An en banc panel of the Pennsylvania Commonwealth Court reaffirmed the holding that “the ruling in Protz II was not intended to be given a fully retroactive effect without regard to the statute of repose in Section 413(a) of the Workers’ Compensation Act” (“the Act”). As the result of an Impairment Rating Evaluation (“IRE”) in 2003, Riley’s disability status changed from total to partial. Riley filed a Review Petition alleging that the change was invalid because she had not reached maximum medical improvement. The WCJ denied the Petition, and the Board affirmed. In October 2015, Riley filed a Motion to Vacate the IRE based on its unconstitutionality under Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), aff’d, Protz II. The Board denied the Motion to Vacate. On appeal, the Commonwealth Court affirmed the Board’s decision and held that Protz I did not apply because Riley did not appeal from the IRE within 60 days of the notice of change of disability status as required by Section 306(a.2)(2) of the Act. Riley did not seek permission to appeal. In June 2017, the Pennsylvania Supreme Court decided Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017) (Protz II). Within a month, Riley filed petitions alleging that her total disability benefits should be reinstated as of her 2003 IRE, based on Protz II. The WCJ found that Claimant challenged her IRE when she filed her Motion to Vacate in 2015. Because the Motion to Vacate was filed within three years of Riley’s last WC payment, the WCJ found the petitions were timely filed and reinstated Riley’s total disability benefits. The Board reversed the WCJ’s decision. The Commonwealth Court affirmed because Riley’s statutory right to total disability compensation had been extinguished when she filed her petitions. Therefore, to allow Riley to resuscitate her right to disability compensation would violate Section 413(a).
