Almost immediately after the Pennsylvania Supreme Court issued its game-changing workers' compensation ruling in Protz v. Workers' Compensation Appeal Board (Derry Area School District) last year, attorneys began gearing up to litigate the natural follow-up question: Should the decision be applied retroactively?

A much buzzed-about June 6 ruling by the Commonwealth Court en banc may have finally answered that question. “May have” is the operative phrase, however, because not everyone agrees on the potential significance of the decision. The confusion appears to boil down to competing definitions—or, perhaps more accurately, expectations—of “retroactive application.”

Here's what we know for sure: The Supreme Court's ruling in Protz a year ago partially reversed a Commonwealth Court decision by invalidating in its entirety Section 306(a.2) of the Workers' Compensation Act, which required doctors performing impairment rating evaluations of claimants to rely on “the most recent edition” of the American Medical Association Impairment Rating Guides. The justices found that portion of the statute unconstitutionally delegated the legislature's lawmaking authority to the AMA. Consequently, IREs performed pursuant to those guidelines were unconstitutional.

The decision was hailed as the most important development in Pennsylvania workers' compensation law in decades. Shortly after that decision came down, the Pennsylvania Bureau of Workers' Compensation issued a statement saying that, “effective immediately, [it] will no longer designate physicians to perform impairment rating evaluations.”

Still, there remained the question of what to do with claimants whose benefits were modified from full to partial based on now-invalidated IREs.

Fast forward to June 6 of this year, when, in Whitfield v. Workers' Compensation Appeal Board (Tenet Health System Hahnemann LLC), the Commonwealth Court ruled 6-1 that, in light of last year's Protz decision (referred to as “Protz II” because it was decided on its second trip up to the appellate courts), any claimant who had their benefits modified from full to partial based on an unconstitutional IRE now has the right to seek reinstatement to full benefits, provided they file their petition while they're either still within their 500-week partial disability period or within three years of the date of their last compensation payment, as was the case with claimant Paulette Whitfield.

“ However,” the court added, “in order to be entitled to reinstatement, a claimant must testify that her work-related injury continues, and the WCJ must credit that testimony over any evidence that an employer presents to the contrary.”

Here's where the controversy starts.

Both sides in the Whitfield case had argued the issue of retroactivity. Whitfield had argued that Protz II must apply to all claimants who are receiving partial disability benefits as a result of a change in status based upon a now-unconstitutional IRE. Whitfield's employer, Tenet Health System Hahnemann, contended that Whitfield waived her constitutional challenge because she didn't raise it in 2007 when the IRE resulted in her change in status. Tenet further argued that allowing retroactive application of Protz II would upset employers' reasonable expectations of finality.

The Commonwealth Court sided with Whitfield but went out of its way to make clear that it was not making Protz II retroactive—at least not in the purest legal sense of the word.

“Our decision today does not impose any new legal consequences based upon a past transaction,” Judge Renee Cohn Jubelirer wrote for the majority (Judge Anne Covey dissented but did not pen an opinion). ”Simply because Protz II is being applied to a case that arose from a work injury and a change in disability status that predates it does not mean it operates retroactively. It would be retroactive if it related back and gave a prior transaction a legal effect different from that which it had under the law in effect at the time. This decision does not alter claimant's past status. Rather, it gives effect to the claimant's status as it existed at the time she filed her reinstatement petition, which was filed within the statutory timeframe for filing such petitions.”

Several workers' compensation lawyers—some involved in Whitfield, some not—said they saw the Commonwealth Court's ruling as dodging the retroactivity issue while still teeing it up to be addressed down the line by either the state Supreme Court or the legislature.

Susan Nanes, a claimant-side attorney with Pond Lehocky Stern Giordano in Philadelphia, who is not involved in Whitfield, called the ruling “positive, but tentative.”

