Two cases decided by the Commonwealth Court in the last few months have solidified an injured worker’s right to seek a reinstatement of benefits under the Supreme Court’s decision in Protz v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d 827 (Pa. 2017), at least until the Legislature acts. While the manner in which the court arrived at the favorable result is a bit curious, the effect is the same.

In Timcho v. Workers’ Compensation Appeal Board (Philadelphia) __ A.3d___(Pa. Commw., No. 158 C.D. 2017, filed Aug. 17), the court was presented with the issue of whether a claimant can raise the constitutionality of an Impairment Rating Evaluation (IRE), as was done in Protz, for the first time in a collateral reinstatement petition after a prior petition challenging the IRE on other grounds has been fully litigated. The case represented the second time Edward J. Timcho had attempted to reinstate his benefits to temporary total following an unfavorable IRE. The first time around, the claimant argued only that the IRE doctor had not complied with the mandates of the Sixth Edition of the AMA Guides as it pertains to diagnostic testing. He did not challenge the constitutionality of Section 306(a.2) of the act in response to the employer’s petition to modify his benefits from temporary total to partial disability based on the IRE. The case made it all the way to the Commonwealth Court, where the claimant’s arguments were rejected and the partial disability status remained in place.