             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patricia Weidenhammer,             :
                 Petitioner        :
                                   :
            v.                     :                 No. 546 C.D. 2019
                                   :                 Submitted: March 24, 2020
Workers’ Compensation Appeal Board :
(Albright College),                :
                    Respondent     :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE ANNE E. COVEY, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                             FILED: May 14, 2020

                 Patricia Weidenhammer (Claimant) petitions for review of an
adjudication of the Workers’ Compensation Appeal Board (Board) denying her
request for a reinstatement of disability compensation under the Workers’
Compensation Act (Act).1 In so doing, the Board affirmed the decision of the
Workers’ Compensation Judge (WCJ) that Claimant had no right to compensation
because more than three years had elapsed since her last payment of disability
compensation. Claimant argues that this Court should construe the holding in Protz
v. Workers’ Compensation Appeal Board (Derry Area School District), 161 A.3d
827 (Pa. 2017) (Protz II) to be fully retroactive. As such, Claimant contends the
holding in Protz II automatically restored her total disability compensation.2 For the
following reasons, we affirm the Board.




1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
 The Pennsylvania Association for Justice filed an amicus curiae brief supporting Claimant’s
position.
                                       Background
              The facts are not in dispute. On November 9, 2001, while working for
Albright College (Employer), Claimant fell, sustaining knee contusions that
aggravated her bilateral degenerative joint disease. The aggravation necessitated
bilateral knee replacement surgery. In 2003, Claimant was awarded total disability
compensation as of the date of injury.
              On April 5, 2004, Employer requested the Bureau of Workers’
Compensation to designate a physician to perform an impairment rating evaluation
(IRE) of Claimant. On May 5, 2004, David Baker, M.D., did the requested IRE,
using the Fifth Edition of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (AMA Guides). Dr. Baker’s IRE concluded
that Claimant had a whole body impairment of 36%. Because the IRE rating was
less than 50%, Claimant’s disability status automatically changed from total to
partial as of March 26, 2004.3
              Claimant attended the IRE without objection; did not file a petition to
review its accuracy; and did not challenge the change in her disability status. WCJ
Decision, 4/24/2018, Findings of Fact Nos. 5-6, at 4. On December 3, 2013,
Claimant exhausted her 500 weeks of partial disability benefits and received her final
payment of disability compensation. Id., Finding of Fact No. 8, at 4.
              On October 17, 2017, Claimant filed a petition to reinstate her disability
compensation for the stated reason that in Protz II the Pennsylvania Supreme Court
had declared Section 306(a.2) of the Act unconstitutional. Claimant argued that
because the 2004 change in her disability status had been authorized by Section

3
  This was the date Claimant reached 104 weeks of total disability compensation, which is the
earliest an employer could request an IRE under former Section 306(a.2) of the Act, formerly 77
P.S. §511.2(1), repealed by the Act of October 24, 2018, P.L. 714, No. 111.
                                              2
306(a.2), her right to total disability compensation was automatically restored by our
Supreme Court’s ruling.
              The WCJ denied Claimant’s reinstatement petition. Section 413(a) of
the Act, 77 P.S. §772, requires a reinstatement petition to be filed “within three years
after the date of the most recent compensation,” and Claimant had filed her
reinstatement petition almost four years after her last payment. WCJ Decision,
4/24/2018, Finding of Fact No. 9, at 4. The WCJ further reasoned that Protz II had
an effect only for those claimants with a case in active litigation, which did not
include Claimant.
              Claimant appealed to the Board. Relying upon Whitfield v. Workers’
Compensation Appeal Board (Tenet Health System Hahnemann LLC), 188 A.3d 599
(Pa. Cmwlth. 2018) (en banc), the Board affirmed the WCJ. In Whitfield, this Court
held that claimants who wished to take advantage of the holding in Protz II had to
file an appropriate petition. The claimant in Whitfield did so by filing a reinstatement
petition within three years of the date of the last payment of compensation in
accordance with Section 413(a) of the Act, 77 P.S. §772. By contrast, here, Claimant
filed her reinstatement petition outside the three-year deadline.
                                         Appeal
              Claimant has petitioned for this Court’s review and raises one issue.4
Claimant argues that the Pennsylvania Supreme Court’s decision in Protz II voided
her IRE ab initio; thus, she is entitled to a reinstatement of total disability




