The Whitfield Case was decided June 13th, 2018 by the Commonwealth Court, who confirmed the application of Protz retroactively. The Court vacated the WCAB’s order affirming the WCJ’s decision denying claimant’s reinstatement petition. The issue before the Court was whether claimant is entitled to the benefit of Protz II, when her disability status had been modified in 2008 and she had not challenged the constitutionality of the IRE for more than 7 years after the modification. Claimants have to file a reinstatement within 3 years after the date of the most recent workers compensation payment, which was done here. However, the Court remanded this case as there was no underlying evidence that claimant continues to be totally disabled. Some things for the Defense bar to be aware of with these types of cases is whether there was underlying evidence that claimant continued to be disabled. Also, you still can examine claimant’s earning power for a modification of benefits. In this case, the claimant did not have to show a change or worsening in her physical condition, as her benefits were solely modified based on the IRE.
If you have any questions or have a claim you wish to discuss regarding the IRE issues and the retroactive application, please do not hesitate to contact Wendy S. Smith, Esquire.