POST-PROTZ; THE UNCONSTITUTIONAL PARADIGM
By Kevin L. Connors, Esquire
In the seemingly predictable universe of Pennsylvania Workers’ Compensation practice and procedure, June 20, 2017 would have been just like any other day with the routine reporting of allegedly work-related injuries, Insureds and Administrators initiating investigations that would invariably lead to claims Decisions that would bind their Employers to either accept, deny or continue to investigate reported injury claims, with Workers’ Compensation Judges and Attorney Practitioners throughout the Commonwealth attending compensation Hearings and depositions in the course of seeking to prove that an injury did or did not occur, was or was not disabling, warranted the awarding of or denying of a compensation claim, or, more simply, involved the respective Parties coming to agreed-upon terms in the course of resolving workers’ compensation claims under Compromise and Release Agreements, otherwise a normal day for Pennsylvania compensation stakeholders and practitioners, until the Pennsylvania Supreme Court posted its long-awaited Decision in Protz v. WCAB (Derry School District), 133 A.3d 733 (Pa. 2017) a ruling of tsunamic ramifications, eviscerating, as unconstitutional, Section 306(a.2)(1), of the Pennsylvania Workers’ Compensation Act, a Section that had allowed Employers, Insureds and Third-Party Administrators to ask injured Employees who had received 104 weeks of temporary total disability benefits to undergo an Impairment Rating Examination in reliance upon the AMA’s Guide to the Evaluation of Impairment, utilizing the Fourth Edition, which was the controlling Edition when Section 306(a.2)(1) was enacted by the Pennsylvania General Assembly in 1996.
We certainly hope that you took a few deep breaths as you tried to follow the syntactical gyrations and convolutions in the above sentence/paragraph, bespeaking a tendency towards grammatical self-indulgence.
Forgiving grammatical incoherence, all of us, whether Claimant or defense-oriented are struggling to come to grips with what Protz actually means in the day-to-day practice of Pennsylvania Workers’ Compensation procedure.
First, without belaboring a formal analysis of the Protz Decision in and of itself, it seems pretty clear on its face that IREs have suffered the outrageous slings and arrows of this misfortune, and now are simply not available to Employers, Insurers, or Administrators as a backstop against a principle inherently embedded in the Pennsylvania Workers’ Compensation Act, being that there is no statutory end point, or termination, of temporary total disability benefits, once accepted or awarded, in the absence of one of the following occurring:
- The Claimant dies, and compensation benefits terminate by operation of both death and loss;
- The Claimant voluntarily returns to work in their pre-injury capacities, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;
- The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;
- The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
- The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
- The Claimant is deported by virtue of not being able to prove legal immigration status;
- The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,
- The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.
So what, if anything, did IREs extend to Employers, Insurers, and Administrators in the context of managing what might otherwise be a lifetime claim of entitlement to temporary total disability benefits, fully recognizing that few practitioners, in whatever context, have been witness to a 25 year old laborer, with a maximum compensation benefit rate, receiving lifetime temporary total disability benefits for a lumbar sprain or strain, let alone even for a lumbar surgical injury as the injured Employee then never received any cost of living increases in his/her’s compensation benefit rate, which in the hypothetical of a lifetime of receiving weekly temporary total disability benefits, can reap what some might call a significant income insult, but that risk, of an injured Employee living in a lifetime compensation vacuum, is the unspoken risk that drives insurance claims Underwriters and Representatives into Shakespearian fervor, as the potential risk elongates the balance sheet of a claim reserve that is both a prayer and a curse, as well as requiring that the shared risk of never-ending benefits be captured in an underwriting pool of necessarily-increasing premiums, to prevent the entire system from buckling under the weight of ill-defined exposures.
Yes, a year from now, the cost of Protz will be quantified by any number of actuarial realities.
Those actuarial realties will inseminate costs that all stakeholders will bear, to account for the following:
- Necessarily higher underwriting premiums charged to Employers;
- Spiraling reserves as a protection from unbridled exposures; and,
- Potential loss of enthusiasm for Employers to choose the Commonwealth as a place to do business, given what most businesses, in comparison to other jurisdictions employing some form of a permanency model for compensation benefits, regard as a high risk jurisdiction, not particularly worried about whether businesses are shifting expenditures from exposures and expanded employment opportunities, to risk awareness and newly-naked exposures.