4
  We review Board adjudications to determine whether errors of law were made, whether
constitutional rights were violated, and whether necessary findings of fact are supported by
substantial evidence. Ward v. Workers’ Compensation Appeal Board (City of Philadelphia), 966
A.2d 1159, 1162 n.4 (Pa. Cmwlth. 2009).
                                             3
compensation. Alternatively, Claimant contends that Whitfield was wrongly decided
and should be overruled.
                                       Analysis
                                           I.
             We begin with a review of the principles that govern the
implementation of a new rule of law.            The Pennsylvania Supreme Court has
recognized four different ways a new principle of law can apply to litigants.
Blackwell v. State Ethics Commission, 589 A.2d 1094 (Pa. 1991) (Blackwell III).
First, the court can apply the new rule only to future litigants, not even to the parties
in the case that occasioned the announcement of the new law. The Court termed this
application “purely prospective.” Id. at 1098. Second, the court can apply the new
rule only to the parties to the case in which the new rule is announced. Third, the
court can apply the new rule to all parties in all cases still pending at the time it is
announced. Fourth, the court can apply the new rule in what it termed a “fully
retroactive” way:

             Under this fourth choice, the new rule is applied to the case in
             which it is announced, to all cases pending at the time the new
             rule is announced, and to cases which are final at the time the
             new rule is announced.

Id. at 1099 (emphasis added). Fully retroactive application “relates back to and gives
a previous transaction a legal effect different from that which it had under the law in
effect when it transpired.”       Department of Labor and Industry, Bureau of
Employment Security v. Pennsylvania Engineering Corporation, 421 A.2d 521, 523
(Pa. Cmwlth. 1980).
             As a general rule, Pennsylvania courts apply the law that is in effect at
the time the case is decided, i.e., the above-listed third application. Blackwell III,

                                           4
589 A.2d at 1099. The general rule allows a litigant whose appeal is still pending to
receive the benefit of any changes in the law.
              In determining the “question of the retroactivity or nonretroactivity of
a new decision[,]” our Supreme Court has approved “a three-factor standard” to
consider:

              (1) the purpose to be served by the new rule, (2) the extent of the
              reliance on the old rule, and (3) the effect on the administration
              of justice by the retroactive application of the new rule.

Id. The application of a new rule of law requires the exercise of judicial discretion
on a case-by-case basis. Passarello v. Grumbine, 87 A.3d 285, 307 (Pa. 2014).
              In Protz II, 161 A.3d 827, the claimant’s IRE was done under the Sixth
Edition of the AMA Guides, and the physician assigned the claimant a whole body
impairment of 10%. This rating converted the claimant’s compensation from total
disability to partial disability.       The claimant appealed, arguing that Section
306(a.2)(1) of the Act, 77 P.S. §511.2(1), had unconstitutionally delegated the
responsibility to legislate standards for an IRE to a private entity, i.e., the American
Medical Association. Former Section 306(a.2)(1) of the Act stated that physicians
must use “the most recent edition” of the AMA Guides to determine impairment.
Former 77 P.S. §511.2(1).5 The Supreme Court upheld this Court’s holding in Protz
v. Workers’ Compensation Appeal Board (Derry Area School District), 124 A.3d
406, 412 (Pa. Cmwlth. 2015) (Protz I), that the legislature had impermissibly
delegated its legislative power to the American Medical Association. However, the

