DISSENTING OPINION BY
Judge PELLEGRINI.I respectfully dissent from the majority’s decision because it is contrary to our recent decision in Gardner v. Workers’ Compensation Appeal Board (Genesis Health Ventures), 814 A.2d 884 (Pa. Cmwlth.2003), that the time provisions contained in Section 306(a.2)(l) of the Workers’ ■ Compensation Act (Act)1 are mandatory and not discretionary. Because ITT Hartford (Insurer) failed to timely file its request for an impairment rating exam (IRE), the results of that exam should not have been used to reduce Paul Dowhower’s (Claimant) total disability benefits to partial disability benefits.
In this case, Claimant was injured at work and, pursuant to a Workers’ Com*33pensation Judge’s (WCJ) order dated May-29, 1998, began receiving total disability benefits commencing on April 18, 1997. Because he returned to work for a period of time, he received partial disability benefits, but he left work again due to his disability and once again began receiving total disability benefits. On May 20, 1999, Insurer for Claimant’s Employer, Capeo Contracting, Inc., requested that an IRE be performed on Claimant in accordance with Section 306(a.2)(l) of the Act. The IRE was conducted on September 1, 1999, and because an impairment rating of 10% was found by the physician, pursuant to Section 306(a.2)(2) of the Act,2 Insurer filed a notice with the Board requesting that Claimant’s total disability benefits be reduced to partial benefits. Claimant filed a petition to review his benefits, arguing that the timing of Insurer’s request for an IRE violated the Act.
By order dated April 6, 2000, the WCJ found that based on evidence that Claimant submitted regarding his receipt of total disability benefits which showed that he had periods of partial disability interspersed with his receipt of total disability benefits, the 104 weeks of benefits actually expired on July 23, 1999, rather than on April 14, 1999, as alleged in Employer’s petition, and concluded that Section 306(a.2)(l) of the Act did not allow an insurer to request an IRE until after the expiration of the 104 weeks of benefits. Because the WCJ denied Insurer’s request as untimely, Insurer appealed to the Board which reversed, finding that the issue was waived because an exam had already taken place.
On appeal, Claimant argues not only that the issue is not waived, but that Section 306(a.2)(l) of the Act mandates that an insurer file the IRE petition after a claimant has received total disability benefits for 104 weeks, and because Insurer filed its petition prior to him receiving 104 weeks of total disability benefits, the IRE should have been disregarded. The majority, however, disagrees with Claimant, finding that the language in Section 306(a.2)(l) of the Act is not mandatory that an insurer file its petition within 60 days after the 104 weeks of benefits has been received, but, inexplicably, allows an insurer to request an IRE “no later than day 61 after expiration of the 104 weeks.” (Slip opinion at 6.) I dissent because this Court in Gardner most recently held that the word “shall” in Section 306(a.2)(l) of the Act makes it mandatory for an employer to request an IRE within 60 days from the expiration of the 104 weeks of total disability benefits received by the claimant, not 61 days.
While we were not faced in Gardner with a situation where an insurer filed its request for an IRE prior to the expiration of benefits, we, nonetheless, determined that the language in Section 306(a.2)(l) was clear and unambiguous. The General Assembly, by clear and unambiguous language, only provided that a medical exam *34could only be requested during a 60-day window. Not only did we hold that language was clear and unambiguous, but to interpret the language as the majority does would make the statute read “the employee shall be requested by insurer at any time upon the expiration of one hundred and eleven and weeks.” Because the statute does not provide any exception for a mistake in the date the claimant began receiving benefits, I dissent from the majority’s decision and would reverse the Board.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.2(1). That section provides:
When an employe has received total disability compensation pursuant to clause (a) for a period of one hundred four weeks, unless otherwise agreed to, the employe shall be required to submit to a medical examination which shall be requested by the insurer within sixty days upon the expiration of the one hundred four weeks to determine the degree of impairment due to the compensa-ble injury, if any.
. 77 P.S. § 511.2(2). That section provides in relevant part:
(2) If such determination results in an impairment rating that meets a threshold impairment rating that is equal to or greater than fifty per centum impairment under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment,” the employe shall be presumed to be totally disabled and shall continue to receive total disability compensation benefits under clause (a). If such determination results in an impairment rating less than fifty per centum impairment under the most recent edition of the American Medical Association "Guides to the Evaluation of Permanent Impairment,” the employe shall then receive partial disability benefits under clause (b): Provided, however, That no reduction shall be made until sixty days' notice of modification is given.