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June 19, 2018

IREs Post-Protz - Does Timing Matter?

Decisions in two cases involving Impairment Rating Evaluations (IRE) were decided by the Commonwealth Court on June 6, 2018.  The cases were Whitfield v. WCAB (Tenet Health System Hahnemann LLC) 608 C.D. 2017, and Pavlack v. WCAB (UPMC South Side), 2018 Pa. Commw. LEXIS 207.

In Whitfield, the Court decided that because Claimant, whose 500 weeks of TPD had expired, filed her petition for reinstatement within 3 years after the date of the last payment of compensation, her petition could proceed.  This was despite the fact that she had raised no constitutional challenge at the time of the modification of her indemnity benefits.  In addition, the Court decided that as in any other case where 500 weeks of partial benefits have run, and the claimant filed a petition for reinstatement within 3 years of the date of the last payment of compensation, her live testimony was a sufficient basis upon which the judge could reinstate her benefits as long as the testimony was deemed credible.

The Court's rationale was that the payment of partial benefits or a period of suspension is by definition an admission of the continuance of the work injury, and so, if the Claimant testifies credibly that the work injury continues and is disabling, that is sufficient evidence to sustain her burden of proof.  The Court held, however, that such a claimant's benefits would only be reinstated as of the date she filed her petition.  This runs contrary to the Board's determinations in similar cases that benefits should be reinstated as of the date of the Protz decision.

In Pavlack, the Court extended the Whitfield doctrine.  Claimant in Pavlack was still within his 500 weeks and therefore there was no issue regarding whether his petition was allowed to proceed, but he did not testify before the WCJ regarding the continuance of his injury or disability.  The Court, citing the Whitfield case, remanded the case back to the Board to be further remanded to the WCJ to take Claimant's testimony regarding that specific issue.  The Court held that if the WCJ credits Claimant's testimony regarding the continuance of his injury and disability, his benefits should be reinstated as of the date of the filing of his petition.  Again, this runs contrary to the Board's handling of such cases.

The good news is that relief is not being granted until the date petitions were filed.  In most cases, the filing date post-dates Protz by a year.  Thus the defendant gets the benefit of another year of TPD toward the 500 weeks.

Bear in mind that this is a Commonwealth Court decision, so this is not the final word on the matter.  The Supreme Court might have a completely different method of handling these cases.  In the meantime, however, we will be guided by the current case law, including Pavlack and Whitfield, and must proceed accordingly.