So what does any of this mean and how has Protz changed Pennsylvania Workers’ Compensation practice and procedure?
Pushing aside the robo-calls being made by Claimant firms seeking to reopen workers’ compensation claims under Reinstatement, Review, and Penalty Petitions, there are/were very few workers’ compensation claims, although no one appears to have any clear statistics, where Claimants with IREs with a less than 50% impairment actually ended up receiving a total of 604 weeks of temporary total disability benefits, as Carriers and Employers invariably settled, if not all of those claims, a very high percentage of those claims, effectively seeking what a Claimant Attorney might perceive to be a statutory discount under Section 306(a.2)(1) of the Act.
Are there current challenges being asserted under Claimant Petitions filed in reliance upon Protz?
According to the Bureau, in the two months post-Protz, approximately 2,000 Petitions have been filed, seeking some form of statutory relief from a conversion of temporary total disability benefits to temporary partial disability benefits that was based in reliance upon an IRE that established an Impairment Rating of less than 50% of the whole person.
Presumably, these Petitions seek relief from any conversion of temporary total disability to temporary partial disability that was based upon an IRE, and one would have to presume that a Workers’ Compensation Judge will reverse those conversions, whether automatic or Petition-based, absent guidance from either the Pennsylvania Supreme Court or the Commonwealth Court, as to the retroactive application of Protz’ edict as to the unconstitutionality of IRE legislation under Act 57, the 1996 reforms to the Pennsylvania Workers’ Compensation Act, as an unconstitutional delegation of legislative authority from the Pennsylvania General Assembly to a Third Party, herein the AMA.
As predicted, there is actually a very recent Decision from the Pennsylvania Commonwealth Court, dated August 16, 2017, in Thompson v. WCAB (Exelon Corporation), which resulted in the Commonwealth Court reversing prior Decisions by the Appeal Board and the WCJ, both of which had denied Claimant’s Review Petition, and Appeal therefrom, after the WCJ had modified the Claimant’s compensation benefits in reliance upon an IRE from 2005.
In so holding, the Commonwealth Court ruled “Thus, we are compelled to reverse the Board’s affirmance of the WCJ’s modification of the Claimant’s benefits, because under the Supreme Court’s recent Decision in Protz II, Section 306(a.2)(1) is stricken and no other provision of the Act allows for modification of benefits based on an IRE.”
Relying upon the implications of Protz, and the Commonwealth Court’s interpretation thereof in Thompson, there is a fairly high probability that Workers’ Compensation Judges will strike Notices of Change filed by Carriers on behalf of their Employers to convert temporary total disability to temporary partial disability in reliance upon IREs with Impairment Ratings of less than 50%, the same being true at the Appeal Board and Commonwealth Court levels, such that Pennsylvania Carriers will have to rely on more traditional investigative and procedural mechanisms, to include:
- Activity Checks;
- Verification Forms;
- Docket Searches;
- Vocational Intervention; and,
- Resolution strategies that would continue to attempt to settle workers’ compensation claims at traditional settlement value models, basing the analysis on the presumption that very few are incapable of doing any work, and that a medical release to perform restricted-duty work is the necessary seed for vocational intervention, a tool that might well find greater acceptance before Workers’ Compensation Judges, knowing that IREs are no longer a viable mechanism for claim resolution.
So, with Protz eviscerating IREs, under the PWCA, what are the procedural defenses to Claimants filing Reinstatement or Review Petitions, to re-open their workers’ compensation claims, in the event that their claims were suspended/modified in reliance upon an IRE?
First, if the claim, whether subject to an IRE or not, was settled under a Compromise and Release Agreement, any attempt to re-open the claim, to seek additional workers’ compensation benefits should be subject to the following defenses:
- Compromise and Release;
- Release and Satisfaction;
- Waiver of Appeal;
- Res judicata; and,
- Collateral estoppel.
