             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paulette Whitfield,                            :
                             Petitioner        :
                                               :
                      v.                       :    No. 608 C.D. 2017
                                               :    Argued: March 7, 2018
Workers’ Compensation Appeal                   :
Board (Tenet Health System                     :
Hahnemann LLC),                                :
                        Respondent             :



BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE ROBERT SIMPSON, Judge
              HONORABLE P. KEVIN BROBSON, Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE CHRISTINE FIZZANO CANNON, Judge
              HONORABLE ELLEN CEISLER, Judge




OPINION BY
JUDGE COHN JUBELIRER                               FILED: June 6, 2018


       In 2015, this Court held the impairment rating evaluation (IRE) provision
found in Section 306(a.2) of the Workers’ Compensation Act1 (WC Act) was an
unconstitutional delegation of legislative powers “insofar as it purports to adopt a
new version of the American Medical Association’s [(AMA)] Guides to the
Evaluation of Permanent Impairment (Guides)” without review. Protz v. Workers’
Comp. Appeal Bd. (Derry Area Sch. Dist.), 124 A.3d 406, 417 (Pa. Cmwlth. 2015)
(Protz I). As a result, in that case and cases that followed in which the issue was

       1
         Act of June 2, 1915, P.L. 736, as amended, added by the Act of June 24, 1996, P.L. 350,
77 P.S. § 511.2.
properly preserved, we vacated decisions where the change in disability status had
been based on IREs performed using the Fifth or subsequent editions of the Guides
and remanded the matters for evaluation using the Fourth Edition of the Guides,
which was in effect when Section 306(a.2) was enacted. Subsequently, upon review,
the Pennsylvania Supreme Court affirmed our holding but reversed in one important
respect: it found the offending language – “the most recent edition” of the Guides –
could not be severed from the WC Act and instead declared the entirety of Section
306(a.2) unconstitutional. Protz v. Workers’ Comp. Appeal Bd. (Derry Area Sch.
Dist.), 161 A.3d 827, 840-41 (Pa. 2017) (Protz II). In the intervening time between
Protz I and Protz II, a number of claimants whose disability status had been modified
based on what are now considered unconstitutional IREs, such as Paulette Whitfield
(Claimant), filed petitions seeking to have their status reinstated from partial
disability to total disability.2 At issue before us is whether Claimant is entitled to
the benefit of Protz II when her disability status had been modified in 2008 and she
had not challenged the constitutionality of the IRE upon which the modification was
based for more than seven years. Because Claimant filed her Petition to Reinstate
(Petition) within three years of the date of the most recent payment of compensation,
we hold she has a statutory right to seek reinstatement under Section 413(a) of the
WC Act, 77 P.S. § 772. Accordingly, we vacate the Order of the Workers’
Compensation Appeal Board (Board) dated May 10, 2017, which affirmed the
Decision and Order of the Workers’ Compensation Judge (WCJ) denying Claimant’s
Petition. However, because the WCJ made no determination as to whether Claimant



       2
          As discussed more fully herein, a change in status from total to partial disability under
Section 306(a.2) did not alter the rate of compensation; rather, the practical effect was to limit the
receipt of partial disability benefits to 500 weeks.


                                                  2
continues to be totally disabled, which is a prerequisite for reinstatement, we must
remand for further proceedings.


I.     Factual Background
       The facts of this matter are not in dispute. Claimant worked as a respiratory
therapist for Tenet Health System Hahnemann LLC (Employer). On March 25,
2002, she suffered a work injury that ultimately required her to undergo lower back
surgery. From March 25, 2002, until September 28, 2002, Claimant received partial
disability benefits for the time in which she performed alternative work. She began
receiving temporary total disability benefits beginning September 29, 2002, the day
of her surgery.
       On June 13, 2006, Claimant underwent an IRE performed by Dr. Leonard
Brody, using the Fifth Edition of the Guides. Dr. Brody concluded that Claimant
had an impairment rating of 44 percent.3 Based upon that IRE, a WCJ modified
Claimant’s disability status from total to partial disability as of the date of the IRE.
The Board affirmed the modification by Order dated June 1, 2009. The parties
stipulated that Claimant did not raise the constitutionality of the IRE before the
original WCJ or the Board. Although Claimant’s disability status was modified from
total to partial, because she was not able to return to work following her surgery,
Claimant received WC benefits at the total disability rate from September 29, 2002,




       3
         Under Section 306(a.2)(2), a claimant with an impairment rating equal to or greater than
50 percent was presumed to be totally disabled, whereas a claimant with an impairment rating less
than 50 percent was considered partially disabled. 77 P.S. § 511.2(2).



                                               3
until mid-July 2015,4 when she received her last WC payment. Claimant testified
she continued to receive medical benefits.
       On November 13, 2015, approximately one month after our decision in
Protz I, Claimant filed her Petition seeking reinstatement to total disability based on
that decision. Employer filed a timely Answer to the Petition on November 17, 2015,
alleging reinstatement is not warranted for three reasons: (1) “Protz [I] ha[d] not
been given retroactive effect”; (2) Claimant waived the constitutional issue; and (3)
“[t]he law of the case doctrine prevents re-litigation of the change to partial disability
status.” (Answer, Reproduced Record (R.R.) at 9a.)
       At hearings on the Petition, Claimant testified that she did not feel as though
she had fully recovered from her injuries and that she had been unable to work at all
from the time of her surgery through July 15, 2015. There was also evidence that
Claimant was involved in a motor vehicle accident in May 2012, in which she injured



       4
          There are varying dates in the record as to when Claimant’s benefits ended. In her April
19, 2016 Decision, addressing the November 2015 reinstatement petition at issue in this case, the
WCJ found Claimant was paid at the total disability rate until July 17, 2015. (WCJ Decision,
Finding of Fact (FOF) ¶ 6c, Apr. 19, 2016, Reproduced Record (R.R.) at 39a.) Claimant testified
at the hearing that the last date of payment was July 13, 2015. (Hr’g Tr., Nov. 18, 2015, at 7, R.R.
at 17a.) The WCJ said at the hearing that the payment printout showed she was paid through July
13, 2015, but the date on the check was July 15, 2015. (Id. at 8, R.R. at 18a.) The July 15, 2015
date is what counsel also stipulated to as the last date of payment at the December 21, 2015 hearing.
(Hr’g Tr., Dec. 21, 2015, at 6-7.) However, in an April 14, 2016 Decision, addressing separate
reinstatement and penalty petitions filed in July 2015 by Claimant, the WCJ found Claimant was
paid at the temporary total disability compensation rate until July 13, 2015, when Employer ceased
payment. (WCJ Decision, FOF ¶ 3c, Apr. 14, 2016, R.R. at 31a.) The WCJ further found Claimant
had not yet exhausted her 500 weeks of partial disability benefits at that time and ordered Employer
to pay Claimant such benefits through August 19, 2015. (Id. ¶¶ 7-8, R.R. at 32a.) At oral
argument, counsel for Claimant stated that those benefits for the weeks of July 13, 2015, through
August 19, 2015, were actually received in April 2016, shortly after the WCJ issued the April 14,
2016 Decision. Because the date discrepancy does not impact our analysis in this case, we will
simply refer to the date of last payment as occurring in the summer of 2015.


