Claimant Reinstatement of Total Disability Post-Protz decision

Injured Employee Remedy for Reinstatement of Total Disability Status after the Pennsylvania Supreme Court decision in Protz

Synopsis

An injured employee may file a Petition for Reinstatement of total disability benefits after receiving 500-weeks of wage loss benefits for partial disability status pursuant to an Impairment Rating Evaluation (IRE).  The petition is timely if it is filed within three (3) years after the last payment of partial disability benefits.  The injured employee must prove that he/she is totally disabled.  Medical evidence is not required to meet this burden of proof.  Injured employee testimony alone may support a finding of total disability status. However that testimony must be found to be credible by the workers’ compensation judge. 

The reinstatement of total disability status is effective as of the date of the filing of the reinstatement petition. Note, the Commonwealth Court specifically stated this decision does not resolve the question of whether the Supreme Court decision in Protz would apply in the same manner to cases where the last payment of partial disability benefits was made more than three years before the filing of a reinstatement petition. 

See: Whitfield v. WCAB (Tenet Health System Hahnemann LLC) 608 C.D. 2017 filed June 6, 2018.

Whitfield Decision Review & Rationale

The Commonwealth Court decision reviewed the historical background of the litigation of the constitutionality of the impairment rating evaluation provisions.  The court reviewed its 2015 decision (Protz I), which found the impairment rating evaluation provisions were unconstitutional, as they were an improper delegation of legislative authority.  However, the Commonwealth Court preserved the IRE remedy and required utilization of the Fourth Edition of the AMA Guides, as that was the AMA edition in effect when the legislature enacted the Section 306(a.2) remedy.

The 2017 Supreme Court Decision, (Protz II) held the IRE procedure was unconstitutional, in its entirety, as a delegation of legislative authority and the offending language - reference to use of  "the most recent edition" of the AMA Guides - could not be severed, so as to preserve a remedy using the 4th Edition of the AMA Guides. 

The PA Supreme Court decision was silent as to the retroactivity of it's decision. 

Did this ruling apply only to cases which were pending on appeal? 

Did it apply to all IRE cases since 1996?

Post-Protz l - Commonwealth Court IRE decisions 

The Commonwealth Court reviewed decisions of the court issued post-Protz l and before the PA Supreme Court decision (Protz II). The value of this review is to identify prior case holdings and legal arguments which no longer apply in the assessment of IRE issues.

For example, in Winchilla the Commonwealth Court decided a worker could not proceed with an appeal to the challenge to the constitutionality of his IRE as the worker did not raise the delegation of legislative authority argument. 

In Riley the Commonwealth Court held the worker had a period of 60 days to appeal an IRE determination. Riley filed an IRE challenge in her appeal of a Review NCP petition, more than 10 years after the IRE determination. She waived her right to challenge the constitutionality of that IRE. (see also Gillespie l).

In Beasley, a worker could proceed with an IRE challenge, where the appeal of the change of the workers status was pending when Protz l was decided. When the worker raised this issue for the first time on WCAB appeal, this was held to be the first opportunity for worker to raise this issue.

In  Mazuruk the worker was in the process of appealing his 2012 IRE when Protz l was decided. That challenge was timely.

Whitfield - Factual Background

In Whitfield the worker was injured in 2002 and underwent an IRE in 2006.  The WCJ issued a decision to modify the worker’s disability status from total to partial as of the date of the IRE.  The Appeal Board affirmed that order.  The parties stipulated the issue of the constitutionality of the IRE procedure was not raised before the WCJ or WCAB by Whitfield.  There were no further appeals. 

Whitfield received her last partial disability benefit in July of 2015.  In November of 2015, just after the Commonwealth Court Decision in Protz I, Whitfield filed a Petition for Reinstatement to total disability status.  

WCJ denied the Reinstatement Petition reasoning: (i) the Protz I Decision did not expressly void all prior IREs or state that its decision applied retroactively; (ii) only pending matters were entitled to a benefit in the change of the law; (iii) constitutionality of the IRE process was not raised or preserved in the underlying litigation.  The WCAB affirmed the Reinstatement Petition denial, primarily based upon the argument that the injured worker did not raise a challenge to the constitutionality of the IRE.  The 2009 WCAB Order was not appealed to preserve those issues. 

