Christian Petrucci,

Two cases decided by the Commonwealth Court in the last few months have solidified an injured worker's right to seek a reinstatement of benefits under the Supreme Court's decision in Protz v. Workers' Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017), at least until the Legislature acts. While the manner in which the court arrived at the favorable result is a bit curious, the effect is the same.

In Timcho v. Workers' Compensation Appeal Board (Philadelphia) __ A.3d___(Pa. Commw., No. 158 C.D. 2017, filed Aug. 17), the court was presented with the issue of whether a claimant can raise the constitutionality of an Impairment Rating Evaluation (IRE), as was done in Protz, for the first time in a collateral reinstatement petition after a prior petition challenging the IRE on other grounds has been fully litigated. The case represented the second time Edward J. Timcho had attempted to reinstate his benefits to temporary total following an unfavorable IRE. The first time around, the claimant argued only that the IRE doctor had not complied with the mandates of the Sixth Edition of the AMA Guides as it pertains to diagnostic testing. He did not challenge the constitutionality of Section 306(a.2) of the act in response to the employer's petition to modify his benefits from temporary total to partial disability based on the IRE. The case made it all the way to the Commonwealth Court, where the claimant's arguments were rejected and the partial disability status remained in place.

Days before the first Timcho case was decided by the Commonwealth Court the claimant filed a second challenge to the IRE via a reinstatement petition pursuant to the then-recently decided Commonwealth Court version of Protz. The workers' compensation judge (WCJ) took the unusual step of granting the employer's motion to dismiss the claimant's reinstatement petition without any evidence having been presented, noting that the claimant had failed to preserve the constitutional issue in his petition for review to the Commonwealth Court in his defense to the modification petition. The board affirmed. On this second appeal to the Commonwealth Court, stemming from the new petition, the claimant argued that a reinstatement petition is a proper vehicle for availing himself of the court's ruling in Protz. The claimant also posited that Protz should apply retroactively, resulting in a reinstatement of TTD benefits. The employer argued, as it had successfully before the WCJ and the board, that the claimant waived the Constitutional challenge and that the doctrine of administrative finality precluded the collateral attack. Administrative finality essentially provides that a party must exhaust its administrative remedies where administrative appellate rights exist and precludes a collateral attack of an administrative action if such rights are still available. The claimant's position was that the doctrine of administrative finality is inapplicable and that a reinstatement petition allows a case to be reopened on any grounds.

In deciding Timcho, the court turned to a case it decided in June, Whitfield v. Workers' Compensation Appeal Board (Tenet Health System Hahnemann), __ A.3d ___ (Pa. Commw., No. 608 C.D. 2017, filed June 6), which presented a similar fact pattern. The claimant in Whitfield lost an appeal attempting to invalidate an unfavorable IRE on grounds unrelated to the Constitutional issue and allowed the remainder of the 500-weeks to run without further challenge. Following the Protz decision, and well after the expiration of the 500-week period, the claimant filed a reinstatement petition. Unlike in Timcho, the claimant in Whitfield testified that she was still disabled. Without considering the claimant's testimony at all, the WCJ denied the reinstatement petition, indicting that the claimant had waived her constitutional claim since it was not raised during the challenge to the IRE, years earlier. The board affirmed.

On appeal, the Commonwealth Court focused on the notion that because the claimant had filed her reinstatement petition within three years of the date of her most recent payment of compensation (the expiration of the 500-week TPD period) as permitted by Section 413(a) of the act, the challenge was appropriate. Instead of focusing on the void ab initio status of the IRE provisions of the act following Protz, the court seemed to treat the matter as a simple reinstatement petition, nothing that the act “has always permitted a claimant to seek modification of the disability status by a reinstatement petition, as long as the “petition is filed within three years of the date of the most recent payment of compensation.” The court even went so far as to mention in a footnote that a reinstatement petition has traditionally applied to the change in a claimant's earning power or medical condition as opposed to a change in the law as the claimant was arguing, but left the analysis there. One would think that if a statute is void ab initio, and the reason for the original modification no long exists, the claimant would be restored to total disability without the need to prove a change in condition or earning power. However, the court did not see it that way.

Since in both cases a full record on the merits of a reinstatement petition was not created and adjudicated, the court remanded each for the WCJ to consider the merits of a reinstatement under the traditional analysis. Why a claimant should have such a burden remains an open question, but it seems clear that the burden is not too onerous, since in theory, one could meet that burden simply by presenting the testimony of the injured worker, as was done in Whitfield.

While the Pennsylvania Legislature is currently attempting to pass a “fix” to the perceived problems created for the insurance industry by Protz, in the meantime there is a clear window of opportunity for any claimants that were adversely affected by an IRE so long as they remain within three years of expiration of the 500-week partial disability period. Granted, the Commonwealth Court imposed an odd burden of proof on the claimant to show that disability continues, but the burden is light.

Christian Petrucci, of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers' compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.