                                                 4
her head, neck, and upper back, but not her lower back. The parties stipulated many
of the facts surrounding the IRE.
      Following the hearings, the WCJ issued an Order denying Claimant’s Petition.
After recounting our holding in Protz I, the WCJ found that Claimant was not
entitled to reinstatement of her benefits based upon Protz I for a number of reasons:

      a) in Protz [I], the Commonwealth Court did not expressly void all prior
      [IREs] or state that its decision applied retroactively; b) in
      Pennsylvania, generally only those matters that are pending in any
      phase of litigation, including appeal, or future matters are entitled to a
      benefit in the change of the law, and the litigation in the instant matter
      ended on June 1, 2009; [and] c) the constitutionality of Section 306(a.2)
      was not raised or preserved in the underlying litigation.

(WCJ Decision, Finding of Fact (FOF) ¶ 9, April 19, 2016, R.R. at 40a (footnote
omitted).)   The WCJ cited this Court’s decision in Winchilla v. Workers’
Compensation Appeal Board (Nexstar Broadcasting), 126 A.3d 364 (Pa. Cmwlth.),
petition for allowance of appeal denied, 130 A.3d 1293 (Pa. 2015), for the
proposition that Claimant waived the constitutionality argument by not raising it
previously. (Id. ¶ 9 n.1.) Because of the WCJ’s disposition, she did not make a
finding regarding Claimant’s credibility. (Id. ¶ 10.)
      Claimant appealed. In a 4-3 decision, the Board affirmed. The majority found
Claimant waived the right to challenge the constitutionality of the IRE. Citing Riley
v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), 154
A.3d 396 (Pa. Cmwlth. 2016), the Board found Claimant did not challenge the
constitutionality of the IRE before the WCJ or the Board when her change in status
was first being litigated. (Board Opinion (Op.) at 3-4.) Furthermore, the Board
noted that Claimant did not appeal the Board’s June 1, 2009 order, in which the
Board affirmed the original WCJ decision modifying her status to partial disability.


                                          5
(Id. at 3.) The Board also explained that a claimant may appeal a change in status at
any time during the 500-week period of partial disability so long as the claimant
presents evidence of a revised impairment rating of at least 50 percent. (Id. at 4
(citing Riley, 154 A.3d at 400 n.5).) However, the Board held that Claimant was not
entitled to a modification of her disability status because she failed to present such
evidence. (Id.)
       The Board dissent disagreed with the Board majority’s conclusion that
Claimant’s change in disability status was final. The dissent distinguished Riley,
noting in Riley the claimant attempted to challenge the IRE more than 500 weeks
after the change in disability status, whereas Claimant here filed her petition within
the 500-week period following her change in disability status.5 (Board Dissenting
Op. at 1.) Because Claimant’s status was changed on June 13, 2006, and her Petition
was filed on November 13, 2015, the dissent found she challenged the
constitutionality within the 500-week period found in Section 306(a.2)(4); therefore,
her case was not “final.” (Id. at 2.)
       The dissent further found that Protz I should be applied retroactively because
it satisfied the criteria for retroactive application in Blackwell v. State Ethics
Commission, 589 A.2d 1094 (Pa. 1991). (Board Dissenting Op. at 2.) The first


       5
         While it is true that Claimant filed her Petition within 500 weeks of the change in status,
which was June 13, 2006, the dissent then went on to cite Section 306(a.2)(4), which provides, in
relevant part, that “[a]n employe may appeal the change to partial disability at any time during
the five-hundred week period of partial disability.” 77 P.S. § 511.2(4) (emphasis added). Here,
Claimant had already received 20 weeks and 6 days of partial disability benefits in 2002, leaving
her with just 479 weeks, 1 day before her 500 weeks of partial disability benefits were exhausted.
Although she did not actually receive payment on approximately four weeks of partial disability
until April 2016, those benefits were for the period of July 13, 2015, through August 19, 2015.
Therefore, Claimant exhausted her benefits in the summer of 2015 but did not file her Petition
until November 2015. Thus, Claimant did not file her Petition “during the five-hundred week
period of partial disability.”


                                                 6
criterion is the purpose to be served by the new rule. The dissent concluded that
“applying Protz [I] retroactively to the instant case serves the important purpose of
mandating conformity with the constitution.”          (Id.)   Otherwise, “[a]llowing
claimants to have their disability status, and ultimately have their benefits
completely cut off, based upon an IRE that was based upon an unconstitutional
section of the [WC] Act greatly prejudices those claimants and blocks the main
purpose of the Protz [I] decision.” (Id.) With regard to the second criterion – the
extent of the reliance on the old rule – the dissent noted that “the IRE process is
inherently not a final process, and remains an open case for 500 weeks past the time
that a claimant’s disability status is changed.” (Id.) Because the Guides could
change and claimants retain a right to challenge their status during this 500-week
period, the dissent found “employers have never had full reliance that a change in a
claimant’s disability status to partial will be final as that change only becomes final
once the 500[-]week period has expired.” (Id. at 2-3.) In terms of the final criterion,
which is the effect on the administration of justice by retroactive application of the
new rule, the dissent found “there would be limited effect.” (Id. at 3.) The dissent
believed “there would be a more adverse effect on the administration of justice if
Protz [I] was not retroactively applied to [cases in which the 500-week period had
not expired], as these are not final cases.” (Id.) If Protz I is not given retroactive
effect, the dissent stated “it would lead to the absurdity that claimants would have
the right to appeal IREs, but have no actual remedy to carry through on that appeal,
as the right to appeal would be based upon a now unconstitutional section of the
[WC] Act.” (Id.)
      Claimant petitioned for review of the Board’s Order.

