Continuing Implications of Robert Winchilla v. WCAB (Nexstar Broadcasting) and the Supreme Court's Denial of the Petition for Allowance of Appeal

For those of us in the Pennsylvania workers' compensation field, the Commonwealth Court's decision in Protz v. WCAB (Derry Area School District), brought on several newly filed constitutional challenges to Impairment Rating Evaluations (IRE) performed under the Sixth Edition of the Guides. In some cases, the Protz decision spurred litigation based on IREs performed years prior to the Commonwealth Court's ruling.
Protz held that the Fourth Edition of the Guides must be used in determining an employee's impairment rating pursuant to Section 306(a.2). Any other edition used, besides the fourth edition, constituted an unlawful delegation of legislative authority. Most IRE's are currently conducted under the Sixth Edition. What does this mean? If Protz is widespread, then are all IRE's that were not conducted under the Fourth Edition invalidated?
The Commonwealth's decision in Robert Winchilla v. WCAB (Nexstar Broadcasting) seems to provide an answer to this question. The Winchilla decision upheld a Sixth Edition IRE. The employee had not properly challenged the constitutionality of the IRE in prior proceedings. To properly challenge the constitutionality of the IRE, the employee must have brought a constitutional argument before the Workers' Compensation Judge (WCJ) at the time the IRE was conducted, and preserved the objection through the appeal process. If this argument was not made and properly preserved, then the employee has waived the right to bring a constitutional challenge under Winchilla.
Protz has been accepted by the Pennsylvania Supreme Court on appeal, so the full implications of this decision remain to be seen. However, the Pennsylvania Supreme Court recently denied the Petition for Allowance of Appeal in Winchilla. What this means is that Winchilla is now a reported decision. Defense counsel now has a strong argument that Winchilla shows the Commonwealth Court's intent for Protz to be limited to cases in which the constitutionality object was properly preserved from the beginning. Any challenge to an IRE performed under the Sixth Edition that was filed in response to the Protz decision does not constitute a proper preservation, and therefore, the IRE must be upheld by the Workers' Compensation Court. Any IRE that was performed under the Sixth Edition prior to the Protz decision where the employee did not properly preserve the constitutionality objection from the beginning stands. Any instances where the employee's benefits were modified to partial based on a prior IRE, is valid as long as the employee did not make a proper constitutional challenge.

Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create and attorney-client relationship.

For more information contact Carolyn Diehl at cdiehl@wglaw.com or 215.972.7925