DISSENTING OPINION BY
Judge SMITH-RIBNER.I respectfully dissent. As all participants recognize, the issue in this case is the meaning of Section 306(a.2)(5) and (6) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.2(5) and (6), as interpreted by the Supreme Court in Gardner v. Workers’ Compensation Appeal Board *109(Genesis Health Ventures), 585 Pa. 366, 888 A.2d 758 (2005). I agree with the Workers’ Compensation Judge (WCJ) and with the three-member panel opinion filed April 28, 2008 but vacated in conjunction with granting reargument en banc and with the amicus Pennsylvania Association for Justice (PAJ). They are correct that an employer’s effort to secure a change in a claimant’s status beyond the period provided for securing a self-executing change to partial disability based upon an Impairment Rating Evaluation (IRE) requires a showing of job availability. The meaning of “traditional administrative process” is crucial to deciding this case.
There is no dispute that Timothy Diehl (Claimant) suffered a mid-foot fracture and a calcaneus (heel bone) fracture on May 24, 1999, as reflected in a notice of compensation payable, for which he received total disability payments. Under Section 306(a.2)(1) of the Act, 77 P.S. § 511.2(1), when a claimant has received total disability compensation pursuant to Section 306(a), 77 P.S. § 511, for a period of 104 weeks, unless otherwise agreed to, the claimant shall be required to submit to a medical examination that shall be requested by the insurer within 60 days upon the expiration of the 104 weeks to determine the degree of impairment due to the work injury, if any. The degree of impairment shall be determined based on an evaluation by a doctor of specified qualifications using the most recent edition of the American Medical Association “Guides to the Evaluation of Permanent Impairment” (AMA Guides). Pursuant to Section 306(a.2)(2), 77 P.S. § 511.2(2), if the resulting impairment rating is 50 percent or more the claimant shall be presumed to be totally disabled and shall continue to receive total disability payments under Section 306(a). If the rating is less than 50 percent, then the claimant shall receive partial disability payments under Section 306(b), 77 P.S. § 512, provided that no reduction shall be made until 60 days’ notice of modification is given. These subsections provide for a self-executing, unilateral change of a claimant’s status from total disability to partial disability.
The Supreme Court held in Gardner that the time periods specified in Section 306(a.2)(1) and (2) are mandatory.1 It further held in Gardner that an employer who misses the mandatory 60-day window for making a request for an examination under Section 306(a.2)(1) is not barred from requesting an IRE and making use of the result. Section 306(a.2)(5), 77 P.S. § 511.2(5), provides that “[tjotal disability shall continue until it is adjudicated or agreed under clause (b) [ie., Section 306(b)] that total disability has ceased or the employe’s condition improves to an impairment rating that is less than fifty per centum of the degree of impairment defined under 'the most recent edition of the [AMA Guides].” Section 306(a.2)(6), 77 P.S. § 511.2(6), provides that “[u]pon request of the insurer, the employe shall submit to an independent medical examination in accordance with the provisions of section 314 [77 P.S. § 651] to determine the status of impairment[,]” provided that the claimant shall not be required to submit to more than two such examinations under Section 306(a.2) in a twelve-month period. In Gardner the Supreme Court *110stated that Section 306(a.2)(6) neither imposes a time restriction on an insurer’s ability to make the request nor provides for an automatic reduction of benefits based upon the impairment rating. The court explained:
Rather, a reduction of compensation to partial disability when the examination occurs under Subsection 6 is governed by Subsection 5, which requires an adjudication or agreement under 77 P.S. § 512 before benefits may be modified, where “total disability [has ceased] or the employe’s condition improves to an impairment rating that is less than fifty per centum.” 77 P.S. § 511.2(5).
The General Assembly thus has supplemented the traditional approach for securing a reduction in benefits to partial disability by incorporating the concept of an IRE, providing for a self-executing automatic modification of benefits where an insurer secures a disposi-tive impairment rating within a defined time period, under 77 P.S. § 511.2(1)-(2), and affording insurers the opportunity to establish an impairment rating in other time periods to reduce benefits via the traditional administrative process, under 77 P.S. § 511.2(5-6).
Id., 585 Pa. at 380, 888 A.2d at 766 (2005) (footnote omitted) (emphasis added).
The WCJ expressed very clearly his analysis on this point as follows:
The Employer has argued that the Gardner ... Decision only requires the Employer to file a Modification Petition, where [it is] beyond the 60 days, in order to obtain a Modification. However, Your Judge finds the Employer’s contention in this regard to be without merit. Once an employer has shown a change in the Claimant’s physical condition, it is [its] burden of proof to show the availability of employment with the physical limitations imposed upon the Claimant by this work-related injury. The Employer has not met [its] burden of proof in this regard, and it is not entitled to a Modification of benefits. Your Judge finds and concludes that the mere filing of a Modification Petition is insufficient, as a matter of law, to warrant a Modification of the Claimant’s benefits to partial disability. The Employer must either perform a work availability analysis pursuant to Kachinski v. [Workmen’s Compensation Appeal Board (Vepco Constr. Co.), 516 Pa. 240,] 532 A.2d 374 (Pa.1987), or a Labor Market Survey.
WCJ’s Decision, p. 4. The majority agrees that the “traditional administrative process” referred to in Gardner involves more than the mere filing of a modification petition. The majority also agrees with the position of the Workers’ Compensation Appeal Board (Board) and IA Construction and Liberty Mutual Insurance (Employer and Insurer) that the traditional administrative process means that the parties must litigate the merits of the IRE modification petition before the WCJ as they would any other petition, i.e., by proving that the impairment rating is less than 50 percent and that the claimant had reached maximum medical improvement at the time of the IRE, subject to presentation of countervailing . evidence by the claimant.