II.   Analysis


                                          7
       On appeal,6 Claimant argues the Protz decisions apply and she is entitled to
have her disability status restored from partial to total disability because the IRE
upon which the change was based was unconstitutional and invalid. Claimant
contends this case is “strikingly similar” to our recent decision in Thompson v.
Workers’ Compensation Appeal Board (Exelon Corporation), 168 A.3d 408 (Pa.
Cmwlth. 2017), in which we reversed the Board’s affirmance of a WCJ’s decision
modifying a claimant’s disability status from total to partial. (Claimant’s Brief (Br.)
at 8.) Claimant also argues that reinstatement petitions may be filed within three
years of the date of last payment, which is satisfied here. (Id. at 9.)
       In addition, Claimant argues justice and public policy require retroactive
application of Protz II. Because Protz II struck the entirety of the IRE provision
from the WC Act, Claimant asserts that injured employees no longer have a statutory
remedy to seek a change in status, and “by eliminating the statutory process for an
employee to challenge his or her IRE-based partial disability status, the [Supreme]
Court could not have intended to bind forever claimants to a partial disability status
that was unconstitutionally enacted.” (Id. at 13.) Moreover, Claimant emphasizes
the remedial nature of the WC Act and stresses it should be liberally construed in
favor of injured workers. (Id. at 14.)
       Employer argues that reinstatement is not warranted because, at the time
Protz II was decided, “[C]laimant had already conclusively litigated the change in
her benefit status, collected 104 weeks of temporary total disability benefits, and
collected the entire[t]y of her 500 weeks of temporary partial disability benefits.”


       6
        This Court’s review in workers’ compensation appeals is limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of law was
committed, or whether constitutional rights were violated. Elberson v. Workers’ Comp. Appeal
Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth. 2007).


                                              8
(Employer’s Br. at 11.) Employer contends that employers have relied on these
now-invalid IREs, which largely went unchallenged until the Protz decisions.
Employer explains:

      [w]hile the statutory scheme set forth in Section 306(a.2) of the [WC]
      Act allowed a claimant to prove an entitlement to temporary total
      disability benefits at some point within the future of that 500 week
      period, presuming he/she was able to demonstrate a total person
      impairment of 50 [percent] or greater, the statute did not provide a
      claimant with 500 weeks within which to look back and invalidate a
      past IRE and the corresponding change in benefit status.

(Id. at 15 (emphasis in original).) Here, Employer argues that Claimant fully
litigated her change in benefit status a decade ago but never challenged the
constitutionality of the IRE provisions during that litigation. (Id. at 15-16, 18.)
According to Employer, if the Court were to give retroactive effect to Protz II, the
parties’ expectation of finality would be upset. (Id. at 17.)


      A.     Protz I and II
      Before we reach the merits of this appeal, it is important to understand the
holdings that have gotten us to this point: Protz I and Protz II. Like this case, the
facts in Protz were not in dispute. The claimant suffered a work injury in 2007.
Although she returned to work for a short time, her “work injury recurred” and her
benefits were reinstated. Protz I, 124 A.3d at 408. In October 2011, Claimant
underwent an IRE performed by a physician using the Sixth Edition of the Guides.
Based upon that IRE, the employer filed a modification petition, which the WCJ
granted, converting the claimant’s total disability benefits to partial disability
benefits.




                                          9
       The claimant appealed to the Board and asserted that Section 306(a.2) of the
WC Act was an unconstitutional delegation of legislative authority in violation of
the Pennsylvania Constitution.7 Section 306(a.2) provided, in pertinent part, that a
claimant’s impairment rating shall be determined “pursuant to the most recent
edition of the [AMA Guides].” 77 P.S. § 511.2. At the time the section was added,
the Fourth Edition of the Guides was in effect. Because the impairment rating for
the same injury could vary between editions of the Guides, a claimant may be
determined to be more or less impaired under one edition than another edition. The
claimant in Protz argued that Section 306(a.2) effectively gave the AMA, rather than
the General Assembly, authority to establish the criteria under which a claimant’s
disability status is determined.
       On September 18, 2015, this Court rendered its decision in Protz I. We
recognized that the General Assembly may delegate its legislative power but not
without constraints.       First, “the basic policy choices must be made by the
Legislature,” and second, the “legislation must contain adequate standards which
will guide and restrain the exercise of the delegated administrative functions.”
Protz I, 124 A.3d at 413 (quotations omitted). With those principles in mind, we
held that:

       the General Assembly [] failed to prescribe any intelligible standards
       to guide the AMA’s determination regarding the methodology to be
       used in grading impairments. Section 306(a.2) of the [WC] Act is
       wholly devoid of any articulations of public policy governing the AMA
       in this regard and of adequate standards to guide and restrain the
       AMA’s exercise of this delegated determination by which physicians
       and WCJs are bound. Indeed, Section 306(a.2) merely requires that the
       most recent version of the AMA Guides be used to determine a

       7
         Article II, Section 1 of the Pennsylvania Constitution provides: “The legislative power
of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and
a House of Representatives.” Pa. Const. art. II, § 1.


                                              10
      claimant’s impairment rating. 77 P.S. § 511.2. Accordingly, under this
      basis alone, we find Section 306(a.2) of the [WC] Act unconstitutional.

Protz I, 124 A.3d at 415 (emphasis in original) (footnote omitted).
      We also held that Section 306(a.2) is devoid of any “mechanism requiring
governmental review of the Guides by the promulgation of regulations.” Id. We
found that at the time Section 306(a.2) was enacted, the General Assembly adopted
the AMA’s methodology contained in the Fourth Edition of the Guides as its own.
Id. at 416. Subsequent editions of the Guides, however, were not reviewed, let alone
re-adopted by the General Assembly. Nor did the General Assembly delegate
review of the new editions to some administrative agency. Thus, we observed that
“any form of review of subsequent editions of the AMA Guides is wholly absent,
leaving unchecked discretion completely in the hands of a private entity.” Id. In
doing so, “[t]he legislature [] simply provided a private party—the AMA—with
carte blanche authority to implement its own policies and standards, proactively
adopted those standards, sight unseen.” Id.
      Having concluded that Section 306(a.2) was an unconstitutional delegation of
legislative power because “it proactively approved versions of the AMA Guides
beyond the Fourth Edition without review,” we vacated the Board’s decision and
remanded the matter to the Board with instruction to remand to the WCJ for an IRE
determination applying the Fourth Edition of the Guides. Id.
      Both parties appealed our decision to the Pennsylvania Supreme Court. The
employer argued we erred in concluding Section 306(a.2) was unconstitutional. The
claimant argued we erred in remanding her case for application of the Fourth Edition
of the Guides instead of striking down the offensive section in its entirety.
      On appeal, the Pennsylvania Supreme Court, in a decision rendered June 20,
2017, agreed with our determination that Section 306(a.2) was an unconstitutional

                                          11
delegation of legislative authority. It held “[b]y any objective measure, the authority
delegated to the AMA in Section 306(a.2) of the [WC] Act is even more broad and
unbridled” than in other nondelegation cases. Protz II, 161 A.3d at 835. The
Supreme Court explained the various problems with Section 306(a.2):

             The General Assembly did not favor any particular policies
      relative to the Guides’ methodology for grading impairments, nor did
      it prescribe any standards to guide and restrain the AMA’s discretion to
      create such a methodology. Without any parameters cabining its
      authority, the AMA would be free to: (1) concoct a formula that yields
      impairment ratings which are so inflated that virtually every claimant
      would be deemed to be at least 50 [percent] impaired; or (2) draft a
      version of the Guides guaranteed to yield impa[ir]ment ratings so
      miniscule that almost no one who undergoes an IRE clears the 50
      [percent] threshold; or (3) do anything in between those two extremes.
      The AMA could add new chapters to the Guides, or it could remove
      existing ones. It could even create distinct criteria to be applied only to
      claimants of a particular race, gender, or nationality.

