IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hitachi Metals Automotive :

Components (USA) and :

Broadspire/Sompo, :

Petitioners :

:

v. : No. 176 C.D. 2016

: SUBMITTED: August 5, 2016

Workers’ Compensation Appeal :

Board (Bieber), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge 

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE HEARTHWAY FILED: October 31, 2016

Hitachi Metals Automotive Components and its insurance carrier, 

Broadspire/Sompo (together, Employer), petition for review of that part of the 

January 8, 2016, order of the Workers’ Compensation Appeal Board (Board) 

affirming the decision of a workers’ compensation judge (WCJ) to grant Eric 

Bieber’s (Claimant) Impairment Rating Evaluation (IRE) review petition. The 

only issue raised by Employer on appeal is whether Claimant’s petition 

challenging the IRE was filed timely. We affirm.
2

On March 10, 2010, Claimant sustained a work-related injury. On 

February 25, 2011, the parties filed an agreement for compensation with the 

Bureau of Workers’ Compensation (Bureau), which listed Claimant’s injury as 

“abdomen-inguinodynia with surgery- pulling a fixture.” (WCJ’s Findings of Fact, 

No. 7.) The agreement further provided that Claimant was disabled by the work

injury on April 8, 2010, after his surgery. Claimant began receiving workers’ 

compensation benefits on April 27, 2010. 

This case is about an IRE request made by Employer on May 2, 2012, 

prior to Claimant receiving 104 weeks of total disability benefits under section 

306(a.2)(1) of the Workers’ Compensation Act (Act).1 Claimant would have 

received 104 weeks of benefits by May 2, 2012, but for Claimant returning to work 

for a period of two weeks and four days in May and June 2010, and not receiving 

benefits during that time. Thus, Claimant did not receive 104 weeks of benefits

until May 12, 2012. (Board’s Op. at 10.)

After Employer’s untimely request, the IRE was performed on August 

21, 2012. On September 20, 2012, Claimant filed a review petition challenging the

IRE (first petition). On February 4, 2013, Employer filed a Notice of Change in 

Workers’ Compensation Disability Status (Form LIBC-764) with the Bureau, 

notifying Claimant that his disability status will be changing from total to partial 

 

1 Act of June 2, 1915, P.L. 736, added by Section 4 of the Act of June 24, 1996, P.L. 350, 

77 P.S. § 511.2(1). Section 306(a.2)(1) of the Act provides an employer the opportunity to 

request an IRE within 60 days after a claimant receives 104 weeks of total disability benefits to 

determine the degree of impairment due to the injury. 77 P.S. § 511.2(1). 
3

disability effective August 21, 2012, the date of the IRE. On February 8, 2013, 

Claimant filed a second review petition, challenging the IRE (second petition). 

At a hearing on March 7, 2013, Claimant’s attorney questioned the 

timeliness of Employer’s IRE request under section 306(a.2)(1) of the Act. 77 P.S. 

§ 511.2(1). The parties also discussed the “duplicative” nature of the first and 

second petitions. Subsequently, Claimant filed a motion to withdraw the second 

petition, which the WCJ granted on April 11, 2013, without prejudice. 

In its May 15, 2014 decision, the WCJ determined that Employer’s 

request for designation of an IRE physician was untimely because it occurred 

before Claimant received 104 weeks of total disability benefits. The WCJ granted 

Claimant’s first petition and set aside the IRE as void, reinstating Claimant’s 

benefits. Employer appealed to the Board, which affirmed. Employer now 

petitions this Court for review.2

Employer only contends that the WCJ erred in considering Claimant’s 

first petition, stating that it was premature because it was filed before Employer 

notified Claimant of a change in disability status on February 4, 2013. Employer 

asserts that because Claimant’s first petition was premature and Claimant withdrew 

the second petition, there was no timely petition pending before the WCJ on which 

to grant relief. We disagree.

 

2 Our review is limited to determining whether constitutional rights were violated, 

whether the adjudication is in accordance with the law, and whether the necessary findings of 

fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. 

C.S. § 704.
4

Employer bases its argument on 34 Pa. Code § 123.105(d)(5), which 

states that a claimant may immediately appeal an adjustment of disability status 

based on an IRE after the employer provides claimant with a Form LIBC-764, 

giving notice of a change in disability status. Employer argues that Claimant’s 

first petition was filed well before Employer notified Claimant by Form LIBC-764

and, therefore, Claimant’s first petition was premature.

However, Employer misconstrues the nature of Claimant’s first 

petition. Claimant was not seeking a review of a change in his disability status. 

Claimant was challenging the validity of the IRE itself. The regulation set forth at 

34 Pa. Code § 123.105(d)(5) controls when a claimant may challenge a change in 

disability status announced by the filing of a Form LIBC-764, but it does not 

control when a claimant may challenge the validity of an IRE.

An IRE is considered void if it is not timely. Dowhower v. Workers’ 

Compensation Appeal Board (Capco Contracting), 919 A.2d 913, 917 (Pa. 2007). 

In Dowhower, the Supreme Court determined that an IRE request made before the 

claimant received 104 weeks of total disability benefits was premature. The 

Supreme Court further determined that “because the IRE request did not comply 

with the requirements of [77 P.S. §] 511.2(1), the IRE itself is void.” Id. at 918. 

“[S]ection 511.2(1) imposes a mandatory obligation on the [employer] to request 

an IRE within the time limits specified.” Id. If employer does not timely comply, 

its request for an IRE is illegal and void. Id. 

There is no prohibition of a claimant challenging an IRE’s validity

before a claimant is notified of a change in disability status by Form LIBC-764. 

This Court has encountered such petitions before. See Barrett v. Workers’ 
5

Compensation Appeal Board (Sunoco, Inc.), 987 A.2d 1280, 1288 (Pa. Cmwlth. 

2010). In Barrett, “[c]laimant filed a review petition challenging the validity of the 

IRE. Then, after receiving the [n]otice [of the change in disability status], 

[c]laimant filed a second review petition challenging the change of his disability 

status.” Id. at 1284. 

The Board did not err in ruling on Claimant’s first petition 

challenging the IRE.

3

 Accordingly, we affirm. 

_________________________________

JULIA K. HEARTHWAY, Judge

 

3 We note that Employer is not precluded from challenging Claimant’s disability status. 

However, Employer must obtain this relief through the traditional administrative process. See

Stanish v. Workers’ Compensation Appeal Board (James J. Anderson Construction Co.), 11 

A.3d 569, 577 (Pa. Cmwlth. 2010).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Hitachi Metals Automotive :

Components (USA) and :

Broadspire/Sompo, :

Petitioners :

:

v. : No. 176 C.D. 2016

:

Workers’ Compensation Appeal :

Board (Bieber), :

Respondent :

O R D E R

AND NOW, this 31st day of October, 2016, we hereby affirm the 

order of Workers’ Compensation Appeal Board.

_________________________________

JULIA K. HEARTHWAY, Judge