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PA WORKERS’ COMPENSATION NEWSLETTER July 2018 Seventh Edition The IRE Cases Are Heating Up! 1. The Courts have been quite active post Protz I and II. As of April 2018, there were 270 pending IRE Petitions before the Workers’ Compensation Judges, 146 pending cases before the Workers’ Compensation Appeal Board and 12 pending cases before the Commonwealth Court. Generally, Claimants have been arguing unconstitutionality per se while the Defendants have been arguing waiver. The waiver argument received a boost in September 2015 when the Commonwealth Court decided Wincilla v. WCAB (Nexstar Broadcasting), 126 A.3d 364 (Pa. Cmwlth. 2015). In that case, the Court held that, by failing to assert the claim or argument in his Petition for Review, Claimant waived for purposes of said appeal the issue that §306(a.2) of the Workers’ Compensation Statute, providing that Claimant’s impairment rating be determined under the most recent addition of the AMA Guidelines to Evaluation of Permanent Impairment, was an unconstitutional allocation of legislative authority in violation of Article II of the Pennsylvania Constitution. The Court held that questions involving the validity of a statute may be raised for the first time before Commonwealth Court, but such issues are required to be specifically asserted in the Petition for Review or are deemed waived. 2 Pa. C.S.A. §703; Rules app. proc., Rule 1513(d), 42 Pa. C.S.A. While this case should be of concern to Claimants, it looks like sloppy pleading on appeal by the Claimant resulted in this dismissal. 2. In Reilly v. WCAB (Comm.), 154 A.3d 396 (Pa. Cmwlth. 2016), another post Protz I IRE case, the Claimant waited almost ten (10) years to contest the IRE. The Workers’ Compensation Judge and Board denied Claimant’s Petition on the basis of Johnson v. WCAB (Seely Components Group), 982 A.2d 1253 (Pa. Cmwlth. 2009) which held that Claimant could no longer challenge the 2003 IRE Determination because she had failed to do so within the necessary sixty (60) day period set forth in Section 306(a.2) of the Act and did not present evidence of a new impairment rating of more than fifty percent (50%). Commonwealth Court affirmed this holding on the basis of Johnson and basically found that Protz I did not apply. Accordingly, at least for now, it appears that the waiver argument by Defendants is still alive. However, Reilly and Wincilla were both decided before Protz II. 3. In the first Decision post Protz II, the Commonwealth Court decided Thompson v. WCAB (Exelon Corp.), 168 A.3d 408 (Pa. Cmwlth. 2017). At this point the IRE statute had been declared totally unconstitutional by the Pennsylvania Supreme Court in Protz II so the Court essentially expanded its reasoning regarding the ability of Claimants to open up these old IRE cases. While the Court notably did not engage in an extensive discussion of retroactivity, it did reject the Employer’s waiver argument based on Claimant’s failure to raise the constitutionality issue while the case was initially being litigated. The Court stated “because this matter began before Protz I and Protz II were decided and this appeal implicates the validity of Section 306(a.2)(1) of the Act, Claimant raised this issue at the first opportunity to do so.” While this case does not hold for total retroactivity regarding the upending of old IRE Determinations, the Court does appear to be moving in that direction. 4. As referred to in our April 2018 Newsletter, the Commonwealth Court recently decided Whitfield v. WCAB (Tenant Health), _____ A.3d _____ (2018) which allowed the reinstatement of IRE terminated benefits within three (3) years of the last payment of compensation under Latta (1994) and its progeny. After an IRE Determination of less than fifty percent (50%) impairment in 2006, Claimant was paid 500 weeks of partial disability benefits at the total rate and these benefits ceased in 2015. However, within three (3) years of her last payment of compensation, Claimant sought reinstatement under Protz I. The Workers’ Compensation Judge and Board dismissed Claimant’s Petition but the Commonwealth Court reversed and remanded. The Court held that under Protz II, Claimant’s reinstatement request was valid and no waiver had occurred. However, remand was required for the assessment of proof of disability. If she was still disabled, this would constitute grounds for the reinstatement of her total disability benefits. Id. Latta. Regarding the issue of retroactivity the Court held “our Decision … does not impose any new legal consequences based upon a past transaction. 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 [3 years] for filing such petitions.” As you can see, the Commonwealth Court appears to be going out of its way to avoid approving total retroactivity post Protz II. By remanding the case, the Court also avoided or delayed the appeal of this issue to the Supreme Court of Pennsylvania who I believe will be more sympathetic to Claimants who are seeking total retroactivity in overturning IRE Determinations since the Supreme Court of Pennsylvania found the statute to be void ab initio. This author predicts that once the Pennsylvania Supreme Court gets the right case, it will issue such a holding further disrupting this area of the law. We shall keep you advised. HAVE A GREAT SUMMER! TONY PLASTINO

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