              Consider also that the AMA could revise the Guides once every
      ten years or once every ten weeks. If the AMA chooses to publish new
      editions infrequently, Pennsylvania law may fail to account for recent
      medical advances. By contrast, excessive revisions would likely pose
      severe administrative headaches, inasmuch as the Guides automatically
      have the force and effect of law once published. As these hypotheticals
      illustrate, the General Assembly gave the AMA de facto, unfettered
      control over a formula that ultimately will determine whether a
      claimant’s partial-disability benefits will cease after 500 weeks.

              Equally problematic, the General Assembly did not include in
      Section 306(a.2) any of the procedural mechanisms that this Court has
      considered essential to protect against “administrative arbitrariness and
      caprice.” The General Assembly did not, for example, require that the
      AMA hold hearings, accept public comments, or explain the grounds
      for its methodology in a reasoned opinion, which then could be subject
      to judicial review. Further, the AMA physicians who author the Guides
      are, of course, not public employees who may be subject to discipline
      or removal.




                                          12
Id. at 835-36 (internal footnotes and citations omitted).8
       While the Supreme Court affirmed this Court to the extent it found Section
306(a.2) unconstitutional, it reversed as to the remedy. This Court had remanded
the matter so that the claimant’s impairment rating could be evaluated using the
Fourth Edition of the Guides, which was the edition in effect at the time Section
306(a.2) was enacted. Protz I, 124 A.3d at 416. However, the Supreme Court held
that the offending language requiring the use of the most recent version of the Guides
for IRE determinations could not be severed from the WC Act. Protz II, 161 A.3d
at 841. When the offending language was struck, the remainder of Section 306(a.2)
was rendered “incomprehensible.” Id. The Supreme Court found the Guides
“provide[d] critical context to the statute’s otherwise hollow phrases.” Id. Because
the offending language could not be severed from the WC Act, the Court struck
Section 306(a.2) in its entirety from the WC Act.9 Id.


       B.      The Aftermath
       Even before the Supreme Court struck down the entirety of Section 306(a.2)
as unconstitutional, claimants, whose disability status had been modified from total
to partial disability based upon an IRE performed using the Fifth or later edition of
the Guides, filed various petitions seeking to have their status converted back to total
disability based upon this Court’s decision in Protz I. The WC bar sought to define
exactly what Protz I meant. Counsel for claimants advocated for a broad, expansive


       8
           In Protz I, this Court also expressed concern about delegating legislative authority to a
private, nongovernmental party. 124 A.3d at 416. In Protz II, the Supreme Court did not adopt or
reject this view, leaving the issue for another day. 161 A.3d at 837.
         9
           A bill was introduced in November 2017 seeking to amend the IRE provision in response
to Protz II. S.B. 963, 2017-18 Gen. Assem., Reg. Sess. (Pa. 2017). The bill was removed from
consideration on March 26, 2018.


                                                13
application, claiming that all IREs performed using any version other than the Fourth
Edition of the Guides were void ab initio. Counsel for employers and insurers
promoted a narrow construction.
       As a result, this Court had a number of occasions to examine the parameters
of Protz I before the Supreme Court issued Protz II.10 First was Winchilla, which
was argued seriately with Protz I. In Winchilla, the claimant’s disability status was
modified from total to partial based upon an IRE using the Sixth Edition of the
Guides. The claimant there appealed to the Board, challenging the constitutionality
of Section 306(a.2), but the Board affirmed, noting it could not decide constitutional
issues. The claimant appealed to this Court and in his petition for review merely
stated that “the IRE provisions . . . as applied to [the claimant] and/or facially, are
unconstitutional, as they are capricious, arbitrary, not reasonably calculated,
confiscatory, not used to assess disability in the [WC] sense, improperly disregard
evidence that [the claimant] was totally disabled and improperly extinguish rights.”
Winchilla, 126 A.3d at 367 (quoting the claimant’s petition for review ¶ 8). In his
brief, the claimant expounded on that argument and argued specifically that Section
306(a.2) was an unconstitutional delegation of legislative authority. The employer
argued the claimant waived that argument by failing to raise it in his petition for
review. We agreed, finding the claimant did not cite Article II, Section 1 of the
Pennsylvania Constitution or in any manner assert the IRE provisions were
unconstitutional because they delegated legislative authority in his petition for
review. Id. at 368. Rather, the claimant only made an “unspecified constitutional
claim,” which was insufficient to preserve this argument for appellate review under

       10
          The list of cases discussed herein is not exhaustive but is illustrative of our decisions
post-Protz I.



                                                14
Rule 1513(d) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P.
1513(d).11 Id. The WCJ and Board in the instant case cited Winchilla for support
that the failure to raise the constitutionality of the IRE provisions before the WCJ or
Board in the litigation over the validity of the IRE results in its waiver.
       We next examined the effect of Protz I in Riley, the case primarily relied upon
by the Board in its decision here. In Riley, the claimant’s disability status was
changed from total to partial disability after undergoing an IRE performed pursuant
to the Fifth Edition of the Guides. The claimant subsequently sought to amend her
Notice of Compensation Payable to include additional injuries, which the WCJ
denied. While her appeal of that decision to the Board was pending, this Court issued
its decision in Protz I, and the claimant filed a motion with the Board seeking to
vacate the IRE, citing Protz I. The Board affirmed the WCJ’s decision and found
that the claimant failed to challenge the constitutionality of the IRE earlier and thus
was precluded from doing so. On appeal to our Court, we found Protz I did not
control disposition of Riley. We noted that in Protz I, the claimant appealed the IRE
within 60 days, whereas in Riley, the claimant took nearly 10 years to challenge the
constitutionality of the IRE. Riley, 154 A.3d at 400. We held that under Section
306(a.2)(2) of the WC Act, a claimant has 60 days to appeal a reduction in disability




       11
           As discussed in Winchilla, Rule 1513(d) was amended in December 2014, after the
petitioner in that case filed his petition for review, to allow an appellate court to consider an issue,
even if it was not raised in the petition, “if the court is able to address the issue based on the
certified record.” Winchilla, 126 A.3d at 368 n.6 (emphasis omitted) (quoting Pa.R.A.P. 1513(d)).
The effect of the amendment was to soften the waiver provisions.



