In Weidenhammer v. WCAB (Albright College), 546 C.D. 2019, the Commonwealth Court issued a significant opinion on the retroactivity of Protz v. WCAB (Derry Area School Dist.), 161 A.3d 827 (Pa. 2017) (Protz II). The Commonwealth Court held Protz II, which determined Impairment Rating Evaluations (IREs) under Section 306(a.2) were invalid because of an unconstitutional delegation of legislative authority, was applicable only to cases where the issue was preserved within 3 years of the last payment of compensation under Section 413(a) of the Act. The Commonwealth Court also rejected Claimant’s contention that Whitfield v. WCAB (Tenet Health System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018) (en banc) was wrongly decided.
The facts in Weidenhammer were not disputed. Claimant sustained a knee injury on November 9, 2001. An IRE was performed on May 5, 2004 under the Fifth Edition of the AMA guidelines and concluded a whole body impairment of 36%. Claimant did not object to attending the IRE, nor did she challenge the change in benefit status throughout 500 weeks. The 500 weeks of partial disability was exhausted and claimant received final payment on December 3, 2013.
Nearly 4 years after the final payment, claimant filed a reinstatement petition on October 17, 2017 on the basis that in Protz II had completely invalidated Section 306(a.2) as unconstitutional. The WCJ denied reinstatement on the basis that Protz II only applied to cases in active litigation. The Board affirmed citing Whitfield, which held that claimants must file a petition within three years of the date of the last payment of compensation in accordance with Section 413(a).
Claimant raised two arguments before the Commonwealth Court. Claimant argued that Protz II must be given full retroactive application under the void ab initio doctrine, a statute held void in its entirety and treated as if it had never been enacted. Employer, represented by Paul A. Cacciamani, Esq., a partner in the firm’s Harrisburg office, countered that the new rule in Protz II should be applied only to matters in active litigation when the new rule was announced or to cases where the issue was raised within three years of the last payment of compensation under Section 413(a) and Claimant did not qualify under either standard. Claimant’s second argument was that Whitfield was wrongly decided by the Commonwealth Court because the Section 413(a) burden of proof involves a change in disability or earning power status whereas Section 306(a.2) involves a change in benefit status without concern for earning power.
The Commonwealth Court provided a retroactivity analysis under Blackwell v. State Ethics Commission), 567 A.2d 630 (Pa. 1989) (Blackwell II) and declined to give full retroactive effect to Protz II. The Court also considered the employer’s reliance on the change in benefit status provided under Section 306(a.2) and agreed with the WCJ that “the potential consequences of a fully retroactive application of Protz II and the impact it would have on ‘long closed matters’ ... militated against rewriting history by voiding every IRE ever done.” The Court held Protz II only applied to litigants who had preserved the issue within three years of the last payment of compensation and “was not intended to be given fully retroactive effect, without regard to the statute of repose in Section 413(a).”
The Commonwealth Court also rejected Claimant’s request to reconsider Whitfield and reaffirmed the current rule that claimant’s must file a petition within three years of the last payment of compensation in order to challenge a change disability status.
The Commonwealth Court opinion in Weidenhammer has a profound impact on the status of long settled IREs. If the Court decided to accept Claimant’s position that Section 306(a.2) was void ab initio under Protz II, every IRE ever performed under Section 306(a.2) would have been invalid opening the door to reinstatement of countless claims that had been suspended in reliance upon the prior rule.
Cipriani & Werner, P.C. is counsel of record in the Weidenhammer matter. In the event that Claimant pursues an appeal to the Pennsylvania Supreme Court for clarification on the retroactive application of Protz II and challenge to the reasoning of Whitfield, we will provide further updates.
If you have any questions about this case or how it may affect you, please contact Paul A. Cacciamani, Esq. at firstname.lastname@example.org.