5
 In response to Protz II, the legislature enacted the Act of October 24, 2018, P.L. 714, No. 111.
Act 111 repealed Section 306(a.2) and replaced it with Section 306(a.3). Under Section 306(a.3)
an IRE must be conducted using the Sixth Edition of the AMA Guides, and the whole body
impairment must be less than 35% in order for the claimant to be moved from total to partial
disability status. 77 P.S. §511.3.
                                               5
Supreme Court rejected this Court’s holding that those IREs done under the Fourth
Edition of the AMA Guides, the edition in effect when Section 306(a.2) was enacted,
would be considered valid. The Supreme Court held, instead, that Section 306(a.2)
was incapable of a constitutional construction.
                 This Court has examined the implementation of Protz II in two
pertinent cases. A brief description of each follows.
                 In Whitfield, 188 A.3d 599, the claimant’s IRE was conducted under
the Fifth Edition of the AMA Guides and yielded a whole body impairment of 44%.
Her disability compensation automatically converted from total to partial, and she
collected partial disability compensation until 2014, when she exhausted her 500
weeks of partial disability benefits. Several months later, the claimant filed a
reinstatement petition based on this Court’s holding in Protz I, 124 A.3d 406. The
Board held that the claimant had waived her right to file a reinstatement petition
because she had not preserved the issue of whether her IRE was constitutional.
                 By the time the claimant’s appeal reached this Court, Protz II had been
decided. We concluded that the claimant’s reinstatement petition was authorized by
Section 413(a) of the Act, as long as “the petition is filed with the department within
three years after the date of the most recent payment of compensation made prior to
the filing of such petition.” 77 P.S. §772. Accordingly, we vacated the Board’s
decision and remanded for a decision on the merits of the claimant’s reinstatement
petition. Whitfield, 188 A.3d 599.
                 In Dana Holding Corporation v. Workers’ Compensation Appeal
Board (Smuck), 195 A.3d 635 (Pa. Cmwlth. 2018), petition for allowance of appeal
granted, 208 A.3d 461 (Pa. 2019),6 the claimant’s 2014 IRE was conducted under


6
    The Supreme Court’s grant of allocatur was limited to the following issues:
                                                  6
the Sixth Edition of the AMA Guides and reported a whole body impairment of 11%.
The employer filed a modification petition to change the claimant’s disability status
from total to partial. The claimant challenged the modification, claiming that he had
not reached maximum medical improvement. Before the WCJ reached a decision,
but after the record was closed, Protz I was decided. The employer then obtained a
new IRE using the Fourth Edition of the AMA Guides, as permitted by Protz I. On
the basis of the new IRE, the WCJ modified the claimant’s disability status from
total to partial.
               Both parties appealed to the Board. The claimant challenged the second
IRE that used the Fourth Edition of the AMA Guides, and the employer defended
the first IRE under the Sixth Edition of the AMA Guides as valid. While the appeal
was pending, Protz II was decided. The Board concluded that both IREs were
invalid and reversed the WCJ. The employer appealed to this Court, arguing that in
Protz II, the Supreme Court did not state that its decision was fully retroactive and,
in any case, the claimant had not preserved the constitutional issue. We rejected the
employer’s waiver argument, reasoning “that Protz II applie[d] to cases where the
underlying IRE was actively being litigated when that decision was issued[.]” Dana
Holding, 195 A.3d at 643. We affirmed the Board.




