Howard Dunetz v. Charles H. Sacks, D.M.D., P.C. (WCAB); No. 302 C.D. 2022; filed Oct. 26, 2023; Judge Cohn Jubelirer

Temporary total disability benefits were properly reinstated as of the date claimant filed a Protz constitutional challenge, and exceptional circumstances did not exist to allow for a reinstatement as of the date of the original IRE.

The claimant sustained a work injury in May 2007. Subsequently, the status of his benefits was changed from total to partial based on a December 2, 2010, IRE that found he had an 8% whole-person impairment. No contest was raised to the notice of change, or otherwise challenged. In June 2020, the claimant filed a reinstatement petition, challenging the 2010 modification as unconstitutional based on Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz). The claimant requested reinstatement to total disability as of the date of the original IRE. It was stipulated that the claimant was paid 500 weeks of partial disability benefits through July 2, 2020, at which time indemnity benefits ceased. The employer filed a modification petition based on a December 15, 2020, IRE which found a 17% whole-body impairment rating. 

The workers’ compensation judge granted the reinstatement petition, but reinstated benefits as of the date the claimant filed the reinstatement petition. The judge found that the claimant was entitled to temporary total disability benefits through December 15, 2020, the date of the second IRE, and gave the employer a credit for the weeks of partial disability benefits previously paid to the claimant. Because the claimant had already received 500 weeks of partial disability benefits, the judge found that benefits were exhausted as of December 15, 2020. 

The claimant appealed to the Appeal Board, which affirmed. 

The claimant then appealed to the Commonwealth Court, arguing that pursuant to Protz, an equitable balancing test should have been performed to reinstate benefits as of the date of the initial IRE. Additionally, the claimant argued that the retroactive application of Act 111, allowing a credit for partial benefits previously paid pursuant to an unconstitutional and void IRE, was itself unconstitutional, interfered with claimant’s vested rights and violated due process rights.

The court rejected the claimant’s argument that the Supreme Court sanctioned an “equitable balancing” test to be used in “extraordinary cases” relative to the retroactive application of Protz, even in cases where no direct appeal was pending at the time the Protz opinion was filed. The Superior Court noted in Dana Holding Corporation v. WCAB (Smuck), 232 A.3rd 629 (Pa. 2020), that the general rule in Pennsylvania would be that the court’s holding that a statute is unconstitutional will generally be applied to cases pending on direct appeal in which the constitutional challenge has been raised and preserved. The Dana Holding court went on to state that it could not exclude the possibility of an equitable balancing in extraordinary cases, particularly since no party in the Dana Holding appeal had advocated any such position.

The Commonwealth Court rejected the claimant’s position that his case constitutes the type of extraordinary circumstances justifying the retroactive application of Protz and a reinstatement of total disability status as of the date of the original IRE. According to the court, the Supreme Court’s statement in Dana Holding was merely a recognition that an equitable balancing test was a possibility, not a certitude. The court was unconvinced that the claimant’s asserted interests (severity of the injury, inability to return to work for more than 500 weeks, and financial need) established an extraordinary case to which such an equitable balancing test would apply. The court additionally rejected the claimant’s argument that Act 111 could not be applied retroactively to claimants who began receiving benefits prior to its enactment. The court noted that they and the Supreme Court have repeatedly rejected the same argument and was unpersuaded that reconsideration would be warranted. Therefore, court affirmed the employer’s credit for all past partial disability. 


What’s Hot in Workers’ Comp, Vol. 27, No. 11, November 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact