            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yolanda White,                                 :
                              Petitioner       :
                                               :
                v.                             :   No. 1463 C.D. 2019
                                               :   Submitted: June 11, 2020
Workers’ Compensation Appeal                   :
Board (City of Philadelphia),                  :
                         Respondent            :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE ELLEN CEISLER, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION
BY JUDGE CROMPTON                                           FILED: August 17, 2020

               Yolanda White (Claimant) petitions for review from an order of the
Workers’ Compensation Appeal Board (Board) that affirmed in part (as amended)
and vacated in part an order of Workers’ Compensation Judge (WCJ) Scott Olin (the
WCJ) granting the reinstatement petition filed by Claimant against the City of
Philadelphia (Employer). Claimant asserts the Board erred by permitting Employer
to take a credit for partial disability benefits received where Claimant’s impairment
rating, determined under the now unconstitutional impairment rating evaluation
(IRE) provisions of the Workers’ Compensation Act (Act),1 was 36%, and the new




      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
Act 111 IRE provisions2 do not permit a change in disability status when a claimant’s
impairment rating is 35% or greater. Claimant further contends that the Board erred
by amending the effective date of the WCJ’s decision to reinstate her total disability
benefits to the date upon which she filed her reinstatement petition, i.e., October 7,
2015, rather than December 4, 2013, the date upon which her benefits were modified
from total to partial disability based on the former IRE provisions of the Act. In
addition, Claimant asserts that this latter reinstatement date would allow Employer
a credit for partial disability weeks which were accrued under a now unconstitutional
IRE process.


                                        I. Background
               The facts are not in dispute. On January 27, 2005, Claimant broke her
right foot in three places when she was hit by an SUV in the course of her
employment as “a City heavy line equipment truck driver” for Employer.
Reproduced Record (R.R.) at R14a-R15a (WCJ’s October 31, 2018 Decision and
Order, Finding of Fact (F.F.) Nos. 1 and 7). On December 4, 2013, Claimant
underwent an IRE, per former Section 306(a.2) of the Act. Former 77 P.S. §511.2.
The doctor who conducted the IRE determined that Claimant had a 36% whole body
impairment rating,3 and as a result, Employer filed a modification petition, which
was granted by a WCJ who was previously assigned in the matter. This earlier
WCJ’s decision modified Claimant’s disability status from total to partial, for a


       2
        Section 306(a.3) of the Act, added by the Act of October 24, 2018, P.L. 714, No. 111
(Act 111), 77 P.S. §511.3.

       3
          Former Section 306(a.2) of the Act provided for modification from total to partial
disability when a claimant was shown to have an impairment rating of less than 50%.



                                             2
period of 500 weeks,4 effective December 4, 2013. Claimant did not appeal this
modification of her benefits.


               On October 7, 2015, prior to the expiration of her 500 weeks of partial
disability benefits, Claimant filed a reinstatement petition seeking to nullify her IRE
based on this Court’s decision in Protz v. Workers’ Compensation Appeal Board
(Derry Area School District), 124 A.3d 406 (Pa. Cmwlth. 2015) (Protz I), aff’d in
part & rev’d in part, 161 A.3d 827 (Pa. 2017) (Protz II). In Protz I, we held that
Section 306(a.2) of the Act constituted an unconstitutional delegation of legislative
authority insofar as it prospectively approved versions of the American Medical
Association’s (AMA) Guides to the Evaluation of Permanent Impairment (Guides)
beyond the Fourth Edition5 without review. Claimant’s IRE had been performed
using the Sixth Edition of the Guides.


               Before the conclusion of the litigation of Claimant’s reinstatement
petition in the present matter, our Supreme Court issued its opinion in Protz II,
holding that the IRE provisions of Section 306(a.2) of the Act violated the non-
delegation doctrine of the Pennsylvania Constitution,6 and striking the entirety of
that section from the Act. See Bd. Op., 10/2/19, at 1-2.