In the Whitfield analysis, the Commonwealth Court did not rely upon its prior decisions - whether the claimant preserved the constitutionality issues or whether the claimant appealed the IRE Determination within 60-days (Riley).  The Court explained that their decisions predate Protz II, so they were decided before Section 306(a.2) was struck down in its entirety as unconstitutional.  “Thus, reliance on the time requirements set forth in Section 306(a.2) establishing when an IRE must be challenged has been undermined”. (slip op. p.18).

Thompson was one of the first cases decided by the Commonwealth Court after the Supreme Court decision in Protz II.  Thompson was in the midst of litigating the merits of her 2005 IRE change in status when Protz I was decided.  Although Thompson had not challenged the constitutionality of the IRE before the WCJ or WCAB, she did so in her Petition for Review to the Commonwealth Court.  The Court rejected arguments that Thompson should have barred from raising this issue on appeal, noting “claimant raised this issue at the first opportunity to do so”. Thompson 168 A.3d 412.

In Bradosky, claimant challenged the constitutionality of the 2012 IRE and continued to do so throughout the appeal process.  The Commonwealth Court reversed the WCAB decision and affirmed the WCJ modification of Bradosky status to total disability as he had preserved the constitutionality issue throughout the litigation. 

In Whitfield the Court began its analysis with a review of the Reinstatement petition Section 413(a) which states that a WCJ may at any time modify, reinstate, suspend, or terminate an NCP, Supplemental Agreement, or WCJ Order, upon proof that the disability of an injured employee has increased, decreased, recurred, or has temporarily or finally ceased… provided… a petition is filed within three years after the date of the most recent payment of compensation made prior to the filing of such petition.

Whitfield decision reviewed the two remedies of Section 306 to modify the benefit status of an injured worker.  The first is the earning power assessment remedy of Section 306(d)(2). This is based upon a change in earning power established via vocational expert evidence.  The second remedy was the IRE procedure at Section 306(a.2).  This change in status was made without regard to any change in the claimant’s earning power. 

As the modification of total disability status to partial disability status based upon an IRE was not based upon a change in earning power, there is no reason why the term “disability” in Section 413(a) governing the reinstatement from partial to total disability should be restricted to the traditional definition of earning power (Slip Opinion p.24) The court discusses this “earning power” distinction underlying these two remedies to support its analysis that a section 413(a) reinstatement should not be restricted to the “traditional” definition of earning power.

Post-Protz Reinstatement Burden of Proof

A significant element in the Commonwealth Court analysis is its analogy that the post Protz claimant seeking reinstatement of total disability benefit status is more akin to a claimant seeking reinstatement of benefits from suspension rather than the claimant seeking reinstatement of benefits after a termination.  

In the IRE case there was no allegation that the claimant’s disability had ceased.  The Supreme Court Decision in Latta was referenced for it's holding that a suspension status actually acknowledges a continuing medical injury.  This portion of the analysis is the set-up for the assessment of the claimant’s burden of proof in a Protz reinstatement.  “In situations where benefits were suspended a claimant is only required to demonstrate that the reasons for the suspension no longer exist”. Citing: Pieper.

A claimant is not required to demonstrate with medical evidence that the work related injury giving rise to the benefits continues, a claimant’s testimony to that effect satisfies the claimant’s burden of proof.  Citing: Latta. 

Once the claimant testifies that his/her prior work related injury continues, the burden shifts to the employer to prove the contrary.  Where an employer fails to present evidence to the contrary, the claimant’s testimony, if believed by the WCJ, is sufficient to support reinstatement. Latta.  In such suspension situations, the causal connection between the original work-related injury and the disability which gave rise to the compensation is presumed. Citing: Pieper, Emphasis in the original.

Does the Protz reinstatement claimant need to establish a worsening of their condition? 

