Commonwealth Court holds that Act 111, which implemented the new IRE provisions under § 306(a.3) of the Act, was not a substantive change of the law and could not be applied retroactively, absent a clear legislative intent to do so.

In this case, at the time of Act 111’s enactment in October of 2018, the employer had pending an appeal of a judge’s decision that had reinstated the claimant to total disability status as of the date the IRE was performed under the former IRE provision, § 306(a.2) of the Act, which was found to be unconstitutional by the Commonwealth Court in Protz I and the Supreme Court in Protz II. While the employer’s appeal was pending with the Appeal Board, the Commonwealth Court issued its decision in Whitfield v. WCAB (Tenet Heath System Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018), holding that a claimant seeking reinstatement of total disability benefits is entitled to a reinstatement as of the date the petition was filed, provided the claimant demonstrates ongoing disability and the petition is filed within three years of the last payment of compensation.

Accordingly, citing Whitfield, the Board affirmed the judge’s decision, with a modification of the reinstatement date to September 8, 2017, the date the claimant filed the reinstatement petition. The Board did not address the effect of Act 111. The employer appealed to the Commonwealth Court, arguing that because the prior IRE conformed with the requirements of Act 111, it should stand and the claimant’s disability status should remain that of partially disabled.

The court rejected the employer’s argument and affirmed the Board. According to the court, the General Assembly did not expressly provide either that an IRE performed prior to the effective date of Act 111 had any effect under Act 111 or that Act 111, in its entirety, should be applied retroactively. The court further held that Act 111 constituted a substantive change in the law that could not be applied retroactively without clear legislative intent permitting retroactive applicability. According to the court, § 306 of Act 111 established a mechanism by which employers/insurers may receive credit for weeks of compensation previously paid relative to the 104 weeks of total disability paid that triggers the employer’s right to request an IRE for the claimant. The court said that retroactive application of Act 111 would have a direct, negative impact on the claimant’s disability status by giving effect to an IRE performed under a process that the Supreme Court in Protz II found constitutionally invalid. Thus, the change brought about by Act 111 was substantive, not procedural, and, thus, not retroactive.

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2020 Marshall Dennehey Warner Coleman & Goggin, 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 tamontemuro@mdwcg.com.}