       4
          Section 306(b)(1) of the Act, 77 P.S. §512(1), limits a claimant’s receipt of partial
disability benefits to 500 weeks.

       5
         The Fourth Edition of the Guides was in effect at the time the IRE provisions of the Act
were first enacted.

       6
        Pa. Const. art. II, §1 states: “The legislative power of this Commonwealth shall be vested
in a General Assembly, which shall consist of a Senate and a House of Representatives.”


                                                3
              In a decision and order circulated on October 31, 2018, the WCJ
granted Claimant’s reinstatement petition and determined Claimant was entitled to
reinstatement of temporary total disability benefits. In addition, the WCJ determined
Employer was not entitled to a credit for any weeks of partial disability benefits paid
to Claimant. See F.F. Nos. 4-6; R.R. at R15a-R17a. Employer appealed to the
Board.


              In its opinion and order, the Board affirmed the WCJ’s determination
that Claimant was entitled to a reinstatement from partial to total disability benefits.
However, the Board modified the decision to reflect that the reinstatement of
Claimant’s total disability benefits was effective the date she had filed her
reinstatement petition, i.e., October 7, 2015, rather than the effective date of her
conversion from total to partial disability benefits on December 4, 2013. The Board
also vacated the WCJ’s determination that Employer was not entitled to a credit for
the weeks of partial disability benefits it had already paid to Claimant, stating that
“the credit provision is triggered only when the IRE process is initiated under
Section 306(a.3)(1) of Act 111.” See Bd. Op. at 6. Claimant filed a petition for
review with this Court.7


                                         II. Appeal
              On appeal, Claimant contends that the Board erred by granting
Employer a credit for partial disability it had paid to Claimant where Claimant’s
impairment rating is 36% and where Act 111 does not permit a change in disability

       7
         Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa. 2013).


                                              4
status if an impairment rating is 35% or higher. Claimant also challenges the Board’s
amendment of the WCJ’s decision to include a reinstatement date of October 7,
2015, rather than the date of modification from total to partial disability, i.e.,
December 4, 2013, where our Supreme Court determined Section 306(a.2) of the
Act was unconstitutional. In addition, Claimant asserts that this latter reinstatement
date would allow Employer to take a credit for partial disability weeks which were
accrued under a now unconstitutional IRE process.


                           A. Applicable Law and Timeline
             For the sake of context and elucidation, albeit at the risk of some
redundancy, we provide a brief timeline and overview of some of the prominent case
law and statutory developments that are pertinent to the present matter.


             On September 18, 2015, we issued our decision in Protz I. In Protz I,
we considered whether Section 306(a.2) of the Act was an unconstitutional
delegation of legislative authority pursuant to article II, section 1 of the Pennsylvania
Constitution, in that it gave the AMA the authority to establish the criteria under
which a claimant would be adjudicated partially or totally disabled. In our decision,
we held that Section 306(a.2) of the Act constituted an unconstitutional delegation
of legislative authority insofar as it prospectively approved versions of the Guides
beyond the Fourth Edition without review. As a remedy in Protz I, we remanded to
the Board to remand to the assigned WCJ to apply the Fourth Edition of the Guides,
which was the version of the Guides in effect at the time the IRE provisions were
enacted.




                                           5
             Claimant in the present matter filed her reinstatement petition on
October 7, 2015, approximately three weeks after our decision in Protz I.


             Nearly two years later, on June 20, 2017, our Supreme Court, in Protz
II, also addressed the issue of the constitutionality of Section 306(a.2) of the Act. In
Protz II, the Court held that the General Assembly unconstitutionally delegated its
lawmaking authority in violation of the non-delegation doctrine of article II, section
1 of the Pennsylvania Constitution and struck Section 306(a.2) in its entirety from
the Act. The Court determined that the IRE provisions of Section 306(a.2) of the
Act were unconstitutional because they provided for an improper delegation of
legislative powers. Based on this determination, the Court struck that section from
the Act in its entirety. Former Section 306(a.2) of the Act read, in pertinent part:


