Post-Protz Decision from Commonwealth Court of PA – The Good and the Bad
Since the Supreme Court of Pennsylvania set the PA workers’ compensation system abuzz in the Protz case by striking the entire Impairment Rating Evaluation (IRE) section from the Pennsylvania Workers’ Compensation Act (Act), we have waited to see some appellate decision interpreting Protz. The Commonwealth Court of PA has now weighed in on the issue.
In Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System Hahnemann LLC), the Court reversed the decision of the Workers’ Compensation Judge (WCJ) and the Workers’ Compensation Appeal Board (WCAB), and found that the injured worker was potentially able to reinstate her total disability benefits after an IRE. The Court remanded for the injured worker to prove she remains totally disabled.
As attorneys for injured workers in PA, we were thrilled with the primary decision rendered by the Court – that being an injured worker whose 500 week maximum of partial disability benefits (which was obtained by IRE) has ended can still seek reinstatement to total disability benefits. In so finding, the Court rejected arguments by the workers’ compensation insurance carrier that the injured worker could not pursue reinstatement because she had failed to challenge the status of the IRE provisions of the Act initially.
The subsequent aspect – that the injured worker must now establish that she remains totally disabled – is less appealing. Logically, if the status of the benefits was changed from total to partial based on an IRE, and the PA Supreme Court has told us in Protz that the entire IRE section of the Act was unconstitutional, then the change back to total should seem to be automatic. Interestingly, the Court observed (in words, if not spirit) that, “The approach set forth herein is consistent with the overall remedial purpose and humanitarian objective of the WC Act, which is intended to benefit the injured worker.”
As the Commonwealth Court had previously noted in Thompson v. Workers’ Compensation Appeal Board (Exelon Corporation):
“Thus, we are compelled to reverse the Board’s affirmance of the WCJ’s modification of Claimant’s benefits, because under the Supreme Court’s recent decision in Protz II, Section 306(a.2) is stricken and no other provision of the Act allows for modification of benefits based on an IRE.”
Does that language not suggest that, absent another reason why benefits would remain modified to partial, the status should revert to total? In other words, the burden would be on the workers’ compensation insurance carrier to demonstrate another part of the Act which would allow for benefits to remain in partial status. However, this decision seems to reverse that burden entirely, and without reason, to place it squarely on the shoulders of the injured worker. To our eyes, this simply allows the insurance carrier to continue enjoying the fruits of a law which has already been declared unconstitutional.