John Hutchinson v. Annville Township (WCAB); 1617 C.D. 2021; filed Aug. 9, 2021; Judge Pasano Cannon

Reinstatement of benefits was retroactive to the date of a post-Protz II reinstatement petition filed in 2019 and not retroactive to the date of the 2009 IRE.

The claimant sustained a work injury in June of 2006. In June of 2009, he was seen for an Impairment Rating Evaluation (IRE) and given an impairment rating of less than 50%. Thereafter, the employer filed a petition to adjust the claimant from temporary total disability status to partial disability. In February of 2010, a Workers’ Compensation Judge granted the petition, and the claimant did not appeal.

While the Commonwealth’s decision in Protz I was on an appeal with the Pennsylvania Supreme Court, the claimant filed a reinstatement petition, seeking to change his disability status to total disability based on Protz I. The petition was granted with benefits retroactive to the date of the IRE. The employer appealed to the Appeal Board, which remanded to the judge for a determination on whether the claimant could show he was still disabled as a result of his work injury. 

While the remand was pending, the claimant underwent new IRE in January 2019 pursuant to Act 111, which resulted in an impairment rating of 3%. The employer filed a new modification petition that was consolidated with the reinstatement petition.

The Workers’ Compensation Judge granted the reinstatement petition, but ordered payment of benefits from the date the 2019 petition was filed and not retroactive to the 2009 IRE. The judge also granted the employer’s modification petition as of the date of the new IRE, January 2019. The Appeal Board affirmed the judge’s decisions. 

On appeal to the Commonwealth Court, the claimant argued that he was entitled to a reinstatement of benefits as of the date of the 2009 IRE, rather than the date his reinstatement petition was filed. This argument was rejected by the Commonwealth Court, and they affirmed the decision of the Board. The court noted that the claimant did not appeal the original modification of his disability status from total to partial disability. They further noted that they previously rejected an identical argument made in their prior decision of White v. WCAB (City of Philadelphia), 237 A.3d 1225 (Pa. Cmwlth. 2020).


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