         (1) When an employe has received total disability compensation
             pursuant to clause (a) for a period of one hundred four
             weeks…the employe shall be required to submit to a medical
             examination…to determine the degree of impairment due to the
             compensable injury, if any . . . . The degree of impairment shall
             be determined based upon an evaluation by a physician . . .
             pursuant to the most recent edition of the [AMA Guides] . . . . (2)
             If such determination results in an impairment rating that meets
             a threshold impairment rating that is equal to or greater than fifty
             per centum . . . the employe shall be presumed to be totally
             disabled and shall continue to receive total disability
             compensation benefits . . . . If such determination results in an
             impairment rating less than fifty per centum impairment . . . the
             employe shall then receive partial disability benefits under clause
             (b) . . . .
Former 77 P.S. §511.2 (emphasis added).




                                           6
             In June 2018, we considered the issue of whether a claimant, who had
her disability status modified in 2008 based on a now-unconstitutional IRE, was
entitled to the benefit of Protz II when she failed to challenge the constitutionality
of the IRE upon which the modification of her benefits was based for more than
seven years. See Whitfield v. Workers’ Comp. Appeal Bd. (Tenet Health Sys.
Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018). In Whitfield, the claimant had
her total disability benefits converted to partial disability benefits based on a June
13, 2006 IRE performed under the Fifth Edition of the Guides, and she received
benefits from September 2002, until her last payment of compensation in mid-July
2015. About a month after Protz I was decided, the claimant sought reinstatement
of her total disability benefits.    We held that because the claimant filed for
reinstatement of her benefits within three years of her last compensation payment as
permitted by Section 413(a) of the Act, 77 P.S. §772, she was entitled, as a matter
of law, to seek modification of her disability status based upon the Protz decisions.
We also held, however, that in order to be entitled to reinstatement of total disability
benefits based upon a now-unconstitutional IRE, a claimant must demonstrate that
she continues to be disabled, which she may prove through her own testimony. The
burden then shifts to the employer to prove the contrary. We stated that so long as
the claimant’s testimony is credited, and the employer presents no evidence to the
contrary, the claimant is entitled to reinstatement as of the date the reinstatement
petition is filed. We cautioned, though, that “[s]imply because Protz II is being
applied to [this] case[, which] arose from a work injury and a change in disability
status that predates it[,] did not mean it operates retroactively.” Whitfield, 188 A.3d
at 617.




                                           7
              Citing our 1980 opinion in Department of Labor and Industry, Bureau
of Employment Security v. Pennsylvania Engineering Corporation, 421 A.2d 521,
523 (Pa. Cmwlth. 1980), we noted: “A law is given retroactive effect when it is used
to impose new legal burdens on a past transaction or occurrence.” Whitfield, 188
A.3d at 616. We added: “Our decision today does not impose any new legal
consequences based upon a past transaction. . . . This decision does not alter [a
c]laimant’s past status.” Id. at 617. We relied on Warren v. Folk, 886 A.2d 305 (Pa.
Super. 2005), to further explain when a law is to be given retroactive effect. In
Warren, the Pennsylvania Superior Court explained that it, and our Supreme Court,
had considered the issue of retroactivity in terms of whether the statute in question
affects vested rights and determined that


              [w]here no vested right or contractual obligation is involved, an
              act is not retroactively construed when applied to a condition
              existing on its effective date even though the condition results
              from events prior to that date. . . . A “vested right” is one that
              “so completely and definitely belongs to a person that it cannot
              be impaired or taken away without the person’s consent.”
Id. at 308.


