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The Pennsylvania Supreme Court is set to determine the extent to which claimants who were still litigating their impairment rating evaluations when the justices issued their landmark workers' compensation decision in Protz v. Workers' Compensation Appeal Board (Derry Area School District) are entitled to the benefit of that ruling.

The Supreme Court's 2017 ruling in the Protz case (referred to as “Protz II” because it was decided on its second trip up to the appellate courts) partially reversed a Commonwealth Court decision by invalidating in its entirety Section 306(a.2) of the Workers' Compensation Act, which required doctors performing IREs 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.”

Last October in Dana Holding v. Workers' Compensation Appeal Board (Smuck), the Commonwealth Court en banc held that cases in which IREs were still being litigated at the time Protz II came down were entitled to the application of that decision and that application was retroactive to the date of the IRE, rather than the date of the Protz II ruling.

On May 14, the Supreme Court granted allocatur in Smuck to address two issues: “1. Whether the Commonwealth Court erred in applying the [Protz II] standard to the case on appeal at the time of this court's decision retroactive to the date of the IRE instead of as of the date of the Supreme Court [change] in the law? 2. Whether the Commonwealth Court's failure to grant the employer credit for the three year period between the date of the IRE evaluation and the date of this court's decision in [Protz II] unlawfully violates employer's constitutional right pursuant to the 'Due Course of Law' provisions of the Pennsylvania Constitution Article I, Section 11?”

In Smuck, a seven-judge panel of the Commonwealth Court unanimously upheld a decision by the Workers' Compensation Appeal Board to reverse a workers' compensation judge's ruling and reinstate claimant David Smuck to total disability status as of June 20, 2014, the date of his IRE.

The Commonwealth Court said Protz II applied to Smuck's case because both he and his employer were in the midst of appealing a workers' compensation judge's modification of his disability status at the time the Supreme Court rendered its decision.

While the employer argued that retroactively applying Protz II was akin to changing the rules of play in the middle of the game, the court called that argument “unpersuasive” because Smuck's disability status “was far from final” at the time Protz II came out.

“Because employer's modification petition was still being actively challenged at the time Protz II was decided, we are hard pressed to find employer had any reasonable expectation in the finality of the modification of claimant's disability status,” Judge Renee Cohn Jubelirer wrote for the court, noting that, in Whitfield, “An en banc panel of this court recently rejected a similar argument that the employer had an expectation of finality in a case with much stronger facts favoring finality than those present here.”

Jubelirer was joined by President Judge Mary Hannah Leavitt and Judges Robert Simpson, Patricia McCullough, Michael Wojcik, Christine Fizzano Cannon and Ellen Ceisler.

The panel also rejected the employer's argument that the Protz II decision should only apply from the date it was handed down by the Supreme Court and not the date of the IRE.

“Employer argues that it had a vested right and should, at a minimum, receive a credit for three years of temporary disability from the date of the IRE on June 20, 2014, to the decision in Protz II on June 20, 2017,” Jubelirer explained. ”These weeks, according to employer, should be counted towards claimant's limit of 500 weeks of partial disability compensation. Section 306(b)(1) of the WC Act, 77 P.S. Section 512(1). Should employer seek to use some other statutory mechanism to change claimant's status to partial, employer argues it should be entitled to a credit for those weeks between the IRE and Protz II. However, this approach does not take into consideration that the IRE determination was never final. In fact, at oral argument, employer recognized that if the IRE had been overturned on the merits, it would not have been entitled to any credit for the period of partial disability.”

Dana Holding Corp. had argued that retroactive application of Protz II violated its right to due course of law because it relied on the IRE process in Smuck's case before the Supreme Court invalidated it. Jubelirer also rejected that argument, finding that the employer did not have a vested right in the continued validity of the IRE results in Smuck's case because those results were still being litigated.

“At best, it had 'a mere expectation[] based upon an anticipated continuance of existing law,'” Jubelirer said. “In short, employer had no reasonable expectation that the IRE would be upheld as claimant's disability status was still being litigated.”

Furthermore, Jubelirer said, Dana Holding ”had other avenues available to it to modify claimant's status but chose to utilize the IRE route because it was less expensive and more efficient.”

“Accordingly, it took a risk to pursue an IRE instead of some other mechanism,” Jubelirer said. ”To the extent it is now foreclosed from pursuing other options, the fault does not lay with claimant. It bears emphasis that the WC Act 'is remedial in nature and intended to benefit the [injured] worker.'”

Counsel for the employer, Carol Crisci of The Chartwell Law Offices in Eagleville, declined to comment on the allocatur grant.

Counsel for Smuck, Karl Januzzi of Shollenberger Januzzi & Wolfe in Enola, could not be reached for comment.