As the majority acknowledges, one recognized means of modifying a claimant’s status from total to partial disability under Section 306(b) may include establishing “earning power” under Section 306(b)(2), 77 P.S. § 512(2), which shall be determined by the work that the claimant is capable of performing and shall be based upon expert opinion evidence that includes job listings from appropriate sources and *111advertisements.2 Partial disability shall apply if the claimant “is able to perform his previous work or can, considering the employe’s residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employe lives within this Commonwealth.” Id. Another is through a Kachinski analysis, where the employer who seeks a modification must prove a change in condition and a referral to a then-open job or jobs within the claimant’s physical and skill abilities.
I disagree, however, with the unsupported notion that an employer who misses the mandatory time for requesting an examination to secure automatic modification from total to partial disability may nonetheless accomplish the same result simply by conducting an exam at some later time, filing a modification petition and “litigating” the matter before a WCJ, ie., by proving that the IRE result in fact was less than 50 percent and that the claimant had reached maximum medical improvement at the time of the test. As the Court’s former opinion noted, the Supreme Court in Gardner stated: “[A]n insurer may request an employee submit to an IRE beyond the sixty-day window; the consequences of such examination however, cannot operate to automatically reduce the claimant’s benefits.” Gardner, 585 Pa. at 382, 888 A.2d at 767. As PAJ submits, logic does not support the idea that the legislature would impose a strict time requirement on an automatic change in status and then allow an employer who had not complied to obtain essentially the same remedy at any time, even years later, merely by filing a petition and presenting the IRE results. The PAJ argues that the Supreme Court’s reference in Gardner to “traditional administrative process” places this question squarely within the provisions of Section 306(b).3
Employer and Insurer argue that the interpretation of the WCJ is not consistent with the Supreme Court’s decision in Gardner. They quote the second paragraph from the quotation from Gardner above, p. 110, and they then assert that the Supreme Court did not reference Section 306(b) in relation to the reduction of benefits by the traditional administrative process. As quoted above, however, the preceding paragraph expressly stated:
Rather, a reduction of compensation to partial disability when the examination occurs under Subsection 6 is governed by Subsection 5, which requires an adjudication or agreement under 77 P.S. § 512 before benefits may be modified, *112where “total disability [has ceased] or the employe’s condition improves to an impairment rating that is less than fifty per centum.” 77 P.S. § 511.2(5).
Gardner, 585 Pa. at 880, 888 A.2d at 766. Of course, 77 P.S. § 512 is Section 306(b) of the Act.4
The WCJ and the original panel opinion correctly determined that the legislature did not intend for the non-self-executing procedure for modifying from total disability to partial disability under Section 806(a.2)(5) and (6), referred to by the Supreme Court as the “traditional administrative process,” should be virtually as simple and automatic as those for the self-executing provisions under Section 306(a.2)(1) and (2).5 Rather, the Supreme Court’s discussion in Gardner indicates that it interprets these provisions to require that a traditional analysis, including a work availability analysis, accompany the “traditional administrative process.” Because of the majority’s misinterpretation of case and statutory law, I accordingly dissent.
. In Dowhower v. Workers’ Compensation Appeal Board (CAPCO Contracting), 591 Pa. 476, 919 A.2d 913 (2007), the Supreme Court reaffirmed that holding and ruled that a request for an IRE that an employer made before the expiration of 104 weeks was contrary to the mandatory requirement and that the IRE that resulted from it was therefore void, even though the medical examination occurred after the 104-week period' and the claimant did not object at the time.
. As Employer stresses, establishing earning power through such a labor market survey was an innovation added by the Act of June 24, 1996, P.L. 350, known as “Act 57,” which also added the IRE provisions at issue here. In that sense, a labor market survey is not "traditional,” although it was incorporated into Section 306(b), which does provide the traditional means by which to seek a modification.
. In a reply brief, Employer and Insurer reiterate that Section 306(a.2) is concerned with analyzing “impairment,” which is defined as "an anatomical or functional abnormality or loss that results from the compensable injury and is reasonably presumed to be permanent.” Section 306(a.2)(8)(i), 77 P.S. § 511.2(8)(i). Cases have distinguished between determination of "impairment” under Section 306(a.2) and determination of “disability,” which is defined as the loss of earning power that is attributable to a work-related injury. See Weismantle v. Workers' Compensation Appeal Board (Lucent Techs.), 926 A.2d 1236 (Pa.Cmwlth.), appeal denied, 594 Pa. 718, 937 A.2d 448 (2007). Although the cases do distinguish between "impairment” and "disability,” we should not lose sight of the fact that the purpose of creating an impairment rating is to assist in determining whether disability should be deemed 'to be total or partial.
. The Supreme Court’s use of the phrase "a reduction in compensation to partial disability” was not dictum but was central to its analysis. Section 306(a.2)(2), 77 P.S. § 511.2(2), recognizes that a change from total disability to partial disability is a “reduction” in compensation, even though the current rate does not change, by specifically providing that after such a change due to an IRE determination "no reduction shall be made until sixty days’ notice of modification is given."
. The majority in footnote 11 mischaracter-izes this dissent by stating that it suggests that the process under Section 306(a.2)(5) and (6) would be automatic. The dissent clearly states that the non-self-executing procedures should not be virtually as simple and automatic as those for the self-executing procedures.