              On October 11, 2018, we issued our opinion in Dana Holding
Corporation v. Workers’ Compensation Appeal Board (Smuck), 195 A.3d 635 (Pa.
Cmwlth. 2018), which was recently affirmed by our Supreme Court. See Dana
Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), __ A.3d __ (Pa., No. 44
MAP 2019, filed June 16, 2020). In Dana Holding, the claimant was injured at work
in April 2000. In June 2014, he underwent an IRE in which he was determined to
have a whole body impairment rating of 11% under the Sixth Edition of the Guides.
As a result, the employer sought to modify claimant’s disability status from total to


                                            8
partial. However, Protz I was decided before the assigned WCJ ever issued a
decision. At that point, the employer sought to reopen the record and introduce a
new IRE using the Fourth Edition of the Guides, as permitted by Protz I. The WCJ
allowed employer to do so, and under the Fourth Edition, the claimant was found to
be 15% impaired. The WCJ modified the claimant’s benefits to partial disability
effective June 20, 2014, the date of the first IRE, and both the claimant and the
employer appealed to the Board.


              The Board granted the employer’s request for a stay pending the
outcome in Protz II. Once the Protz II decision was issued, the Board reversed the
WCJ’s decision and reinstated the claimant to total disability effective June 20, 2014.
The employer then appealed to this Court, arguing the Board erred in applying Protz
II retroactively.


              We determined that Protz II should apply in Dana Holding because the
claimant’s disability status/IRE was still being actively litigated and, thus, was not
final when the Protz decisions were issued.           We further held that, in such
circumstances, the claimant should be returned to total disability as of the date of the
IRE, not merely as of the date of the decision in Protz II. We rejected the employer’s
argument that it had a vested right at stake and that it should receive a credit for three
years of “temporary disability,” from the June 20, 2014 IRE to the date of the
decision in Protz II, i.e., June 20, 2017, which should be counted towards the
claimant’s limit of 500 weeks of partial disability compensation. Dana Holding,
195 A.3d at 642-43. We held that the claimant did not waive his right to challenge
the constitutionality of his IRE, in part because employer had made it an issue when



                                            9
it sought to reopen the record to introduce a new IRE under the Fourth Edition of the
Guides, per Protz I.


             On October 24, 2018, Act 111 took effect, replacing Section 306(a.2)
of the Act with new Section 306(a.3). Section 306(a.3) of the Act reads in pertinent
part:


             When an employe has received total disability compensation
             pursuant to clause (a) for a period of one hundred four weeks . .
             . the employe shall be required to submit to a medical
             examination . . . to determine the degree of impairment due to
             the compensable injury, if any . . . . The degree of impairment
             shall be determined based upon an evaluation by a physician . . .
             pursuant to the most recent edition of the [AMA Guides], 6th
             edition (second printing April 2009) . . . . (2) If such
             determination results in an impairment rating that meets a
             threshold impairment rating that is equal to or greater than thirty-
             five per centum . . . the employe shall be presumed to be totally
             disabled and shall continue to receive total disability
             compensation benefits and shall continue to receive total
             disability compensation benefits . . . . If such determination
             results in an impairment rating less than thirty-five per centum
             impairment…the employe shall then receive partial disability
             benefits under clause (b) . . . .
77 P.S. §511.3 (emphasis added).


             Section 3(2) of Act 111 states: “For the purposes of determining the
total number of weeks of partial disability compensation payable under section
306(a.3)(7) of the Act, an insurer shall be given credit for weeks of partial disability
compensation paid prior to the effective date of this paragraph.” 77 P.S. §511.3,
Historical and Statutory Notes.




                                          10
                                B.     Analysis
              Considering Claimant’s arguments in reverse order, we disagree with
the assertion that the Board improperly amended the WCJ’s order to make it clear
that Claimant’s reinstatement to total disability was to begin as of the date she filed
her reinstatement petition rather than the date of her conversion from total to partial
disability.