       1. Whether the Commonwealth Court erred in applying the [Protz II] standard to
       the case on appeal at the time of this Court’s decision retroactive to the date of the
       IRE instead of as of the date of the Supreme Court change in the law?
       2. Whether the Commonwealth Court’s failure to grant the employer credit for the
       three year period between the date of the IRE evaluation and the date of this Court’s
       decision in [Protz II] unlawfully violates employer’s constitutional right pursuant
       to the “Due Course of Law” provisions of the Pennsylvania Constitution Article I,
       Section 11?
208 A.3d 461.
                                                 7
             In sum, this Court has held that Protz II applies to cases in active
litigation when the Supreme Court issued its decision or where a reinstatement
petition is filed within three years of the most recent compensation payment in
accordance with Section 413(a) of the Act, 77 P.S. §772. This Court has declined
to hold that Protz II should be given “fully retroactive effect,” i.e., the fourth
application identified in Blackwell III, 589 A.2d at 1099. Full retroactive effect
would extend application of Protz II to cases long closed by virtue of Section 413(a)
of the Act, 77 P.S. §772. With these principles in mind, we address Claimant’s
appeal.
                                          II.
             Claimant argues that Protz II is fully retroactive. Under the void ab
initio doctrine, a statute is held void in its entirety and “treated as if it had never
existed.” Hawk v. Eldred Township Board of Supervisors, 983 A.2d 216, 218 n.1
(Pa. Cmwlth. 2009). Claimant argues that the new rule of law announced in Protz
II nullified her 2004 IRE and restored her right to total compensation. In support,
Claimant points to the following passage in Protz II:

             The Pennsylvania Constitution prevents the General Assembly
             from passing off to another branch or body de facto control over
             matters of policy. As we have explained, this is exactly what the
             General Assembly did in Section 306(a.2). Because we must
             enforce Article II, Section 1 without consideration of the
             exigencies that arise or “how trying our economic or social
             conditions become,” we affirm the Commonwealth Court's
             holding that Section 306(a.2) violates the non-delegation
             doctrine. Holgate Bros. Co. v. Bashore, [] 200 A. 672, 675
             ([Pa.]1938). Unlike the Commonwealth Court, however, we
             hold that Section 306(a.2) is unconstitutional in its entirety.




                                          8
161 A.3d at 841. Claimant contends that by this language, the Supreme Court
intended to make its new rule of law fully retroactive. She argues that her right to
disability compensation is protected by Article I, Section 117 and Article III, Section
188 of the Pennsylvania Constitution.
               Employer responds that Protz II should be applied only to a case in
active litigation when the new rule was announced or to a case that falls within the
three-year deadline set forth in Section 413(a) of the Act, 77 P.S. §772. Claimant
falls into neither category. Employer also responds that the constitutional provisions
invoked by Claimant are irrelevant to her claims under the Act.




7
  It provides:
        All courts shall be open; and every man for an injury done him in his lands, goods,
        person or reputation shall have remedy by due course of law, and right and justice
        administered without sale, denial or delay. Suits may be brought against the
        Commonwealth in such manner, in such courts and in such cases as the Legislature
        may by law direct.
PA. CONST. art. I, §11.
8
  It provides:
        The General Assembly may enact laws requiring the payment by employers, or
        employers and employes jointly, of reasonable compensation for injuries to
        employes arising in the course of their employment, and for occupational diseases
        of employes, whether or not such injuries or diseases result in death, and regardless
        of fault of employer or employe, and fixing the basis of ascertainment of such
        compensation and the maximum and minimum limits thereof, and providing special
        or general remedies for the collection thereof; but in no other cases shall the General
        Assembly limit the amount to be recovered for injuries resulting in death, or for
        injuries to persons or property, and in case of death from such injuries, the right of
        action shall survive, and the General Assembly shall prescribe for whose benefit
        such actions shall be prosecuted. No act shall prescribe any limitations of time
        within which suits may be brought against corporations for injuries to persons or
        property, or for other causes different from those fixed by general laws regulating
        actions against natural persons, and such acts now existing are avoided.
PA. CONST. art. III, §18.
                                                  9
              Blackwell III considered the implementation of the Supreme Court’s
prior holding in Blackwell v. State Ethics Commission, 567 A.2d 630 (Pa. 1989)
(Blackwell II), which held Section 4(4) of the Sunset Act,9 71 P.S. §1795.4(4), to be
unconstitutional. Section 4(4) authorized the “Sunset Leadership Committee,”
consisting of six members of the General Assembly, to extend the life of any statute
scheduled for sunset. In Blackwell II, city council members challenged the State
Ethics Commission’s 1988 investigation of their conduct, arguing that former
Section 3(a) of the Public Officials Ethics Act (Ethics Act), formerly 65 Pa. C.S.
§403(a),10 had lapsed on December 31, 1987, by operation of the Sunset Act. The
city council members asserted that the purported extension of the Ethics Act by a
legislative committee was unconstitutional. The Supreme Court agreed. It held that
the statutory extension mechanism set forth in Section 4(4) of the Sunset Act effected
an unconstitutional delegation of legislative power.
              The Supreme Court declined to extend its ruling to “countless
unchallenged transactions by the Commission” under the Ethics Act. Blackwell III,
589 A.2d at 1102. It explained:

