1. (a) During the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability compensation benefits, the insurer may request the employee’s attendance at an IRE. If the evaluation is scheduled to occur during this 60-day time period, the adjustment of the benefit status shall be automatic and relate back to the expiration of the employee’s receipt of 104 weeks of total disability compensation benefits. If the evaluation is requested and occurs beyond the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability compensation benefits, the adjustment of the disability status must be achieved through adjudication or agreement of the parties. The adjustment of the disability status through adjudication shall be effective as of the date of the evaluation or as determined by the evaluating physician.
2. (b) Absent agreement between the insurer and the employee, an IRE may not be performed prior to the expiration of the employee’s receipt of 104 weeks of total disability compensation benefits.
3. (c) When an insurer requests the employee’s attendance at an IRE during the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability compensation benefits and the employee fails, for any reason, to attend the IRE, when the failure results in the performance of the IRE more than 60 days beyond the expiration of the 104-week period, the adjustment of disability status shall be automatic and relate back to the expiration of the employee’s receipt of 104 weeks of total disability compensation benefits.
4. (d) The employee’s receipt of 104 weeks of total disability compensation benefits shall be calculated on a cumulative basis.
5. (e) The insurer shall request the employee’s attendance at the IRE in writing on Form LIBC-765, ‘‘Impairment Rating Evaluation Appointment,’’ and specify therein the date, time and location of the evaluation and the name of the physician performing the evaluation, as agreed by the parties or designated by the Department. The request shall be made to the employee and employee’s counsel, if known.
6. (f) Consistent with section 306(a.3)(6) of the act (77 P.S. § 511.3(6)), the insurer’s failure to request the evaluation during the 60-day period subsequent to the expiration of the employee’s receipt of 104 weeks of total disability compensation benefits does not result in a waiver of the insurer’s right to compel the employee’s attendance at an IRE, however the results of the evaluation may only be used for adjustment of the disability status through adjudication or agreement of the parties.
7. (g) 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 compelling the employee’s attendance at independent medical examinations or other expert interviews under section 314 of the act (77 P.S. § 651).
8. (h) The employee’s failure to attend the IRE under this section may result in a suspension of the employee’s right to benefits consistent with section 314(a) of the act.

Authority

The provisions of this § 123.102 amended under sections 401.1 and 435(a) of the Workers’ Compensation Act (77 P.S. § § 710 and 991(a)); and section 2205 of The Administrative Code of 1929 (71 P.S. § 565).

Source

The provisions of this § 123.102 amended January 24, 2025, effective January 25, 2025, 55 Pa.B. 719. Immediately preceding text appears at serial pages (318297) to (318298).

Notes of Decisions

Conflict with Statute

Section 306(a.2)(6) of the Workers’ Compensation Act (77 P. S. § 511.2(a.2)(6)), requires an insurer to request an impairment rating evaluation (IRE) within 60 days of the expiration of the 104-week period of total disability for purposes of obtaining the automatic relief set forth in 77 P. S. § 511.2(2). An insurer’s failure to request an IRE within the established time frame does not preclude the insurer from requesting that an employee submit to an IRE at a later time. The results of the IRE will not be self-executing, but rather applicable to a traditional administrative process. Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 814 A.2d 884 (Pa. Cmwlth. 2003), 577 Pa. 703, 877 A.2d 59 (2004); affirmed Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 888 A.2d 758, 768 (Pa. 2005).

Impairment Rating Evaluations (IREs)

An employer is entitled to the timely request of two Impairment Rating Evaluations (IREs) within a 12 month period without any requirement that employer demonstrate a change in claimant’s medical condition, permanent impairments, and/or disability. Lewis v. Workers’ Compensation Appeal Board (Wal-Mart Stores, Inc.), 856 A.2d 313, 318 (Pa.Cmwlth. 2004).

Cross References

This section cited in 34 Pa. Code § 123.105 (relating to impairment rating determination).