              Claimant asserts that our opinion in Dana Holding, rather than
Whitfield, is controlling in the present matter.8 Specifically, Claimant argues that
the present matter is distinguishable from Whitfield because Claimant filed her
reinstatement petition within her 500 weeks of partial disability, not after the 500-
week period of partial disability was exhausted, as was the case in Whitfield.
However, Claimant misapprehends the distinction between Whitfield and Dana
Holding which makes Whitfield more applicable to the matter before us. Here, it is
not that Claimant filed her reinstatement petition within the 500-week period of
partial disability; rather it is that Claimant previously had her benefits modified from
total to partial disability effective 2013, did not appeal that decision, and is seeking
reinstatement of her benefits, via a reinstatement petition filed in October 2015, after
the decision in Protz I. This makes the present Claimant more like the claimant in
Whitfield than the claimant in Dana Holding, who was still in the process of litigating
her reinstatement petition when Protz I and its progeny began to be decided. In fact,
in Dana Holding, we specifically limited our holding as follows: “We reiterate that


       8
         Due to the timing of Claimant’s appeal, her argument to this Court relies on our 2018
Dana Holding opinion, i.e., Dana Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), 195
A.3d 635 (Pa. Cmwlth. 2018), which our Supreme Court recently affirmed in Dana Holding Corp.
v. Workers’ Comp. Appeal Bd. (Smuck), __ A.3d __ (Pa., No. 44 MAP 2019, filed June 16, 2020).


                                             11
our holding is limited to cases, such as this, where the underlying IRE was still being
actively litigated when Protz II was issued. The extent to which Protz II may be
retroactively applied to another factual scenario is not currently before us.” Dana
Holding, 195 A.3d at 642 n.9. In its opinion affirming this Court, our Supreme Court
acknowledged this limitation and stated “the Commonwealth Court did not err in
applying the Protz standard ‘to the case on appeal at the time of this Court’s
decision,’ retroactive to the date of the IRE.” Our Supreme Court further stated “our
present decision stands for the principle that the general rule in Pennsylvania will be
that, at least where prior judicial precedent [is not] overruled, a holding of this Court
that a statute is unconstitutional will generally be applied to cases pending on direct
appeal in which the constitutional challenge has been raised and preserved.” Dana
Holding Corp. v. Workers’ Comp. Appeal Bd. (Smuck), __ A.3d __ (Pa., No. 44
MAP 2019, filed June 16, 2020), slip op. at 31-32 (emphasis added). “[W]e agree
with the Commonwealth Court that a disability modification is not vested when it
remains subject to a preserved challenge pursued by a presently aggrieved
claimant.” Id. at 34 (emphasis added). In the present matter, Claimant was not
litigating the underlying IRE when Protz II (or for that matter Protz I) was issued.
Claimant’s modification from total to partial disability was effective in 2013 and had
not been appealed. Accordingly, Claimant here is entitled to reinstatement as of the
date of her reinstatement petition, not the effective date of the change in her disability
status from total to partial.


              Next, we address Claimant’s contention that the Board erred by
vacating the portion of the WCJ’s decision that Employer was not entitled to a credit
for partial disability benefits already paid to Claimant. Claimant maintains that this



                                           12
was tantamount to granting Employer said credit. However, the Board’s order did
not grant a credit. The Board merely stated that the plain language of Act 111 is that
its credit provision is triggered only when the IRE process under Section 306(a.3) is
initiated. Since Employer did not initiate the IRE process under Act 111, the Board
determined the WCJ’s finding that Employer was not entitled to a credit was
premature. See Bd. Op. at 6-7; R.R. at R8a-R9a. We agree in that the prerequisite
of Employer seeking a new IRE under Section 306(a.3) never occurred. Thus, the
matter of whether Employer is entitled to a credit was not actually before the WCJ,
the Board, or us.


                                III. Conclusion
             For the foregoing reasons, we affirm the Board’s order.




                                              ______________________________
                                              J. ANDREW CROMPTON, Judge




                                         13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yolanda White,                        :
                       Petitioner     :
                                      :
            v.                        :   No. 1463 C.D. 2019
                                      :
Workers’ Compensation Appeal          :
Board (City of Philadelphia),         :
                         Respondent   :




                                    ORDER
           AND NOW, this 17th day of August 2020, the October 2, 2019 Order
of the Workers’ Compensation Appeal Board is AFFIRMED.




