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May 19, 2020

PA Commonwealth Court Says Protz Decision Was Not "Fully Retroactive"

In the continuing saga surrounding Pennsylvania’s Protz decision [see Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 639 Pa. 645, 161 A.3d 827 (Pa. 2017)(Protz II)], the state’s Commonwealth Court held that Protz II was not “fully retroactive.” Readers will recall that Protz II struck down Section 306(a.2) [77 P.S. §511.2(1)] of the state’s Workers’ Compensation Act as unconstitutional because the statute’s language requiring use of “the most recent edition” of the AMA Guides amounted to an impermissible delegation of legislative power to the American Medical Association. The Commonwealth Court added that since the high court’s decision was not fully retroactive, it applied to “all parties in all cases still pending at the time it [was] announced,” but not to the claimant in the instant litigation, since more than three years had elapsed since her last payment of disability compensation [Weidenhammer v. Workers’ Comp. Appeal Bd. (Albright Coll.), 2020 Pa. Commw. LEXIS 391 (May 14, 2020)].

Background

On November 9, 2001, while working for the employer, Claimant fell, sustaining knee contusions that aggravated her bilateral degenerative joint disease. The aggravation necessitated bilateral knee replacement surgery. In 2003, Claimant was awarded total disability compensation as of the date of injury. In April 2004, the employer requested the Bureau of Workers’ Compensation to designate a physician to perform an impairment rating evaluation (IRE) of Claimant. In May 2004, David Baker, M.D., did the requested IRE, using the Fifth Edition of the AMA Guides. Dr. Baker’s IRE concluded that Claimant had a whole body impairment of 36 percent. Under Section 306(a.2), because the IRE rating was less than 50 percent, Claimant’s disability status automatically changed from total to partial as of March 26, 2004. On December 3, 2013, Claimant exhausted her 500 weeks of partial disability benefits and received her final payment of disability compensation.

Claimant’s Petition to Reinstate Disability Compensation

On October 17, 2017 — following the Supreme Court’s decision in Protz II, Claimant filed a petition to reinstate her disability compensation. Claimant argued, in relevant part, that because the 2004 change in her disability status had been authorized by Section 306(a.2), her right to total disability compensation was automatically restored by our Supreme Court’s ruling.

The WCJ denied Claimant’s reinstatement petition, finding that Section 413(a) of the Act [77 P.S. §772], required a reinstatement petition to be filed within three years after the date of the most recent compensation, and Claimant had filed her reinstatement petition almost four years after her last payment. The Board affirmed.

Commonwealth Court’s Decision – Four Ways to Apply New Rule

Initially, the Commonwealth Court reviewed the principles that governed the implementation of a new rule of law. Pursuant to its decision in Blackwell v. State Ethics Commission, 527 Pa. 172, 589 A.2d 1094 (Pa. 1991) (Blackwell III), the Pennsylvania Supreme Court has recognized four different ways a new principle of law can apply to litigants. The court can apply the new rule:

  1. Only to future litigants, not even to the parties in the case that occasioned the announcement of the new law. The Supreme Court termed this application “purely prospective.”
  2. Only to the parties to the case in which the new rule is announced.
  3. To all parties in all cases still pending at the time it is announced.
  4. To the case in which it is announced, to all cases pending at the time the new rule is announced, and to cases which are final at the time the new rule is announced. This fourth manner of apply the case is termed a “fully retroactive” way.

General Rule

The Commonwealth Court continued that, as a general rule, Pennsylvania courts apply the law that is in effect at the time the case is decided, i.e., the above-listed third application. The general rule allows a litigant whose appeal is still pending to receive the benefit of any changes in the law. The Commonwealth Court reviewed a number of cases in which the Blackwell III doctrine had been litigated and noted that there were no factors in the instant case that compelled the Court to refrain from using the state’s general rule. Protz II, therefore, applied to all cases pending at the time of the decision. Claimant’s petition was not so pending at that time and, as noted by the WCJ and affirmed by the Board, more than three years had passed since her last receipt of benefits. The Board’s determination was, therefore, affirmed.