              [Until the statute was deemed unconstitutional] our citizens,
              nonetheless, were required to recognize the statute and all of its
              provisions and act in compliance with those provisions
              notwithstanding their invalidity. “[S]tatutory or even judge-
              made rules of law are hard facts on which people must rely in
              making decisions and in shaping their conduct.” Lemon v.
              Kurtzman, 411 U.S. 192, 197 [] (1973). In these circumstances,
              it would indeed be chaotic to act as though the offending
              [statute] had never been enacted into law. We noted earlier that
              in concluding as we do, we have considered the countless

9
  Act of December 22, 1981, P.L. 508, as amended, 71 P.S. §§1795.1-1795.14. The Act expired
on December 22, 1991, pursuant to Section 14 of the Sunset Act of 1981, 71 P.S. §1795.14.
10
   Repealed by the Act of October 15, 1998, P.L. 729, No. 93.
                                            10
                unchallenged transactions by the Commission (and the various
                other agencies, boards and commissions) which are now final.
                Those transactions will not be upset or affected by our decision.

Id. at 1101-02 (emphasis added). Accordingly, the Supreme Court held as follows:

                We hold that that decision is to be applied retroactively to the
                instant appeal and to all proceedings pending at the time we
                announced our decision in Blackwell II in which the issue of the
                constitutionality of the Leadership Committee provisions of
                section 4(4) of the Sunset Act, 71 P.S. §1795.4(4), was timely
                and properly raised and preserved by the parties.

Id. at 1095. Thus, the Supreme Court limited the application of its holding to cases
pending at the time the statute was declared unconstitutional, and only where the
issue of the statute’s constitutionality had been raised and preserved at all stages of
litigation.11
                The right to disability compensation for a workplace injury was created
by the Act, which has imposed limits and conditions on an injured employee’s right
to compensation benefits. One such limit is found in Section 413(a) of the Act. It
authorizes a WCJ to modify, reinstate, suspend or terminate compensation “at any
time,” subject to the following provision:

                That, except in the case of eye injuries, no notice of
                compensation payable, agreement or award shall be reviewed,
                or modified, or reinstated, unless a petition is filed with the

11
   In PPG Industries, Inc. v. Board of Finance and Revenue, 790 A.2d 261 (Pa. 2001), our Supreme
Court held that Pennsylvania’s capital stock and franchise tax violated the interstate commerce
clause because it gave preferential treatment to in-state companies. The Supreme Court ordered
retroactive relief to PPG and extended its ruling to “any pending appeals by any other taxpayers
regarding this issue.” Id. at 269 n.12. Likewise, in Annenberg v. Commonwealth, 757 A.2d 338
(Pa. 2000), the Supreme Court declared an exclusion from the capital stock and franchise tax to be
unconstitutional. The Supreme Court suggested several ways to provide retroactive relief to the
litigants, but there was no suggestion the retroactive relief would apply to any taxpayers other than
the litigants.
                                                11
              department within three years after the date of the most recent
              payment of compensation made prior to the filing of such
              petition.