                                      _________________________________
                                      J. ANDREW CROMPTON, Judge
              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Yolanda White,                                      :
                                 Petitioner         :
                                                    :
                  v.                                :    No. 1463 C.D. 2019
                                                    :    Submitted: June 11, 2020
Workers' Compensation Appeal                        :
Board (City of Philadelphia),                       :
                         Respondent                 :

BEFORE:           HONORABLE MARY HANNAH LEAVITT, President Judge
                  HONORABLE RENÉE COHN JUBELIRER, Judge
                  HONORABLE P. KEVIN BROBSON, Judge
                  HONORABLE MICHAEL H. WOJCIK, Judge
                  HONORABLE CHRISTINE FIZZANO CANNON, Judge
                  HONORABLE ELLEN CEISLER, Judge
                  HONORABLE J. ANDREW CROMPTON, Judge

CONCURRING OPINION
BY PRESIDENT JUDGE LEAVITT                                              FILED: August 17, 2020

                  Act 1111 can be construed to entitle Yolanda White (Claimant) to a
reinstatement of her total disability status as of December 4, 2013, the date of her
impairment rating evaluation (IRE). This alternate construction is set forth in my
concurring opinion in Rose Corporation v. Workers’ Compensation Appeal Board
(Espada), ___A.3d ___ (Pa. Cmwlth., No. 661 C.D. 2019, filed August 17, 2020)
and is hereby incorporated by reference.
                  Section 3(2) of Act 1112 provides that an employer’s partial disability
payments made “prior to the effective date” of Act 111 will be credited towards a

1
    Act of October 24, 2018, P.L. 714, No. 111 (Act 111).
2
    Section 3 of Act 111 provides:
          (1) For the purposes of determining whether an employee shall submit to a medical
          examination to determine the degree of impairment and whether an employee has
          received total disability compensation for the period of 104 weeks under section
          306(a.3)(1) of the act, an insurer shall be given credit for weeks of total disability
claimant’s maximum of 500 weeks of partial disability. This lookback provision,
together with Act 111’s immediate effective date, can be construed to express an
intention by the General Assembly to authorize the use of an IRE that conforms to
Act 111’s standards, even if done before the passage of Act 111. Accordingly, an
employer’s payments of partial disability compensation made prior to Act 111 will
be credited to the claimant’s maximum only where those payments were made
pursuant to an IRE that conformed to Act 111’s standards.
               Here, Claimant’s IRE was done under the Sixth Edition of the
American Medical Association’s Guides to the Evaluation of Permanent Impairment
(AMA Guides) and produced a whole body impairment of 36%.3 The results of this
IRE do not authorize a modification of a claimant’s disability status under Act 111.
Under the alternate construction of Act 111, the City of Philadelphia (Employer)
would not be entitled to a credit under Section 3(2) of Act 111 for weeks of partial
disability benefits it paid to Claimant from December 4, 2013, to October 7, 2015,



