A claimant who raises a Protz challenge to a pre-Protz IRE on the basis that the IRE was unconstitutional is entitled to a reinstatement of temporary total disability benefits as of the date the reinstatement petition is filed and not the date of the IRE.

Following the claimant’s January 2005 work injury, she underwent an Impairment Rating Evaluation in December 2013. After receiving a 36% whole body impairment, the employer filed a modification petition, which was granted by the judge. The claimant did not appeal the decision.

Later, in October 2015, after the Commonwealth Court’s decision in Protz v. WCAB (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), affirmed in part and reversed in part, 861 A.3d 827 (Pa. 2017) (Protz II), the claimant filed a reinstatement petition, seeking to nullify her IRE on the basis it was unconstitutional. Before litigation of this petition was concluded, the Supreme Court issued its opinion in Protz II, finding the IRE provisions of § 306 (a.2) of the Act unconstitutional and striking the section from the Act.

The judge granted the claimant’s reinstatement petition and determined the employer was not entitled to a credit for any weeks of partial disability paid. The employer appealed to the Appeal Board. Although the Board affirmed, they held that the reinstatement was effective as of the date the claimant filed her petition in 2015, rather than the date of her conversion from total to partial disability benefits. The Board further vacated the judge’s determination that the employer was not entitled to a credit, stating that the credit is triggered only when the IRE process is initiated under § 306 (a.3)(1) of Act 111.

The claimant appealed to the Commonwealth Court, and the court affirmed the Board. The court noted that the claimant previously had her benefits modified from total to partial disability in 2013, did not appeal the judge’s decision modifying her benefits and sought a reinstatement of benefits via petition after Protz I in October 2015. According to the court, the claimant was not litigating the underlying IRE when Protz II, or Protz I, was issued.

Consequently, the court found that the claimant was entitled to a reinstatement as of the date of her petition, not the effective date of the change in her disability status from total to partial. The court further rejected the claimant’s argument that the Board’s vacating of the judge’s decision as to the employer’s credit was the equivalent of granting a credit. The court found that the Board did not grant a credit, but merely stated that the credit provision is triggered only when the IRE process under § 306 (a.3) was initiated.

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