In Stanek, the burden of proof - to be entitled to reinstatement of total disability after expiration of the 500-weeks of partial disability - is that claimant must show: (1) a loss of earning capacity and (2) a worsening of the claimant’s medical condition. 

In Whitfield, the Commonwealth Court distinguishes the general rule of Stanek.  In Stanek he did not have his disability status changed based upon an impairment rating evaluation rather Stanek received partial disability benefits based upon a change in his earning power.  After he exhausted his 500-weeks of partial disability, he sought reinstatement on the basis that his physical condition had worsened, rendering him totally disabled. 

Contrast that Stanek status with an IRE case, where a claimant’s change in disability status was never based upon a change in earning power or a change in physical condition, rather in an IRE, the change in status was based solely upon an impairment rating. “It makes little sense to require a claimant seeking reinstatement based upon an unconstitutional IRE to show a change in earning power when the employer was not required to show the same (change) when it had is had the claimant’s disability status modified from total to partial”.  (slip op. p.26)

In Whitfield the WCAB Order was vacated and the case was remanded to the WCJ to make findings of fact related to whether the claimant presented credible testimony that she is totally disabled.  The WCJ did not make any findings regarding credibility of claimant’s testimony as the WCJ Decision was based upon the applicability of Protz I.  In Whitfield claimant testified that she is totally disabled.  The employer presented no evidence to the contrary.  If claimant’s testimony is credited, claimant is entitled to reinstatement as of the date she filed her reinstatement petition (Slip Opinion p.27).

Commonwealth Court addressed the Whitfield Employer framing of the issues presented as involving the retroactivity of Protz II.

The Commonwealth Court dismissed the employer argument that “retroactive application” of Protz II would upset employer’s reasonable expectation of the finality of the prior IRE determination.  The court reasoned that claimant always had the section 413 remedy for modification/reinstatement while receiving benefits or recently concluded benefits, so long as the petition was filed within three years of the date of the most recent payment. This ruling does not upset the employer’s expectation of finality as the Act always provided a mechanism for claimants to seek modification pursuant to Section 413.

The Court reasoned that the issue presented in Whitfield is not truly a question of retroactivity.  “A retroactive law has been defined as one which relates back to and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired… a law is given retroactive effect when it is used to impose new legal burdens on a past transaction or occurrence”. Citing: Department of Labor and Industry.

“Our decision today 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. (Whitfield)

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 framework for filing such petitions. (slip op. p 29).

Significantly, as noted in footnote 24, the Commonwealth Court stated “we do not resolve whether Protz II would apply to cases in which the last payment made was outside the three (3) year period in Section 413(a).

Additional Commonwealth Court applications of its Whitfield analysis.

Also decided on June 6, 2018 were two unreported decisions at:
 (1) Moore v. WCAB (Sunoco Inc.) and (2) Pavlack v. WCAB (UPMC South Side).

These two decisions apply the Whitfield analysis and remand the cases for findings by the WCJ.

These two cases are noteworthy as the Court rejected the Claimant argument that Protz ll should apply to ALL claimants who are receiving partial disability benefits following a change in status based upon an IRE.

In these 2 cases, there was no factual evidence presented below. Accordingly, the Court remand instructions in Moore and Pavlack are somewhat different from the remand instruction in Whitfield.

In Moore and Pavlack the remand orders directed the WCJ to hold an evidentiary hearing to determine whether Claimant’s work-related injury continues.

Query: What is the scope of the evidence to be presented at such hearing?

RECOMMENDATIONS:

1. These legal issues and arguments require individual assessment by experienced workers compensation counsel.

2. Initially (we have heard) the scope of evidentary hearing may vary before each WCJ.

3. Be proactive. Schedule a medical evaluation to assess the presence or absence of work-related disability. 

4. Is there work available within the physical capabilities of claimant? Was there work made available in the past?

5. Assess the evidence available to address the disability status of claimant since the date of the IRE evaluation or since the date of WCJ order directing the modification.

These legal issues will continue to develop as each "type" of IRE case is addressed.