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Workers Compensation News Summer 2016

Employer Not Obligated to Engage in Good Faith Attempt with Injured Worker to Select a Mutually Agreed Upon Doctor to Perform an IRE

By John W. Zatkos, Jr., Esq.
 
 
In Beasley v. Peco Energy Co., the Workers’ Compensation Appeals Board (WCAB) found that an employer is not required to engage in a good faith attempt with an injured worker to select a mutually acceptable physician for an Impairment Rating Evaluation (IRE). 
 
Mr. Beasley was injured in April 2009 and began receiving total disability benefits that same month. In April 2011, the employer filed a Request for Designation of a Physician to perform an IRE. The injured worker objected. The employer filed a Petition for Physical Examination, which was granted. The physician and employer issued a notice of Change of Workers’ Compensation Disability status. Mr. Beasley filed a Petition Review. However, the physician who performed the IRE died before he could testify.
 
Once again, the employer filed a Request for Designation of a Physician to perform an IRE. The injured worker objected to the designation of a physician to perform an IRE absent a good faith effort by the parties to identify a mutually agreeable doctor. The Department issued a Notice of Designation of IRE, designating Dr. Rodriguez. 
 
The injured worker filed an instant review petition, alleging, among other issues, that the IRE was defective because a good faith effort to find a mutually agreeable physician was not made. The Workers’ Compensation Judge agreed, causing the employer to file this appeal. The WCAB found that judge had erred in ruling for the injured worker in this instance. The WCAB cited Logue v WCAB (Commonwealth of PA). In that case, the Court specifically held that Section 306(a.2)(1) “merely lists two alternative methods for selecting the IRE physician and does not state that the designation by the Department is limited to the situation where the parties have been unable to agree.”
 
What does this mean? Although the Workers’ Compensation Act lists two alternative methods for selecting an IRE physician, it does not require that an employer must engage in a good faith attempt to select a mutually acceptable physician before requesting the Department to assign a physician.
 

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