77 P.S. §772 (emphasis added).
              In Cozzone ex rel. Cozzone v. Workers’ Compensation Appeal Board
(PA Municipal/East Goshen Township), 73 A.3d 526 (Pa. 2013), our Supreme Court
held that the above-stated time bar in Section 413(a) operates as a statute of repose.
Accordingly, once three years have passed since “the most recent payment of
compensation” the claimant’s right to benefits is extinguished. Id. at 536; see also
Sloane v. Workers’ Compensation Appeal Board (Children’s Hospital of
Philadelphia), 124 A.3d 778, 785 (Pa. Cmwlth. 2015) (holding that because Section
413(a) of the Act acts as a statute of repose, a claimant whose benefits were
suspended may seek reinstatement of total disability payments within three years of
the last payment of benefits or the maximum 500 weeks allowed for partial disability,
whichever is later).
              Here, Claimant’s statutory right to total disability compensation had
been extinguished at the point in time that she filed her reinstatement petition. To
allow claimant to resuscitate her right to disability compensation would violate
Section 413(a) of the Act, 77 P.S. §772. Claimant may be correct that Protz II
rendered former Section 306(a.2) of the Act, formerly 77 P.S. §511.2(1), void ab
initio, but it does not follow that the Pennsylvania Supreme Court intended its ruling
in Protz II to be given a fully retroactive effect or to nullify the statute of repose in
Section 413(a) of the Act.
              As the Supreme Court explained in Blackwell III, 589 A.2d at 1099,
this Court must consider the effect a fully retroactive application of a new rule will
have on the administration of justice. We must consider the “hard facts on which

                                           12
people must rely in making decisions[.]” Id. at 1102. Citizens who have relied upon
the former understanding of the law have due process rights, as our Supreme Court
has explained:

             The hesitation to apply the void ab initio doctrine has stemmed
             from the reliance on the part of one party but only where the due
             process rights of the citizenry will not be violated by its
             enforcement. See Chicot Co. Drainage Dist. v. Baxter State
             Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940) (holding
             that the doctrine is unfair when the void law has caused reliance);
             Lemon v. Kurtzman, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d
             151 (1973) (opining that an unconstitutional statute is not
             absolutely void but its one-time existence is a practical reality
             upon which people have relied and courts should recognize that
             reality).

Glen-Gery Corporation v. Zoning Hearing Board of Dover Township, 907 A.2d
1033, 1038-39 (Pa. 2006) (emphasis added).
             Employers have relied upon the IRE provisions for many years. They
did not pursue other remedies in the Act such as a labor market survey or a
termination petition, which could have limited their liability for disability
compensation. Likewise, insurers have relied upon the 500-week limit on disability
compensation in pricing their workers’ compensation insurance policies.
             The WCJ noted that Claimant had filed numerous petitions in the course
of her workers’ compensation history, but she never raised the constitutionality of
the IRE process. WCJ Decision, 4/24/2018, Finding of Fact No. 6, at 4. The WCJ
explained:

             Employer is entitled to administrative finality despite the
             Supreme Court’s June 20, 2017, decision that IREs … are
             unconstitutional. When that decision was rendered, Claimant’s
             wage indemnity benefits had already been exhausted for nearly

                                         13
               four years. That decision cannot retroactively reactivate long-
               closed matters.

Id., Finding of Fact No. 10, at 4. The WCJ considered the potential consequences
of a fully retroactive application of Protz II and the impact it would have on “long-
closed matters” and determined that this impact militated against rewriting history
by voiding every IRE ever done. Id. We agree.
               This case is very close to Blackwell III, which involved the identical
constitutional infirmity, i.e., an unconstitutional delegation of legislative power. In
Blackwell III, the Supreme Court declined to deem all “transactions” under the
unconstitutional statute to be “null and void.” 589 A.2d at 1102. It narrowed the
availability of the new rule of law to litigants who had preserved the issue. We hold
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 Act, 77 P.S. §772.12
We reject Claimant’s first allegation of error.
                                                III.
               In her alternative issue, Claimant argues that Whitfield should be
reconsidered. She asserts that Whitfield is contrary to the directive that the Act be
liberally construed in favor of the injured worker.13 Claimant argues that the three-