In short, claims settled under a Compromise and Release Agreement whether settling the claim in reliance upon an IRE or not, should not be vulnerable to a Claimant-filed Petition to seek additional workers’ compensation benefits, particularly with there having been Claimant testimony before a Workers’ Compensation Judge, that the Claimant understood the “full legal significance” of entering into the Compromise and Release Agreement, and, specifically requesting that the Workers’ Compensation Judge approve the Compromise and Release Agreement, after fairly extensive cross-examination by the Workers’ Compensation Judge, that the Claimant understands/understood that he/she cannot come back for additional workers’ compensation benefits based upon the finality of the Compromise and Release Agreement.
Less certain are claims where the IRE established that the Impairment Rating was less than 50%, and the Employer filed a Notice of Change, converting the Claimant’s compensation benefits from temporary total to temporary partial disability benefits, and no constitutional challenge to that conversion was ever raised by the Claimant.
Whether the constitutionality of the IRE process was challenged by the Claimant or not, it is extremely likely that Pennsylvania Workers’ Compensation Judges will find that Protz essentially removed the IRE process from the PWCA, and that a formal Claimant challenge as to its constitutionality did not have to be filed, when benefits were being converted.
For those types of claims, there is a fairly high degree of probability, that the claims will be re-opened, with compensation benefits being reinstated.
Another type of claim will involve claims where the Employer/Insurer did not secure an automatic conversion of compensation benefits under temporary total to temporary partial disability benefits in reliance upon an IRE, but sought to convert the benefits in reliance upon a Modification Petition, with a Workers’ Compensation Judge granting the Petition, in the course of which the Claimant did not raise a constitutional challenge to the IRE process, and also did not then appeal the WCJ’s granting of the Modification Petition to the Appeal Board, such that the WCJ’s Decision became final and non-appealable.
It is believed that there are very few of these types of cases that have arisen since the enactment of Act 57 in 1996, and/or that claims like this have been appealed by Claimants, with ultimate resolution, in some fashion, before the Appeal Board or the Commonwealth Court.
Presumably, if the ultimate modification of the Claimant’s compensation benefits in reliance upon an IRE survived appellate challenges by the Claimant, an open question may exist as to whether that workers’ compensation claim can be re-opened, subject, of course, to any potential Statute of Limitations issues that might exist, as a defense to an attempt to reinstate or review compensation benefits.
Two cases litigated before the Commonwealth Court, in Riley v. WCAB (Commonwealth of Pennsylvania), and Gillespie v. WCAB (Aker Philadelphia Ship Yard) that stand for the proposition that if an IRE has been litigated to Decision and not appealed, that the injured Worker has then waived his/her right to challenge the IRE.
In Gillespie, the Commonwealth Court held that “a declaration that provision of a Statute’s unconstitutional does not void every Decision ever made in accordance therewith; only Parties still engaged in active litigation may take advantage of this change.” In both Riley and Gillespie, the Commonwealth Court had held that the Claimants’ challenges to the IRE Determinations were untimely pursuant to Section A306(a.2)(2)(4).
In light of Protz, will Riley and Gillespie survive as support for the waiver of a constitutional challenge, or will Protz undermine via both Decisions?
Obviously, we anticipate additional litigation to arise over the retroactive application of Protz to claims that were otherwise resolved in prior litigation.
With this background, what do we foresee in the future in terms of any attempt to revise a permanency standard under the PWCA?
Since the Protz Decision, it is our understanding that there are several industry organizations actively lobbying the Pennsylvania General Assembly for a statutory provision reinstating an IRE process that would survive constitutional challenges. It is believed that the Chamber of Commerce, Insurance Federation, Pennsylvania Self-Insurers Association, and other organizations are actively working to address this issue, as the Pennsylvania Compensation Ratings Bureau is already in the process of addressing ratings increases for job classifications that will result in premium increases across the board for Employers, and will also result in reserving increases for Insurance Carriers.
While the Claimant’s bar may hail this as a long-sought clean sweep of legislation that it characterized as a statutory anathema, the unforeseen consequence of higher premiums and higher reserves for Employers will be that doing business in Pennsylvania may now be less dynamic and beneficial, such that we will continue to witness a downward trend in newly-filed workers’ compensation Petitions will continue.
Rest assured that we will continue to monitor this issue, given that stakeholders and practitioners have been relying upon IREs as a statutory hedge against open liability for temporary total disability benefits under the PWCA.
The future is inevitably fast-approaching and likely to happen without the immediate probability of IREs being in our administrative forecast.
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We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout Pennsylvania. We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.
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