating evaluation (IRE). Rice attended the IRE, which indicated that he had a 25% impairment rating, according to the opinion. The employer subsequently filed a notice of change in his disability status. The claimant then filed a petition to reinstate his total disability benefits alleging that the employer failed to request the IRE within 60 days of the expiration of 104 weeks of total disability as required under section 306(a.2)(1) of the Workers’ Compensation Act. A WCJ concluded that because the employer failed to request the IRE within 60 days after the claimant received 104 weeks of total disability. The WCAB then affirmed the WCJ’s ruling. On appeal to the Commonwealth Court, the employer argued that the WCAB erred because although the employer failed to timely request the IRE, the claimant agreed to the IRE by attending it. The Court did not agree: "We are not persuded that Claimant ‘otherwise agreed to’ the IRE simply because Claimant attended the IRE," wrote Judge Friedman. A dissenting opinion was filed by Judge Cohn Jubelirer.
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| Selected to the Top 100 List in Pennsylvania and the Top 100 List in Philadelphia in 2009 Pennsylvania Super Lawyers magazine |
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