Susan Riley v. WCAB (Commonwealth of Pennsylvania); 675 C.D. 2019; filed Aug, 5, 2021; Judge Covey

An attempt to reopen a claim under Protz II is time barred under § 413(a) of the Act as the attempt was made more than three years from the last date benefit payments were received.

The claimant underwent an Impairment Rating Evaluation (IRE) on April 28, 2003. As the impairment rating was less than 50%, the claimant’s disability status was changed from total to partial pursuant to a notice of change of disability status filed on May 5, 2003. On August 28, 2012, the claimant filed a review petition, alleging that the notice of change was invalid as she had not reached maximum medical improvement. The petition was denied by the Workers’ Compensation Judge, and the Workers’ Compensation Appeal Board affirmed. However, the Appeal Board noted that on October 15, 2015, the claimant filed a motion to vacate the IRE based on unconstitutionality under Protz v. WCAB (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I). The motion was denied, and the Commonwealth Court affirmed its denial. 

Thereafter, the Pennsylvania Supreme Court decided Protz II (Protz v. WCAB) (Derry Area School District), 161 A.3d A27 (Pa. 2017), and the claimant filed petitions seeking reinstatement as of the date of her April 2003 IRE. The employer maintained that the petitions were time barred since they were filed more than three years after the claimant’s last benefit payment, which was on November 25, 2012. The judge, however, found that the claimant timely challenged her IRE when she filed her motion to vacate on October 15, 2015. Therefore, he reinstated the claimant’s temporary total disability benefits as of the date of the IRE. On appeal, the Appeal Board reversed. 

The claimant appealed to the Commonwealth Court, arguing that under equitable principles, as recognized by the Supreme Court in their decision of Dana Holding Corporation v. WCAB (Smuck), 232 A.3d 629 (Pa. 2020), she would be entitled to a reinstatement of temporary total disability benefits. The court specifically rejected this argument and affirmed the Board, citing § 413(a) of the Act, a statute of repose that requires a claimant whose benefits have been suspended to seek reinstatement within three years of the last payment of benefits or the maximum 500 weeks allowed for partial disability, whichever is later. This was not an extraordinary case that would permit circumventing § 413 (a) of the Act.

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