Wellington Foods v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge COHN JUBELIRER.

Respectfully, I dissent.

In my view, when a claimant attends an IRE without objecting to the timeliness of the employer’s request, the claimant has waived the opportunity to object afterward.

I disagree with the majority that Claimant did not waive his opportunity to argue that the IRE was untimely. If Claimant objected to attending the IRE, he should have made his objection known prior to attending. Further, although I disagree that Claimant was “threatened with a cessation of benefits” if he failed to attend the IRE Op. at 153, I do not believe this is relevant. It is not merely his attendance at the IRE that waives the objection, but his failure to object prior to attending.

This situation is no different than a case where a claimant attended a vocational interview without objecting to the lack of Department approval of the expert’s qualifications to conduct such an interview. That is exactly what occurred in Wheeler v. Workers’ Compensation Appeal Board (Reading Hospital and Medical Center), 829 A.2d 730, 735 (Pa.Cmwlth.2003). There, a claimant attended a vocational interview as requested by the employer, who sought to modify the claimant’s benefits. The claimant did not object, prior to attending, that the expert had not been one approved by the Department of Labor and Industry. In fact, his counsel stated that he had no objection to the qualifications of the expert witness. After the. hearing was closed, the WCJ raised the issue in his opinion, and, based on the lack of Department approval of the expert, denied the modification petition.1 Employer *155appealed the WCJ’s decision, and the Board reversed holding that the claimant, by voluntarily attending the interview, and failing to object to the admission of the expert’s deposition, had waived any challenge to his credentials. On appeal, we. affirmed, stating that:

[A]n issue is waived unless it is preserved at every stage of the proceeding. ... The strict doctrine of waiver applies to a workers’ compensation proceeding. ... The purpose of the waiver doctrine is to ensure that the WCJ is presented with all cognizable issues so that the “integrity, efficiency, and orderly administration of the workmen’s compensation scheme of redress for work-related injury” is preserved.

Wheeler, 829 A.2d at 734 (citations omitted). As in Wheeler, this case also involves a situation where one party, i.e., Claimant, failed to raise an objection before an examination, in this case a medical examination, and then attempted to raise it afterwards. Thus, I believe the outcome as to waiver should be controlled by Wheeler.

I also do not agree with the majority’s premise that the Claimant was coerced into attending the IRE. Board Regulation 123.102(h), 34 Pa.Code § 123.102(h), upon which the notion of coercion is based, provides that: “The employe’s failure to attend the IRE under this section may re-suit in a suspension of the employe’s right to benefits consistent with section 314(a) of the act.” (Emphasis added.) However, this regulation does not state that an employee cannot attend the IRE under protest, while objecting to the timeliness of the request. Furthermore, the regulation does not provide that a Claimant will be penalized if he petitions for a determination as to whether he needs to attend the IRE, instead of failing to attend without excuse. Indeed, a claimant who petitions would be acting to streamline procedures.

Further, I do not believe that Dowhower v. Workers’ Compensation Appeal Board (Capeo Contracting), 826 A.2d 28 (Pa.Cmwlth.2003), requires us to conclude that there cannot be a waiver. In Dowhower, the insurer’s request was timely and, thus, the claimant in that case could not object and was required to attend the IRE. Because there was a timely request, any additional discussion of an untimely request was dicta. In that dicta, the Court theorized that attending an IRE would not waive a challenge to the timeliness of the request, because attendance is not voluntary, since a claimant who fails to attend the IRE is subject to possible sanction. However, this discussion did not consider that a claimant could object to the timeliness of the examination before attending, in order to preserve the objection in the most efficient manner possible.2,3

*156Accordingly, because Claimant attended the IRE without objection, I believe that he waived his right to later challenge the timeliness of the IRE request and I would, therefore, reverse the Board’s order.

. In so doing, the WCJ relied on this Court's then recently filed opinion in Caso v. Worker’s Compensation Appeal Board (School District of Philadelphia), 790 A.2d 1078 (Pa.Cmwlth.2002), reversed, 576 Pa. 287, 839 A.2d 219 (2003). In Caso, we had held that the Department of Labor and Industry was required to approve a vocational expert’s qualifications to interview a claimant for earning capacity as*155sessment before the employer makes its request for an interview.

. This is similar to the requirement in the civil rules that parties must make their objections before or during depositions; otherwise, they are waived. See Pa. R.C.P. No. 4016(b). The Board, too, has a similar requirement for depositions, which provides, "Objections shall be made and the basis for the objections stated at the time of the taking of the depositions. ...” 34 Pa.Code § 131.66(b).

. I also continue to believe that Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 814 A.2d 884 (Pa.Cmwlth.2003), petition for allowance of appeal granted, 577 Pa. 703, 847 A.2d 59 (2004), was incorrectly decided and, accordingly, under my reading of the law, there would be no timeliness issue here. See Gardner, (Cohn, J., dissenting), in which I set out my position that, under the Act, an insurer is not forever precluded from requesting an IRE if it fails to request one within the 60-day time period in Section 306(a.2)(l) of the Act because the Act contemplates two separate instances when an insurer can request a medical examination of *156the claimant to determine the status of impairment:

The first instance is after a claimant receives 104 weeks of disability, provided, however, the request is made within 60 days “upon the expiration of the one hundred four weeks." If an insurer requests an IRE outside the 60-day time limit, it would be precluded from changing total benefits to partial under Section 306(a.2)(l). However, I disagree with the majority that, if an insurer fails to make the request at this time, it is precluded from ever obtaining an IRE, a necessary step to reducing benefits from total to partial.
There is also a second instance where an IRE may be requested. Under Section 306(a.2)(6), an employer may request an independent medical examination at any time after the injury pursuant to Section 314 "to determine the status of impairment.” Section 314 allows an employer to request a physical examination at any time after an injury, provided a claimant is not required to undergo more than two examinations in a 12-month period; there is no indication that this broad provision is to be conditional upon an earlier request. To give effect to the broad language of Section 306(a.2)(6) of the Act, an employer must be allowed to request the medical examination at any time, and the purpose of the examination can be, inter alia, to reassess the impairment rating, irrespective of how long it has been since the 104 weeks, referred to in subsection (a.2)(l), have passed.

Gardner, 814 A.2d at 887 (Cohn, J., dissenting) (emphasis in original).