Employer petitioned for review of an Order of the Workers’ Compensation Appeal Board (WCAB), which reversed a decision made by a Workers’ Compensation Judge (WCJ) and reinstated Claimant to total disability status as of the date of his impairment rating evaluation (IRE).  The Commonwealth Court affirms for the claimant in a unanimous en banc decision.

IRE litigations in progress or pending when the Supreme Court of Pennsylvania (SCOPA) issued Protz II are eligible for restoration of total disability status back to the date of IRE. IRE in this case was in June 2014 and was before WCAB at time of the SCOPA decision. While a litigation is in progress, employers cannot reasonably assert expectation of finality. “We reject Employer’s argument that we should apply Protz II only from its decision date and not the date of the IRE.” Additionally, employers cannot claim “credit” for any time spent on partial status in this context. 

Employer also raised a PA Constitution Remedies Clause argument asserting that its right to the statutory IRE process, which had been relied on by employers for over 20 years before Protz II, is on the same footing as a claimant or plaintiff’s right to a vested/accrued cause of action. Commonwealth Court (CC) disagreed because the matter was still in litigation, thus Employer had no true vested right to continued reliance on the IRE process.  Also, the Remedies Clause is not available to “protect” an action or process based on a statute ultimately found unconstitutional. 

CC notes that challenge to validity of a statute is not waived if not raised to Workers’ Compensation Judges (WCJ) or the WCAB, so long as the claimant’s challenge has been raised at the first opportunity to do so.


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