                                                  15
benefits.12 Id. Because the claimant did not appeal within that time period, we
determined she waived the ability to challenge the constitutionality of the IRE.13 Id.
       We made no mention of the 60-day limit in Section 306(a.2)(2) in Beasley v.
Workers’ Compensation Appeal Board (PECO Energy Company), 152 A.3d 391
(Pa. Cmwlth. 2016). However, it was unnecessary to do so because, in that case, the
appeal of the change in the claimant’s status was pending at the time Protz I was
decided. There, the employer filed a petition to modify benefits based upon an IRE
performed using the Sixth Edition of the Guides. The WCJ denied the petition, and
the employer appealed. While the appeal was pending before the Board, Protz I was
decided, and the claimant argued that the IRE physician’s testimony was
incompetent since it was based on the Sixth Edition of the Guides. The Board
refused to address the issue because the claimant had not previously appealed the
WCJ’s decision or challenged the constitutionality of the IRE. The Board reversed
on the merits of the employer’s appeal, resulting in the claimant appealing the
Board’s order to our Court. Although the claimant raised this Court’s decision in
Protz I for the first time on appeal to the Board, and not to the WCJ, we rejected an
argument that the issue was not preserved, reasoning that the claimant raised it at the
first opportunity. Id. at 399. Consistent with Protz I, the matter was remanded for
a new IRE using the Fourth Edition of the Guides. Id.
       Last year, prior to Protz II, we again had occasion to examine the effect of
Protz I. In Gillespie v. Workers’ Compensation Appeal Board (Aker Philadelphia

       12
           Section 306(a.2)(2) provided, in pertinent part, that “no reduction shall be made until
sixty days’ notice of modification is given.” 77 P.S. § 511.2(2).
        13
           We also noted under Section 306(a.2)(4) of the WC Act that a claimant can challenge an
IRE at any time during the 500-week statutory benefit period by introducing a new IRE showing
an impairment rating of 50 percent or greater. In Riley, however, the claimant did not present such
evidence. 154 A.3d at 400 n.5.



                                                16
Shipyard) (Pa. Cmwlth., No. 1633 C.D. 2016, filed May 17, 2017) (Gillespie I),14 a
claimant underwent an IRE in 2007 using the Fifth Edition of the Guides and had
his disability status changed from total to partial. Eight years later, relying on Protz
I, the claimant filed a reinstatement petition asserting the IRE was a nullity since it
relied upon the Fifth Edition of the Guides. The WCJ granted the petition, but the
Board reversed, explaining the claimant only had 60 days to challenge the IRE under
Section 306(a.2)(2). We agreed, citing Riley, that Protz I did “not give [claimants]
a second chance to appeal [an] IRE” after the 60-day period expired. Gillespie, slip
op. at 7. We distinguished Gillespie I from Mazuruk v. Workers’ Compensation
Appeal Board (Gillin and Sons Contracting, Inc.) (Pa. Cmwlth., No. 1216 C.D.
2015, filed October 14, 2016), where we remanded the matter with instructions to
allow the employer to have the claimant submit to a new IRE using the Fourth
Edition of the Guides, consistent with our holding in Protz I. We explained the
claimant in Gillespie I did not lodge a timely challenge as the claimant in Mazuruk
did.15 Gillespie I, slip op. at 7. Because the claimant did not challenge the IRE
within 60 days as required by Section 306(a.2)(2), we found his subsequent
challenge based on Protz I to be too late. Id., slip op. at 8.
       In January 2018, after Protz II was decided, the Supreme Court granted the
claimant’s petition for allowance of appeal in Gillespie I, vacated our order, and
remanded that matter to this Court for a determination on whether Protz II applies
retroactively, thereby rendering the claimant’s IRE void ab initio.16 Gillespie v.

       14
           Pursuant to Section 414(a) of this Court’s Internal Operating Procedures, unreported
panel decisions issued after January 15, 2008, may be cited “for [their] persuasive value, but not
as binding precedent.” 210 Pa. Code § 69.414(a).
        15
           In Mazuruk, the claimant was in the process of appealing his 2012 IRE when we issued
our decision in Protz I.
        16
           The Supreme Court also stated that, on remand, this Court could consider any argument
that the claimant’s death made the matter nonjusticiable. Gillespie II, 179 A.3d at 451.


                                               17
Workers’ Comp. Appeal Bd. (Aker Phila. Shipyard), 179 A.3d 451 (Pa. 2018)
(Gillespie II).
       This Court’s decisions described above have one thing in common: they all
predate Protz II, and so were decided before Section 306(a.2) was struck down as
unconstitutional in its entirety. Thus, their reliance on the time requirements set
forth in Section 306(a.2) establishing when an IRE must be challenged has been
undermined.
       One of the first cases we decided after the Supreme Court issued its decision
in Protz II was Thompson, which was decided approximately two months later. In
Thompson, the claimant’s disability status was changed on August 30, 2005, from
total to partial disability following an IRE performed using the Fifth Edition of the
Guides. The parties were in the midst of litigating the merits of the earlier change
in status based on the claimant’s 2011 petition for review challenging the 2005 IRE
when Protz I was decided. Although she had not challenged the constitutionality of
the IRE before the WCJ or the Board, the claimant, in her petition for review to this
Court, did.17 The employer argued the claimant failed to timely raise the issue and
should be barred from doing so on appeal. We rejected the employer’s argument
noting that “this matter began before Protz I and Protz II were decided,” it implicated
the validity of the statute, and the “[c]laimant raised this issue at the first opportunity
to do so.” Thompson, 168 A.3d at 412 n.4. We recognized that Protz II “essentially
struck the entire IRE process from the [WC] Act” and reversed the Board’s decision
modifying the claimant’s benefits from total to partial. Id. at 412-13.

       17
          This was the claimant’s second petition for review with this Court. In her first appeal,
we vacated the Board’s order and remanded for the Board to consider the merits of her appeal.
Thompson v. Workers’ Comp. Appeal Bd. (Exelon Corp.) (Pa. Cmwlth., No. 34 C.D. 2015, filed
Jan. 29, 2016). It was in her petition for review of the Board’s remand order that the claimant
raised the constitutionality of the IRE under Protz II.