“It opens up a clear path for reinstatement of total disability status based on Protz for those whose 500 weeks of partial disability status is ongoing or has elapsed so long as they are within three years of their last benefit payment,” she said in an email. “The court took a basic statutory approach. Where it falls short and fails is in shying away from strong arguments for full retroactive application of Protz via automatic reinstatement of total disability status, which continues to be a substantive wrong against injured workers who underwent IREs and had their status changed to partial under an unconstitutional statutory scheme.”

“That said,” Nanes continued, “the decision acknowledges that the case was briefed and argued about retroactivity, so the issue is ripe, and if allocatur is sought on that basis to the Supreme Court, there seems no reason it cannot be decided on this case.”

Counsel for Tenet in the Whitfield case, Stephen Potako of Weber Gallagher Simpson Stapleton Fires & Newby in Philadelphia, had a similar take, saying the decision “sets [the retroactivity issue] up for further disposition, without upsetting the apple cart very much.”

What the decision did not do is ”rewrite history” by rendering every benefits modification pursuant to an IRE void ab initio, Potako said. Nor did the court call for automatic reinstatement of full benefits for claimants who file a timely petition, he added, noting that claimants must still meet a burden of proof—albeit a low one—in order to begin receiving full benefits again.

Marianne Henry Saylor, a claimant-side attorney at Willig, Williams & Davidson in Philadelphia, who was not involved in Whitfield, said she saw the court as “sidestepping the retroactivity issue” in favor of focusing on the law as it governs reinstatement petitions.

As Jubelirer notes in the court's opinion, Section 413(a) of the Workers' Compensation Act specifically allows for reinstatement petitions to be filed “'within three years after the date of the most recent payment of compensation.'”

The Protz II ruling is precisely what gives claimants like Whitfield the right to seek reinstatement, Jubelirer explained.

“The impediment that rendered her partially disabled under the WC Act, i.e., the impairment rating, is no longer a valid means of changing a claimant's status,” Jubelirer said. “There was no longer a legal basis for claimant's disability status to remain partial because the IRE upon which the change in status was predicated was found, as a matter of law, unconstitutional and invalid. This change in the law was a basis upon which claimant could seek reinstatement.”

The court, according to Saylor, is saying, “This is really a reinstatement situation and the rules of reinstatement apply.”

But at least one attorney saw the Whitfield ruling as being decisive on the retroactivity issue: Whitfield's attorney, Brian Steiner of Steiner, Segal, Muller and Donan in Dresher.

“Anybody that thinks this doesn't say the Supreme Court Protz case is retroactive to everybody, applies to everybody, who had their benefits changed under an IRE I think is wrong—dead wrong,” he said.

“The law of this case is very clear: my client has the right to file a petition to reinstate total disability benefits because of Protz,” he said.

The problem, he said, is that many of his fellow claimant-side attorneys were, and still are, hoping for automatic reinstatement under Protz II and the Whitfield ruling “is more of a compromise.”

“Lawyers out there think it should happen automatically,” he said. “No, you have to file a petition and ask a judge to do it.”

Saylor agreed that the court has opened the door to a significant portion of claimants who had their benefits modified by an IRE and is allowing them to challenge those modifications by testifying that they continue to suffer from a work injury.

However, she added, success is not guaranteed, as there's no reason to believe employers won't push back hard to try to refute such testimony.

Still, she called Whitfield “by far the most favorable opinion for claimants out of the Commonwealth Court in years.”

Meanwhile, those hoping Whitfield will finally be the case in which the Supreme Court tackles the issues of retroactivity and automatic reinstatement head-on may be in for a disappointment.

Potako said he and his client are still deciding whether to appeal.

“We have some consultation to do back and forth,” he said. “We're kind of expecting claimants to appeal and if that's the case we would certainly file a cross-appeal. But whether we initiate our own appeal, regardless of what claimant does, is another issue.”

But Steiner, while acknowledging that he “would have liked” if the Commonwealth Court had called for automatic reinstatement of full benefits in the wake of Protz II, said he still needed to weigh whether an appeal would be in the best interest of his client.

After all, he noted, he won.

“I know there are claimants' lawyers out there who want me to appeal,” he said, before adding, “Let's just say it's under advisement.”