Supreme Court did not intend Protz II to be given full retroactive effect or to nullify the statute of repose in § 413(a).

The claimant sustained a work injury on November 9, 2001. In 2003, she was awarded total disability benefits. On April 5, 2004, the employer requested an impairment rating evaluation. On May 5, 2004, an IRE was performed and a whole-body impairment of 36% was found. The claimant’s disability status was automatically adjusted from total to partial as of March 26, 2004. The claimant’s 500 weeks of partial disability benefits was exhausted on December 3, 2013, and she received her last payment of compensation. On October 17, 2017, she filed a petition to reinstate benefits on the basis that the Pennsylvania Supreme Court declared § 306(a.2) of the Act unconstitutional in Protz v. WCAB (Derry Area School District), 161 A.3d 827 (Pa. 2017)(Protz II).

The workers’ compensation judge denied the reinstatement petition, concluding that under § 413(a) of the Act, a reinstatement petition must be filed within three years of the date of the most recent compensation payment and the claimant filed her petition almost four years from her last payment. The judge also concluded that Protz II only affected those claimants with a case in active litigation, which the claimant did not. The Appeal Board affirmed the workers’ compensation judge.

The claimant appealed to the Commonwealth Court and argued that Protz II rendered the IRE provisions as void ab initio; thus, she was entitled to a reinstatement of benefits. The court, though, found that the claimant’s statutory right to total disability compensation had been extinguished at the point in time that she filed her reinstatement petition. According to the court, allowing the claimant to resuscitate her right to disability compensation violated § 413(a). Although the court acknowledged that Protz II may have voided § 306 (a.2) ab initio, they did not think the Pennsylvania Supreme Court intended Protz II to be given full retroactive effect or to nullify the statute of repose in § 413(a).

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