Whitfield v. Workers' Comp. Appeal Bd.
188 A.3d 599
Pa. Commw. Ct.2018Background
- Claimant injured her back at work in 2002, had surgery, and received TTD; an IRE in 2006 using the AMA Guides (Fifth Ed.) produced a 44% impairment and a WCJ modified her status from total to partial disability. The Board affirmed in 2009.
- Claimant continued receiving benefits and last WC payment occurred in summer 2015; she filed a Petition to Reinstate to total disability on November 13, 2015 (within three years of last payment).
- This litigation arose in the wake of Protz I (Pa. Cmwlth. 2015) (holding Section 306(a.2) unconstitutional insofar as it adopted later AMA Guides without review) and Protz II (Pa. 2017) (Supreme Court struck Section 306(a.2) entirely).
- Employer argued Claimant waived any constitutional challenge by failing to raise it earlier and relied on pre-Protz time limits (60-day appeal and 500-week rules) to bar relief; Claimant argued Protz I/II invalidated the IRE basis for her status and she timely sought reinstatement under Section 413(a).
- The WCJ denied the petition; the Board (4–3) affirmed on waiver/finality grounds. The Commonwealth Court vacated the Board order and remanded, holding Claimant had a statutory right to seek reinstatement because she filed within three years of last payment, but the WCJ must decide whether she credibly remains totally disabled.
Issues
| Issue | Claimant's Argument | Employer's Argument | Held |
|---|---|---|---|
| 1. Whether Claimant may seek reinstatement after an IRE-based status change that is later held unconstitutional | Claimant: Protz renders the IRE invalid; she filed a reinstatement petition within 3 years of last payment under Section 413(a) so she may seek reinstatement | Employer: Claimant waived the constitutional challenge by not raising it earlier; finality and reliance on the now-invalid IRE should bar relief | Held: Claimant may seek reinstatement under §413(a) because she filed within 3 years; Protz II eliminated the statutory IRE basis so status can be challenged when the petition is timely filed |
| 2. Whether Protz II must be given retroactive effect to void prior IREs | Claimant: Protz II should apply so unconstitutional IREs cannot permanently bind claimants to partial status | Employer: Retroactive effect upsets reliance and finality; claim was fully litigated years earlier | Held: Court framed relief as not impermissibly retroactive — it did not impose new burdens on past transactions but gave effect to Claimant’s rights when she timely filed; allowed challenge when within §413(a) period |
| 3. Whether Claimant waived the constitutional argument by not raising it during original proceedings | Employer: Because Claimant did not contest constitutionality earlier, she waived the issue | Claimant: She sought relief at first opportunity after Protz I and filed within statutory reinstatement window | Held: Waiver doctrine did not bar relief here where claimant filed a timely reinstatement petition within three years of last payment and raised the issue at first available opportunity after Protz decisions |
| 4. Proof required to obtain reinstatement once IRE basis is invalidated | Claimant: Need only show continued disability (testimony may suffice) because the IRE-based status change was invalid | Employer: Reinstatement should require showing loss of earning power or worsening condition (preserving employer expectations) | Held: Claimant must prove she remains totally disabled; claimant’s testimony that injury continues is sufficient absent contrary evidence, and the WCJ must make credibility/findings; if credited, reinstatement effective as of petition date |
Key Cases Cited
- Protz v. Workers' Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d 406 (Pa. Cmwlth. 2015) (held §306(a.2) unconstitutional insofar as it adopted later AMA Guides without legislative review)
- Protz v. Workers' Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827 (Pa. 2017) (affirmed unconstitutionality and struck §306(a.2) in its entirety)
- Cozzone ex rel. Cozzone v. Workers' Comp. Appeal Bd., 73 A.3d 526 (Pa. 2013) (§413(a) gives three years from last payment to seek reinstatement)
- Thompson v. Workers' Comp. Appeal Bd. (Exelon Corp.), 168 A.3d 408 (Pa. Cmwlth. 2017) (post-Protz application where claimant raised constitutional issue at first opportunity; relief granted)
- Latta v. Workmen's Comp. Appeal Bd., 642 A.2d 1083 (Pa. 1994) (claimant testimony that injury continues suffices to support reinstatement absent contrary employer evidence)
- Diehl v. Workers' Comp. Appeal Bd. (I.A. Constr.), 972 A.2d 100 (Pa. Cmwlth. 2009) (distinction between status changes based on earning power and IRE impairment ratings)