PA Work Comp total disability benefit status reinstatement, after unconstitutional IRE, is the date of filing of the Petition to Reinstate

In a series of Memorandum Opinions issued throughout 2021, the Pennsylvania Commonwealth Court has consistently held that a Claimant is entitled to reinstatement of  total disability benefit status, as of the filing date of the Claimant Petition to Reinstate, where the change in benefit status was based upon an unconstitutional IRE.

Marcellini v. WCAB (Brighthouse Life Insurance Company and Travelers Indemnity Company) No. 1014 C.D. 2020; Memorandum Opinion filed September 13, 2021

In Marcellini the Commonwealth Court dismissed Claimant arguments that (1) the White decision and its progeny are erroneous regarding the correct date for reinstatement and (2) the claimant has a “vested right” to workers’ compensation benefits.

Procedural Background

Claimant appealed the WCAB decision that reinstated her total disability benefits as of July 18, 2017, the date she filed her petition for reinstatement. (After the 1^st WCJ decision there was a remand to WCJ, to consider the effects of the Whitfield decision and Act 111 enactment. The WCJ decision was unchanged.) The WCAB affirmed the WCJ decision. On appeal, Claimant argued the WCAB erred, as properly she was entitled to reinstatement as of March 19, 2009 - the date her status was modified from total to partial on the basis of an unconstitutional impairment rating evaluation (IRE).

In affirming the WCAB decision, The Commonwealth Court relied upon a recent decision in Whitfield. That opinion held a claimant, who showed that her work-related disability continued, was entitled to reinstatement of her total disability status, as of the date she filed her reinstatement petition.

The Whitfield Court reasoned - Simply because Protz 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…. This (Protz) decision does not alter the claimant’s past status. Rather, it gives effect to the claimant’s status as it existed at the time she filed her reinstatement petition. Citing: Whitfield, 188 A.3d at 617.

The Commonwealth Court compared the date of reinstatement ordered in Dana Holding Corporation v. Workers’ Compensation Appeal Board (Smuck) (Pa. Cmwlth. 2018), aff’d, 232 A.3d 629 (Pa. 2020), to that ordered in Whitfield. In Dana Holding, claimant had appealed the modification of compensation based upon an IRE, and that appeal was pending when Protz was decided.

In the Dana Holding situation, the Court held that the claimant was entitled to reinstatement as of the date of the IRE. By contrast, in Whitfield, claimant did not appeal the modification but, rather, filed a reinstatement petition following the Protz decision. Because the claimant in White had not appealed the initial modification, this Court held that she was entitled to reinstatement as of the date of her petition, not the date of the change in her disability status from total to partial. See White, 237 A.3d at 1231 (explaining the different paradigms of Dana Holding and Whitfield).

In the instant case,  Claimant did not challenge the validity of her 2009 IRE until after Protz was decided in 2017. On this basis, the Board properly reinstated her total disability status as of the date she filed her petitions. Citing: White, supra.

Claimant argued she has a vested right in workers’ compensation benefits. She argued she was deprived of a vested right to total disability compensation by an unconstitutional procedure. This requires the 2009 modification of her disability status to be set aside. However, as noted by the Court in Perillo v. Workers’ Compensation Appeal Board (Extended Healthcare Services, Inc.) (Pa. Cmwlth., a claimant does not have a vested right in workers’ compensation benefits and, thus, there is no entitlement to reinstatement of total disability benefits effective as of the date of the prior invalid IRE.

The Court explained that the Pennsylvania Supreme Court has limited the scope of the protection to vested rights: “It must be something more than a mere expectation, based on an anticipated continuance of existing law. It must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from a demand made by another.” Perillo, slip op. at 5, n.10.

Because workers’ compensation benefits can be changed at any time, “there are no vested rights in workers’ compensation benefits.” Perillo, slip op. at 4. In the instant case, the Court reject Claimant’s premise that she had a vested right to total disability compensation.

PRACTICE POINTERS

1. Continue to pursue the Impairment Rating Evaluation (IRE) as a remedy to limit the duration of total disability benefit payment. After the injured worker receives 104 weeks of total disability benefits, file an IRE request for designation of an expert to conduct an evaluation.

2. As the IRE physician is limited to address only issues of MMI status and the degree of impairment – if you wish to contest the extent or duration of work-related disability – an Independent Medical Examination (IME) is the remedy to pursue.