A premature request for an IRE does not necessarily render an IRE obtained under Section 306(a.2)(1) of the Workers’ Compensation Act invalid.
In the recent case of The Village of Palmerton Assisted Living v. WCAB (Kilgallon) the court addressed the confusing issue of how to best rectify the situation where an employer miscalculates the 104 week period of temporary total disability and prematurely requests an IRE.
The court held that in order to “cure” a premature request for IRE under Section 306 (a.2) (1), the employer may simply write a letter to the Bureau attaching the Form LIBC-766, and request a designation by the Bureau for the IRE. However, this request must be filed within the sixty day period following the expiration of the 104 week period for it to be considered timely. The court, examined the Supreme Court’s determination in the Dowhower case and determined that the substantive requirements of requesting an IRE sixty days following the expiration of 104 weeks can be satisfied in this fashion. Therefore, if a request is filed prematurely, before the expiration of the 104 weeks, an employer would simply need to send a letter to the Bureau, attaching a copy of the LIBC-766 original request for a designation, within sixty days following that expiration. This will allow the employer to obtain a change in status as a matter of right, rather than filing a Petition and litigating the matter before a Workers’ Compensation Judge.