                                               18
        Shortly before argument in the instant case, we issued a decision in Bradosky
v. Workers’ Compensation Appeal Board (Omnova Solutions, Inc.) (Pa. Cmwlth.,
No. 1567 C.D. 2015, filed February 2, 2018). In Bradosky, the employer filed a
modification petition alleging the claimant’s status should be changed from total
disability to partial disability based upon a 2012 IRE using the Sixth Edition of the
Guides. The claimant, in his answer, challenged the constitutionality of the IRE
process and continued to do so throughout the litigation before the WCJ, the Board,
and our Court. The WCJ and the Board noted the claimant’s continuing objections
but found they did not have the authority to address constitutional issues. On
appeal,18 we reversed the Board’s decision, which had affirmed the WCJ’s
modification of the claimant’s benefits based on the IRE. We noted that the case
was pending at the time Protz II was decided and the record was clear that the
claimant challenged the constitutionality of the IRE provision throughout the
litigation. Bradosky, slip op. at 7.
        In summary, following Protz I, but before Protz II, this Court relied upon other
subsections of Section 306(a.2), which required a claimant to challenge an IRE
within a certain amount of time. If a claimant did not satisfy those statutory time
requirements, we held he or she could not challenge the IRE. However, post-Protz
II, those statutory time requirements were no longer valid and we allowed a claimant
to raise the constitutionality of the IRE for the first time outside of those time
periods, but while the litigation involving the change in status was still pending.
Thompson, 168 A.3d at 412.


        C.       Present Appeal

        18
             At the employer’s request, our review of Bradosky was stayed pending disposition of
Protz II.


                                                19
      Having summarized the development of the law, we turn to the merits of the
instant appeal. Claimant argues she is entitled to reinstatement of her disability
status from partial to total because she filed her reinstatement petition within three
years after the date of her most recent payment of compensation, and the IRE upon
which the modification of her disability status was based is invalid. She claims her
case is most analogous to Thompson because she filed her reinstatement petition at
the first available opportunity, just one month after our decision in Protz I. She also
argues that Protz should be applied retroactively. Employer, however, argues
against retroactive application, stressing that Claimant did not raise the
constitutionality of the IRE at any time during the underlying litigation related to the
IRE itself and she cannot do so now because it would upset Employer’s reasonable
expectation of finality.
      In this case, Claimant filed a reinstatement petition, which is governed by
Section 413(a) of the WC Act. That section, in relevant part, provides:

      A workers’ compensation judge designated by the department may, at
      any time, modify, reinstate, suspend, or terminate a notice of
      compensation payable, an original or supplemental agreement or an
      award of the department or its workers’ compensation judge, upon
      petition filed by either party with the department, upon proof that the
      disability of an injured employe has increased, decreased,
      recurred, or has temporarily or finally ceased, or that the status of
      any dependent has changed. Such modification, reinstatement,
      suspension, or termination shall be made as of the date upon which it is
      shown that the disability of the injured employe has increased,
      decreased, recurred, or has temporarily or finally ceased, or upon which
      it is shown that the status of any dependent has changed: Provided,
      [t]hat . . . no notice of compensation payable, agreement or award shall
      be reviewed, or modified, or reinstated, unless a petition is filed with
      the department within three years after the date of the most recent
      payment of compensation made prior to the filing of such petition.

77 P.S. § 772 (emphasis added).

                                          20
      In Cozzone ex rel. Cozzone v. Workers’ Compensation Appeal Board (East
Goshen Township), 73 A.3d 526, 536 (Pa. 2013), our Supreme Court explained that
this section provides a claimant with three years from the date of last payment of
compensation to petition for reinstatement. Here, it is undisputed that Claimant filed
her Petition within three years after the date of the most recent compensation
payment. Her last payment was received in mid-July 2015, just four months before
she filed her Petition.
      Thus, we examine whether “the disability of [Claimant] has increased,
decreased, recurred, or has temporarily or finally ceased.” 77 P.S. § 772. We begin
by noting that the term “disability” is a term of art in the workers’ compensation
context. Generally, “disability” is synonymous with loss of earning power resulting
from a work-related injury. Westmoreland Reg’l Hosp. v. Workers’ Comp. Appeal
Bd. (Stopa), 789 A.2d 413, 416 (Pa. Cmwlth. 2001). “Disability” may also refer to
a status, which is linked to the rate or amount of compensation to which a claimant
is entitled. Traditionally, this status was linked to a claimant’s earning power. Under
Section 306(b) of the WC Act, 77 P.S. § 512, an employer could modify a claimant’s
total disability benefits to partial disability by showing the claimant had earning
power. Section 306(b)(2) provides:

      “Earning power” shall be determined by the work the employe is
      capable of performing and shall be based upon expert opinion evidence
      which includes job listings with agencies of department, private job
      placement agencies and advertisements in the usual employment area.
      Disability partial in character shall apply if the employe is able to
      perform his previous work or can, considering the employe’s residual
      productive skill, education, age and work experience, engage in any
      other kind of substantial gainful employment which exists in the usual
      employment area in which the employe lives within the
      Commonwealth. If the employe does not live in this Commonwealth,
      then the usual employment area where the injury occurred shall apply.


                                          21
       If the employer has a specific job vacancy the employe is capable of
       performing, the employer shall offer such job to the employe. In order
       to accurately assess the earning power of the employe, the insurer may
       require the employe to submit to an interview by a vocational expert
       who is selected by the insurer and who meets the minimum
       qualifications established by the department through regulation.

77 P.S. § 512(2).
       The addition of Section 306(a.2) to the WC Act in 1996 provided another
method of changing a claimant’s disability status from total to partial disability, but
this time, without regard to any change in a claimant’s earning power. Section
306(a.2)(1) provided:

       When an employe has received total disability compensation pursuant
       to clause (a) for a period of one hundred four weeks, unless otherwise
       agreed to, the employe shall be required to submit to a medical
       examination which shall be requested by the insurer within sixty days
       upon the expiration of the one hundred four weeks to determine the
       degree of impairment[19] due to the compensable injury, if any. The
       degree of impairment shall be determined based upon an evaluation by
       a physician who is licensed in this Commonwealth, who is certified by
       an American Board of Medical Specialties approved board or its
       osteopathic equivalent and who is active in clinical practice for at least
       twenty hours per week, chosen by agreement of the parties, or as
       designated by the department, pursuant to the most recent edition of the
       American Medical Association “Guides to the Evaluation of Permanent
       Impairment.”

77 P.S. § 511.2(1). Section 306(a.2)(2) provided that a claimant “shall be presumed
to be totally disabled” if an IRE shows an impairment rating20 equal to or greater
than 50 percent, while if the impairment rating is less than 50 percent, the claimant
is considered partially disabled. 77 P.S. § 511.2(2) (emphasis added). Under

       19
          “Impairment” was defined as “an anatomic or functional abnormality or loss that results
from the compensable injury and is reasonably presumed to be permanent.” 77 P.S. § 511.2(8)(i).
       20
          “Impairment rating” was defined as “the percentage of permanent impairment of the
whole body resulting from the compensable injury.” 77 P.S. § 511.2(8)(ii).


