On Oct. 20, 2009, the Pennsylvania Supreme Court granted the claimant’s petition for allowance of appeal in Diehl v. W.C.A.B. (IA Construction and Liberty Mutual Insurance). The court indicated that it would be deciding whether the Commonwealth Court erred in its interpretation of 77 P.S. § 551.2 by holding that the employer did not need to present evidence of job availability or earning power in order to change the claimant’s disability status from total to partial in an untimely impairment rating evaluation (IRE) situation. Moreover, the justices set out to decide whether the Commonwealth Court’s holding conflicted with the Supreme Court’s own decision in Gardner v. WCAB (Genesis Health Ventures) . The Supreme Court has now decided Diehl and answered both questions.

The practitioner will recall that in the Gardner decision from 2005, the Supreme Court decided that an employer who fails to timely avail itself of an IRE’s automatic reduction provision under Section 306(a.2) of the Workers’ Compensation Act must seek a change in disability benefit status from total to partial through the “traditional administrative process.” Essentially, it was decided that if an employer did not request an IRE within 60 days of the expiration of 104 weeks of total disability, the exclusive remedy for the non-automatic reduction was through a modification petition.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]