Chartwell Law Attorneys Argue Against The Retroactive Application of the Protz Opinion

Barak A. Kassutto

  Barak A. Kassutto concentrates his practice assisting employers and insurance carriers in litigating and defending all matters relating to workers’ compensation. On behalf of his clients, Mr. Kassutto defends claim and reinstatement petitions as well as pursuing termination, earning power based modifications and suspension petitions as well as supersedeas reimbursement applications. He also assists clients in mediations and negotiations, fee review, utilization review, and appeal work. Mr. Kassutto is an active member...

Stephen J. Fireoved

STEPHEN J. FIREOVED is a 1976 graduate of Gettysburg College and 1979 graduate of Temple Law School. After graduating law school, he spent three years on active duty with the Navy’s Judge Advocate General’s Corps and litigated over 150 criminal trials at various duty stations throughout the Nation. After leaving active duty, he initiated his private law practice with large firms in Wilkes Barre, PA and Ft. Washington, PA where...

Pennsylvania's workers' compensation system is still reeling from Supreme Court of Pennsylvania's Opinion in Protz v. Derry which held the IRE provisions of the Act are unconstitutional and unenforceable. Claimants' attorneys have now begun filing reinstatement petitions based upon the Protz Opinion.  Consequently, employers and insurers must now struggle with questions about the retroactive application of the Opinion to cases on appeal, cases within the 500 weeks post-IRE, and even post-IRE cases where claimants are no longer receiving benefits.  

On December 6, 2017, Chartwell Law attorneys Steve Fireoved and Barak Kassutto appeared for oral argument before the Commonwealth Court of Pennsylvania to argue against the retroactive application of the Protz Opinion. The case before the court concerned a reinstatement petition filed by a claimant which was pending on appeal when the Supreme Court of Pennsylvania issued the Protz Opinion. The Commonwealth Court requested Chartwell Law’ s attorneys to submit supplemental briefs addressing the retroactive application of the Protz Opinion and the oral argument was held before the Commonwealth Court en banc, before a full panel of Judges.

Chartwell Law attorneys argued strongly against retroactive application because claimant had waived the issue, failed to "raise and preserve it" during a prior appeal, it was barred by the doctrine of administrative finality, and because retroactive application would violate the Pennsylvania constitutional right to due course of law. The Court received these arguments well and seemed to focus on the issue of waiver.

Chartwell Law is active in the litigation surrounding the Protz Opinion and is fully engaged in the ongoing dispute concerning its potential retroactive application.  We will keep our clients updated on these matters as the cases progress.  We're happy to field any questions you may have about this issue and how these cases should be handled at trial and on appeal.