12
   Full retroactive effect is generally reserved for criminal cases where life or liberty is at stake.
See, e.g., Atkins v. Virginia, 536 U.S. 304, 317 (2002) (prohibition of execution of mentally
disabled individuals required evaluation of all death-row inmates to determine mental
competency); Commonwealth ex rel. O’Lock v. Rundle, 204 A.2d 439, 441 (Pa. 1964) (right to
counsel established in Gideon v. Wainwright, 372 U.S. 335 (1963), applied to those convicted prior
to Gideon decision). Claimant acknowledges this reality but argues that the void ab initio doctrine
can be applied to civil cases. To that end, she cited provisions of the Pennsylvania Constitution.
Claimant’s right to workers’ compensation is, however, a statutory right and governed by the Act.
13
   The “Act is remedial in nature and is intended to benefit the worker; therefore, the Act must be
liberally construed to effectuate its humanitarian objectives.” Rite Care Resources v. Workmen’s
Compensation Appeal Board (Davis), 623 A.2d 917, 920 (Pa. Cmwlth. 1993).
                                                 14
year time bar set forth in Section 413(a) of the Act is inapposite because it places the
burden on the claimant to show “proof that the disability of an injured employe has
increased, decreased, recurred, or has temporarily or finally ceased, or that the status
of any dependent has changed.” 77 P.S. §772. Claimant argues that this proof is
irrelevant here where the only issue is the constitutionality of former Section
306(a.2)(1) of the Act, formerly 77 P.S. §511.2(1). Claimant states that Whitfield
recognized this:

             It makes little sense to require a claimant seeking reinstatement
             based upon an unconstitutional IRE to show a change in earning
             power when the employer was not required to show the same
             when it had the claimant’s disability status modified from total
             to partial.

Whitfield, 188 A.3d at 615-16. Claimant argues that Whitfield has rewritten Section
413(a) of the Act to address a completely different issue, i.e., those whose benefits
were halted after 500 weeks by reason of an unconstitutional IRE. Claimant argues
that Whitfield should be overruled.
             Employer dismisses Claimant’s request to reconsider Whitfield as
“ridiculous.” Employer’s Brief at 25. Employer argues that even if Whitfield was
overturned, it would have no bearing on Claimant or whether Protz II should be
applied in the fully retroactive manner that Claimant desires.
             In Whitfield, this Court construed the term “disability” in Section 413(a)
of the Act to apply to disability status, which “is linked to the rate or amount of
compensation to which a claimant is entitled.” Whitfield, 188 A.3d at 612. Although
the change in a claimant’s disability status from total to partial did not affect the
claimant’s weekly benefit amount, “we discern[ed] no reason why the term



                                          15
‘disability’ in Section 413(a) governing reinstatement from partial to total disability
… should be restricted to its traditional definition of earning power.” Id. at 614.
             We reject Claimant’s alternative argument that Whitfield was wrongly
decided and should be overturned.
                                      Conclusion
             For the above reasons, we reject Claimant’s arguments that the void ab
initio doctrine requires that Protz II be given full retroactive effect or that Whitfield
was wrongly decided. Accordingly, we affirm the Board.


                                     _____________________________________
                                     MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision in this case.




                                           16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Patricia Weidenhammer,             :
                 Petitioner        :
                                   :
            v.                     :    No. 546 C.D. 2019
                                   :
Workers’ Compensation Appeal Board :
(Albright College),                :
                    Respondent     :


                                ORDER

           AND NOW, this 14th day of May, 2020, the order of the Workers’
Compensation Appeal Board, dated April 9, 2019, is hereby AFFIRMED.

                               _____________________________________
                               MARY HANNAH LEAVITT, President Judge