                                               22
Section 306(a.2)(3), “the amount of compensation shall not be affected as a result of
a change in disability status and shall remain the same.” 77 P.S. § 511.2(3). In other
words, a claimant considered partially disabled under Section 306(a.2) may still
receive benefits at the total disability rate, which is sixty-six and two-thirds per
centum of the injured worker’s wages. Section 306(a)(1) of the WC Act, 77 P.S.
§ 511(1). The practical effect of a change in status from total to partial disability is
to limit a claimant to 500 weeks of partial disability compensation. 77 P.S. § 512(1);
Diehl v. Workers’ Comp. Appeal Bd. (I.A. Constr.), 972 A.2d 100, 104-05 (Pa.
Cmwlth. 2009).
      In Diehl, we discussed the distinction between a change in disability status
under Section 306(b)(2), based upon a change in earning power, and one under
Section 306(a.2), based upon an impairment rating. We explained that “IRE
remedies are separate from remedies involving actual ability to work.” Diehl, 972
A.2d at 108; see also Sign Innovation v. Workers’ Comp. Appeal Bd. (Ayers), 937
A.2d 623, 627-28 (Pa. Cmwlth. 2007); Weismantle v. Workers’ Comp. Appeal Bd.
(Lucent Tech.), 926 A.2d 1236, 1240 (Pa. Cmwlth. 2007). This Court held that
earning power is not a factor when seeking a change in disability status under
Section 306(a.2). Diehl, 972 A.2d at 106. It explained that “requir[ing] proof both
of a claimant’s level of impairment and a claimant’s earning power would render the
IRE provisions meaningless” and that “there would be no reason for the employer
ever to obtain an IRE.” Id. at 108.
      In summary, until the IRE provisions were struck down as unconstitutional, a
claimant’s disability status could be modified from total to partial disability in one
of two ways: based upon evidence of earning power under Section 306(b)(2) or
based upon a claimant’s impairment rating, without regard to his or her earning



                                          23
power, under Section 306(a.2). Because earning power did not play any role in
Claimant’s change from total to partial disability here, we discern no reason why the
term “disability” in Section 413(a) governing reinstatement from partial to total
disability in this case should be restricted to its traditional definition of earning
power. See, e.g., Ford Motor/Visteon Sys. v. Workers’ Comp. Appeal Bd. (Gerlach),
970 A.2d 517, 522-23 (Pa. Cmwlth. 2009) (reading Sections 306(a.2), 306(b), and
413(a) of the WC Act together and holding that an employer seeking modification
to partial disability based upon an IRE is entitled to modification as of the date of
the IRE). As the above case law demonstrates, disability can also be a status, where
the claimant is either totally or partially disabled, as here, based upon impairment
rating not earning power.
       Next, we must consider whether Claimant’s disability status “increased,
decreased, recurred, or has temporarily or finally ceased.” 77 P.S. § 772. Under the
facts here, Claimant may establish entitlement to reinstatement if her disability status
“recurred.” “Recur” is defined, in relevant part, as “to return to a place or status”
or “to happen, take, place, or appear again.” Webster’s Third New Int’l Dictionary
1900 (2002) (emphasis added). The legal effect of Protz I and subsequently Protz II
was to render Claimant once again eligible for total disability benefits.21 The
impediment that rendered her partially disabled under the WC Act, i.e., the
impairment rating, is no longer a valid means of changing a claimant’s status.
There was no longer a legal basis for Claimant’s disability status to remain partial
because the IRE upon which the change in status was predicated was found, as a



       21
            As discussed more fully below, the Protz decisions did not automatically revert
Claimant’s status back to totally disabled. Instead, Claimant must still show she is totally disabled
after all this time to be entitled to reinstatement.


                                                24
matter of law, unconstitutional and invalid. This change in the law was a basis upon
which Claimant could seek reinstatement.
      The current scenario is more akin to a claimant seeking reinstatement of
benefits currently under suspension than one seeking reinstatement of benefits
following termination because there is no allegation that Claimant’s disability has
ceased. The Supreme Court previously explained that suspension status “actually
acknowledges a continuing medical injury.” Latta v. Workmen’s Comp. Appeal Bd.
(Latrobe Die Casting Co.), 642 A.2d 1083, 1085 (Pa. 1994) (emphasis in original).
In situations where benefits were suspended, a claimant is only required to
demonstrate that the reasons for the suspension no longer exist. Pieper v. Ametek-
Thermox Instruments Div., 584 A.2d 301, 304 (Pa. 1990). A claimant is not required
to demonstrate with medical evidence that the work-related injury giving rise to the
benefits continues; a claimant’s testimony to that effect satisfies the claimant’s
burden of proof. Latta, 642 A.2d at 1085. Our Supreme Court has held that “once
a claimant testifies that his prior work-related injury continues, the burden shifts to
his employer to prove the contrary. Where an employer fails to present evidence to
the contrary, the claimant’s testimony, if believed by the [WCJ], is sufficient to
support reinstatement.” Id. The Supreme Court explained that because the claimant
already established a work-related injury, it would be improper to require a claimant
to establish it again. Id. “In such suspension situations, the causal connection
between the original work-related injury and the disability which gave rise to
compensation is presumed.” Pieper, 584 A.2d at 305 (emphasis in original).
      We also recognize that, generally, in order to be entitled to reinstatement to
total disability after expiration of the 500 weeks of partial disability, a claimant must
show (1) a loss of earning capacity, and (2) a worsening of the claimant’s medical



                                           25
condition.22 Stanek v. Worker’s Comp. Appeal Bd. (Greenwich Collieries), 756 A.2d
661, 668 (Pa. 2000); Kiser v. Workers’ Comp. Appeal Bd. (Weleski Transfer, Inc.),
809 A.2d 1088, 1092-93 (Pa. Cmwlth. 2002). However, Stanek is distinguishable in
that the claimant there did not have his status changed based upon an impairment
rating; rather, the claimant there received partial disability benefits based upon a
change in his earning power. In Stanek, after the claimant exhausted his 500 weeks
of partial disability, he sought reinstatement on the basis that his physical condition
had worsened, rendering him totally disabled. Thus, the standard enunciated by the
Supreme Court, requiring evidence of a loss of earning power and a worsening of
the claimant’s physical condition, under these circumstances makes sense.
However, for claimants whose change in disability status was never based on either
a change in earning power or a change in physical condition, but solely on an
impairment rating, it does not. It makes little sense to require a claimant seeking
reinstatement based upon an unconstitutional IRE to show a change in earning power
when the employer was not required to show the same when it had the claimant’s
disability status modified from total to partial. Furthermore, in some cases, a
claimant will not be able show a change in earning power because his or her earning
capacity remains at zero. Moreover, because the change in disability status was not
linked to any change in physical condition, but only to an impairment rating, it does
not make sense to require claimants to show their physical condition worsened.
       Here, Claimant testified she was unable to work at all since the date of her
surgery in 2002. (WCJ Decision, FOF ¶ 6d, Apr. 19, 2016, R.R. at 39a.) Employer

       22
           A claimant seeking to reinstate total disability benefits prior to exhaustion of the 500-
week period of partial disability benefits has a different burden of proof. That claimant must show
that his or her earning power is again being adversely affected by his or her work injury; there is
no requirement to show a worsening of one’s physical condition. Sladisky v. Workers’ Comp.
Appeal Bd. (Allegheny Ludlum Corp.), 44 A.3d 98, 102 (Pa. Cmwlth. 2012).


