Village at Palmerton Assisted Living v. Workers' Compensation Appeal Board ( 2015 )

CONCURRING AND DISSENTING OPINION BY

Senior Judge ROCHELLE S. FRIEDMAN.

I agree with the majority’s conclusion that the WCAB erred in determining that Employer was required to request the designation of an IRE physician by filing both Form LIBC-766 and Form LIBC-765 within 60 days of Claimant receiving 104 weeks of temporary total disability. However, I disagree with the majority’s conclusion that Employer’s December 16, 2009, letter addressed to the Bureau amounted to an official, request for designation of a physician to perform an IRE of Claimant. Therefore, I respectfully concur in part and dissent in part.

Because Employer did not submit Form LIBC-766, Employer is not entitled to an automatic change in- disability status. The automatic change requires strict compliance with the statutory requirements. Dowhower v. Workers’ Compensation Appeal Board (CAPCO Contracting), 591 Pa. 476, 919 A.2d 913, 918 (2007). The Supreme Court has spoken on this issue; thus,' I believe that the majority is rewriting the regulation and ignoring its plain meaning. See Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758, 761-62 (2005).¹

Pursuant to section 306(a.2)(l) of the Workers’ Compensation Act (Act), Act of June 2,1915, P.L. 736, as amended, added by Section 4 of the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2(1), an employer must request an IRE within 60 days after a claimant has received 104 weeks of total disability benefits. Here, because Employer’s first IRE request occurred before Claimant had received 104 weeks of total disability benefits, its request was void. See Dowhower, 919 A.2d at 918 (finding that “because the IRE request did not comply with the requirements of section 511.2(1), the IRE itself is void”). '

Therefore, Employer needed to file a new IRE request. Section 306(a.2)(l) of the Act imposes a mandatory obligation on the employer to request an IRE within the time limits specified. Gardner, 888 A.2d at 767, In accordance with 34 Pa.Code § 123.104(c) (emphasis added), “[t]he request to designate a physician shall be made on Form LIBC-766.” The statute requires Employer to request an IRE, and the Bureau’s regulations mandate that Employer’s IRE request be on the proper form, Form LIBC-766.² This court has consistently held that “Commonwealth agencies must follow their own regulations.” Novak v. Commonwealth, 106 Pa.Cmwlth. 232, 525 A.2d 1258, 1260 (1987). Further, we must interpret agency regulations as we interpret statutes unless the interpretation is “ ‘clearly erroneous or inconsistent with the statute under which the regulation is promulgated.’ ” Gardner, 888 A.2d at 767 (citation omitted). We interpret statutes to effectuate the intent of the General Assembly, which is best indicated by the statute’s language. Id. at 761. “[W]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregardéd under the pretext of pursuing its spirit,” but actually “gleaned from those very words.” Id. at 762.

Here, in its prayer for relief, Employer seeks to have us follow the. spirit-of the law rather than its legislative intent; however, the statute and regulations are clear. Thus, the Bureau could not treat Employer’s letter as a proper IRE request, anymore than it could a telephone call or a text. Further, I disagree with the majority’s conclusion that requiring compliance with the regulations “is elevating form over substance.” (Maj. Op. at 1212.)

Although Employer did not submit a timely Form LIBC-766 entitling it to an automatic change in disability status, Employer is not without recourse. Employer could present the IRE as medical evidence in support of its request for a change in disability status. See Gardner, 888 A.2d at 767 (stating that under section 306(a.2)(6) of the Act, “an insurer may request [that] an employee submit to an IRE beyond the sixty-day window; the consequences of such examination however, cannot operate to automatically reduce the claimant’s benefits”) (citing 77 P.S. § 511.2(6)); Westmoreland Regional Hospital v. Workers’ Compensation Appeal Board (Pickford), 29 A.3d 120, 126-27 (Pa.Cmwlth.2011) (en banc) (stating that an employer must present the IRE as medical evidence when the IRE request is beyond the 60-day window). Thus, Employer is not precluded from changing Claimant’s disability status; Employer merely needs to obtain this relief through the traditional administrative process. See Gardner, 888 A.2d at 768; and Stanish v. Workers’ Compensation Appeal Board (James J. Anderson Construction Company), 11 A.3d 569, 574, 577 (Pa.Cmwlth.2010).

Accordingly, I would affirm the decision oftheWCAB.

1 . I emphasize that Employer is not without recourse if it does not obtain an automatic change; Employer must merely prove, that it is entitled to a change - in disability status ■ through the traditional administrative process.

2 . I note that there is no requirement, as the majority suggests, that the Bureau inform Employer to file an LIBC Form-766 in order to request the designation of an IRE physician. (See Maj. Op. at 1211.)