        compensation paid prior to the effective date of this paragraph. This section shall
        not be construed to alter the requirements of section 306(a.3) of the act.
        (2) For the purposes of determining the total number of weeks of partial disability
        compensation payable under section 306(a.3)(7) of the act, an insurer shall be given
        credit for weeks of partial disability compensation paid prior to the effective date
        of this paragraph.
Act 111, §3 (emphasis added).
3
  Section 306(a.3)(4) of the Workers’ Compensation Act (Act) states:
        An employe may appeal the change to partial disability at any time during the five
        hundred-week period of partial disability; Provided, That there is a determination
        that the employe meets the threshold impairment rating that is equal to or greater
        than thirty-five per centum impairment under the American Medical Association
        “Guides to the Evaluation of Permanent Impairment,” 6th edition (second printing
        April 2009).
Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of Act 111, 77 P.S. §511.3(4)
(emphasis added).
                                             MHL-2
and Claimant would be entitled to a reinstatement of her total disability status as of
the date of her IRE.
             The Workers’ Compensation Appeal Board believes that Act 111
comes into play only if the claimant undergoes a new IRE on or after the effective
date of Act 111. See White v. City of Philadelphia (Workers’ Compensation Appeal
Board, No. A18-1204, filed October 2, 2019), slip op. at 6. There is no language in
Act 111 to support the Board’s belief. Cf. Section 2 of the Act of October 23, 2014,
P.L. 2905, No. 189 (stating that amendment to Vehicle Code “applies to persons
sentenced on or after effective date of this section”). The Board’s interpretation
requires a redundant IRE and may provide a benefit to the employer, but it provides
none to the claimant.
             Nevertheless, our Supreme Court’s recent holding in Dana Holding
Corporation v. Workers’ Compensation Appeal Board (Smuck), __ A.3d __ (Pa.,
No. 44 MAP 2019, filed June 16, 2020), has implicitly adopted the position that a
claimant must undergo a new IRE in order for Section 3(2) of Act 111 to have effect.
Accordingly, I am constrained to join the majority.




                                    MARY HANNAH LEAVITT, President Judge




                                       MHL-3
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Yolanda White,                              :
                           Petitioner       :
                                            :
                    v.                      :    No. 1463 C.D. 2019
                                            :    Submitted: June 11, 2020
Workers’ Compensation Appeal Board          :
(City of Philadelphia),                     :
                        Respondent          :



BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE CHRISTINE FIZZANO CANNON, Judge
             HONORABLE ELLEN CEISLER, Judge
             HONORABLE J. ANDREW CROMPTON, Judge


CONCURRING OPINION BY
JUDGE COHN JUBELIRER                            FILED: August 17, 2020


      I concur in the majority’s affirmance of the Order of the Workers’
Compensation (WC) Appeal Board (Board), which reinstated Yolanda White
(Claimant) to total disability status as of the date she filed her reinstatement petition,
October 7, 2015. I write separately to clarify that the effect of this holding, as
Claimant recognizes, is that the intervening period from the date of the impairment
rating evaluation (IRE), December 4, 2013, until the reinstatement petition was filed
on October 7, 2015, would remain partial disability weeks. Whether the City of
Philadelphia (Employer) actually receives credit for those weeks of partial disability
benefits until Claimant returns to partial disability status does not alter this
determination. By granting reinstatement as of the date of the reinstatement petition,
pursuant to Whitfield v. Workers’ Compensation Appeal Board (Tenet Health System
Hahnemann LLC), 188 A.3d 599 (Pa. Cmwlth. 2018), the Court is establishing the
time periods in which Claimant is considered totally disabled and considered
partially disabled. I recognize that Section 3(2) of Act 111,1 which provides
employers and insurers credit for weeks of partial disability previously paid, may
have no practical effect until Claimant returns to partial disability status, but I believe
phrasing this as the Court “deferring” ruling on this issue now only further
complicates an already complicated issue. Claimants, employers, and insurers need
clarity on the issue raised and decided in this appeal and on Section 306(a.3) of the
Workers’ Compensation Act,2 77 P.S. § 511.3, to know how to manage their claims.
       For these reasons, I respectfully write separately to clarify my understanding
of the Court’s decision affirming the Board’s Order granting reinstatement of total
disability as of the date of the reinstatement petition as ultimately finding the weeks
between the date of the IRE and date of reinstatement to remain weeks of partial
disability.




                                             _____________________________________
                                             RENÉE COHN JUBELIRER, Judge




       1
          Act of October 24. 2018, P.L. 714, No. 111 (Act 111). Section 3(2) of Act 111 provides,
in pertinent part, that “[f]or the purposes of determining the total number of weeks of partial
disability compensation payable under [S]ection 306(a.3)(7) of the [WC A]ct, an insurer shall be
given credit for weeks of partial disability compensation paid prior to the effective date of this
paragraph.”
        2
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2510-2710. Section
306(a.3) was added by Act 111.


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