                                                26
did not present any evidence to the contrary. Therefore, if Claimant’s testimony is
credited, this satisfies her burden. Latta, 642 A.2d at 1085. Here, however, the WCJ
did not find it necessary to make any findings as to Claimant’s credibility because
of the WCJ’s determination that Protz I was inapplicable. (WCJ Decision, FOF ¶ 10,
Apr. 19, 2016, R.R. at 40a.) Therefore, we vacate the Board’s Order and remand
with direction to further remand to the WCJ to make factual findings related to
whether Claimant credibly testified that she is totally disabled. If her testimony is
credited, and because Employer presented no evidence to the contrary, Latta, 642
A.2d at 1085, Claimant is entitled to reinstatement as of the date she filed her
Petition.
       The approach set forth herein is consistent with the overall remedial purpose
and humanitarian objective of the WC Act, which is intended to benefit the injured
worker. Griffiths v. Workers’ Comp. Appeal Bd. (Seven Stars Farm, Inc.), 943 A.2d
242, 255 (Pa. 2008). Otherwise, it would appear that a claimant whose status was
changed to the 500-week, limited period of partial disability based upon an
unconstitutional IRE would have no other mechanism of reinstating his or her right
to total disability benefits.23 Furthermore, because a claimant either still receiving

       23
          Other mechanisms of challenging a change in status based upon an IRE were struck
down by Protz II. For instance, the Board relied upon the 60-day limit found in Section
306(a.2)(2), which this Court also cited in Riley for the proposition that a claimant must challenge
the IRE within 60 days. However, the Supreme Court in Protz II struck Section 306(a.2) of the
WC Act as unconstitutional in its entirety after concluding the offending language in the IRE
provisions could not be severed from the rest of the IRE provisions. Thus, after Protz II, Section
306(a.2)(2), which contains the 60-day time period for challenging the IRE, is no longer
enforceable. Because this Court did not strike the entirety of Section 306(a.2) in Protz I, and Riley
was decided in the period between this Court’s decision in Protz I and the Supreme Court’s
decision in Protz II, at the time Riley was decided, the 60-day time period in Section 306(a.2)(2)
appeared to be good law. However, after Protz II, that is not the case. Thus, any reliance on Riley
and/or Section 306(a.2)(2) is error. For similar reasons, the Board dissent’s reliance on the 500-



                                                27
or recently receiving benefits may seek modification, so long as the petition is filed
within three years of the date of the most recent payment of compensation, it does
not upset an employer’s expectation of finality. The WC Act clearly contemplates
future modification as it provides a mechanism for claimants to seek such
modification.
       Both parties painted this case as an issue involving the retroactivity of Protz II.
Given the facts of this case, however, the issue is not purely a question of
retroactivity. We previously explained:

       A retroactive law has been defined as one which relates back to and
       gives a previous transaction a legal effect different from that which it
       had under the law in effect when it transpired. . . . A law is given
       retroactive effect when it is used to impose new legal burdens on a
       past transaction or occurrence.

Dep’t of Labor and Indus., Bureau of Employment Sec. v. Pa. Eng’g Corp., 421 A.2d
521, 523 (Pa. Cmwlth. 1980) (emphasis added; internal citations omitted); see also
Passarello v. Grumbine, 87 A.3d 285, 307 (Pa. 2014) (requiring a decision to
announce a new rule of law before it can be given retroactive effect); Commonwealth
v. Hughes, 865 A.2d 761, 780 (Pa. 2004) (explaining a court decision is considered
“new” for purposes of retroactivity if it imposes a new obligation on the parties).
Our decision today does not impose any new legal consequences based upon a past
transaction. Simply because Protz II is being applied to a case that arose from a
work injury and a change in disability status that predates it does not mean it operates
retroactively. Warren v. Folk, 886 A.2d 305, 308 (Pa. Super. 2005). It would be
retroactive if it related back and gave a prior transaction a legal effect different from


week period in Section 306(a.2)(4) is misplaced. The value of our other decisions rendered pre-
Protz II, such as Gillespie, is also diminished to the extent they rely on any part of Section 306(a.2).


                                                  28
that which it had under the law in effect at the time. Id. This decision does not alter
Claimant’s past status. Rather, it gives effect to the Claimant’s status as it existed
at the time she filed her reinstatement petition, which was filed within the statutory
timeframe for filing such petitions.


III.   Conclusion
       Because Claimant filed her Petition within three years from the date of her
last payment of compensation as permitted by Section 413(a) of the WC Act, she
was entitled, as a matter of law, to seek modification of her disability status based
upon the Protz decisions, which found the IRE provision unconstitutional. Allowing
Claimant to seek modification under these circumstances does not prejudice
employers or insurers by upsetting their expectation of finality because such
determinations are not yet truly “final” until three years have passed since the date
of last payment.24 However, in order to be entitled to reinstatement, a claimant must
testify that her work-related injury continues, and the WCJ must credit that
testimony over any evidence that an employer presents to the contrary. Here,
Claimant testified she continues to be disabled by her work injury, but the WCJ did
not make any credibility determinations, instead disposing of the case on the ground
Protz I did not apply. Accordingly, we vacate the Board’s Order and remand for
further proceedings consistent with this opinion.




                                           _____________________________________
                                           RENÉE COHN JUBELIRER, Judge

       24
         We do not resolve whether Protz II would apply to cases in which the last payment made
was outside the 3-year period in Section 413(a).


                                              29
Judge Covey dissents.




                        30
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Paulette Whitfield,                        :
                           Petitioner      :
                                           :
                      v.                   :   No. 608 C.D. 2017
                                           :
Workers’ Compensation Appeal               :
Board (Tenet Health System                 :
Hahnemann LLC),                            :
                        Respondent         :


                                        ORDER


      NOW, June 6, 2018, the Order of the Workers’ Compensation Appeal Board
dated May 10, 2017, is VACATED, and this matter is REMANDED for further
proceedings consistent with the foregoing opinion.
      Jurisdiction relinquished.




                                         _____________________________________
                                         RENÉE COHN JUBELIRER, Judge
