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As we know, the Pennsylvania Supreme Court issued its decision in the matter of Protz v WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) on June 20, 2017, finding Section 306(a.2) of the PA Workers’ Compensation Act concerning the Impairment Rating Evaluation (IRE) process to be unconstitutional.  Of key note, the Honorable Court was silent as to whether its decision would apply retroactively, i.e. to cases in which a claimant’s benefits were modified based on an IRE in the past.  The PA Supreme Court is also silent as to whether a claimant can waive his/her constitutionality argument by failing to timely object to the IRE and/or modification.    


While we wait for further guidance by the courts, we have continued to argue against claimants’ reinstatement petitions asserting the claimant failed to timely raise his/her challenge to the IRE determination.  This argument is based on the underlying principle by the PA Supreme Court in Blackwell v. Commonwealth of Pennsylvania, State Ethics Commission, 589 A.2d 1094 (Pa. 1991), holding that an appellate court’s decision to overrule a prior law applies retroactively only in cases where the issue in question has been properly preserved at all stages of adjudication and remained pending at the time of the court’s decision.


In most recent news, on January 18, 2018, the PA Supreme Court issued an order remanding the Commonwealth Court’s decision in William Gillespie v. WCAB (Aker Philadelphia Shipyard) No. 1633 C.D. 2016 (Pa. Cmwlth. Ct., May 17, 2017) back to the Commonwealth Court requesting that the court determine whether the Supreme Court’s decision in Protz applies retroactively:


In Gillespie, the claimant underwent an IRE and a “Notice of Change of Workers’ Compensation Disability Status” was sent to Claimant modifying her benefits to partial temporary disability.  Claimant did not challenge the notice. Id. at 2.  The claimant then filed a reinstatement petition eight years later requesting to set aside the IRE. Id.  The Board found that the WCJ erred in granting claimant’s reinstatement petition, finding the claimant failed to file an appeal within 60 days of the notice of change in his disability status, and he did not obtain a new impairment rating of fifty percent (50%) or higher. Id. at 4.  The Commonwealth Court cited its decision in Riley v. WCAB (Commonwealth of Pa.), 154 A.3d 401 (Pa. Cmwlth. 2016) as controlling precedent, stating that “Protz does not give [a claimant] a second chance to appeal [the] IRE.” Id. at 7.  The court went on to find that “it does not matter what grounds are invoked to challenge an IRE, if it is not raised within 60 days, it is too late.” Id. at 8.  The court even went a step further by referencing its prior decisions stating that “a declaration that a provision of a statute is unconstitutional does not void every decision ever made in accordance therewith; only parties still engaged in active litigation may take advantage of this change.Id. at 8, footnote 4. 


Given this order, it appears the PA Supreme Court is going to require the lower courts to determine the applicability of its decision in Protz.  Unfortunately, Claimant Gillespie has since passed away, and thus it is likely the Commonwealth Court will dismiss the issue since there is no longer a “controversy” in this particular case. 


Even if the Commonwealth Court ultimately does not address the retroactivity application of Protz through the Gillespie case, there are other notable similar matters that have been recently decided by the Workers’ Compensation Appeal Board and have been appealed to the Commonwealth Court.  The most notable case involves the WCAB’s Opinion issued on December 19, 2017 in the matter of Robert Thomas v. City of Philadelphia, A16-1176. 


In this matter, the WCAB found that the PA Supreme Court’s holding in Protz has a different impact on each matter depending on the procedural posture. Id. at 3.  In a case where the claimant timely contested the change of status of his/her benefits either (1) within 60 days of receipt of the “Notice of Change of Workers’ Compensation Disability Status” or (2) opposed a Modification Petition raising and preserving the argument that the IRE provisions are unconstitutional, should have his/her benefits changed back to total disability benefits retroactive to the original date of the status change.  However, if the claimant did not timely challenge the constitutionality of the modification, but filed a reinstatement petition within 500 weeks of receipt of partial disability benefits, he/she is entitled to a reinstatement of benefits as of the date of the Protz decision, June 20, 2017.


Essentially, the WCAB’s Decision in Thomas is reinstating claimants’ total disability benefits as of June 20, 2017 as long as the constitutional challenge is filed before the expiration of 500 weeks.  Both Thomas and the City of Philadelphia filed respective appeals to the Commonwealth Court and a briefing schedule was just issued on March 6, 2018. 


We patiently await further developments from the Commonwealth Court to provide clarification as to the applicability of the Supreme Court’s holding of Protz and its continued detrimental effect on employers’ opportunities to bring an accepted workers’ compensation claim to a close. 

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