IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aqua America, Inc.

, : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Jermon Jeffers, d eceased)

, : No. 1831 C.D. 201 7 Respondent : Argued: November 15, 2018

BEFORE: HONORAB LE RENÉE COHN JUBELIRER , Judge

HONORABLE ANNE E. COVEY, Judge (P.) HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION BY JUDGE COVEY FILED: December 4, 2018

Aqua America, Inc. (Employer) petitions this Court for review of the
Workers’ Compensatio n (WC) Appeal Board’s (Board) November 14, 2017 order
affirming the Workers’ Compensation Judge’s (WCJ) decision granting Bernice

Jeffers’ (Claimant) Fatal Claim Petition filed on behalf of her deceased husband

Jermon Jeffers (Decedent) and awarding their daughter Janice Jeffers (Janice)
dependent benefits. Employer essentially presents one issue for this Court’s review:

whether the WCJ’s finding that Janice had a disability was supported by substantial

evidence. 1 After review, we vacate and remand.

On April 27, 2015, Decedent was fatally injured in a tractor

- trailer
accident that occurred while he was in the course and scope of his work for
Employer. At that time of his death , Decedent was married to Claimant . Their
daughter, Janice , who was then 17 years old, suffered from retinitis pigmentosa (RP)

,

1 Employer presented two additional issues: (1) whether the Board erred in finding that the parties stipulated to Janice’s dependency, and (2) whether the WCJ erred by placing the burden of proving Janice’s dependency on Employer

. See Employer Br. at 4

. Because those issues are subsumed in this Court’s discussion of the stated issue , they are combined herein.2

an incurable, progressive eye disease that substantially impaired her peripheral

vision

. 2

On May 7, 2015, Employer filed a Notice of Temporary Compensation
Payable (NTCP) and began paying Claimant WC b enefits. 3 O n May 11, 2015,

Claimant filed a Fatal Claim Petition (Petition) for death benefits , therein
representing, inter alia : “Daughter, Janice [], is disabled and dependent, and
compensation shall continue.” Reproduced Record (R.R.) at 5a. In its a nswer to the
Petition, Employer denied and demanded proof that “Janice [] is ‘disabled and
dependent’ such that her ‘compensation shall continue.’” 4 R.R. at 7a.

2 The Jeffers had four children, only three of whom were minors on April 27, 2015: Janice (17), Jasmin (9) and Jameel (8). Initially, Employer cha llenged dependency claims made for Janice and Jasmin. However, Employer “abandon[ed] further appeals regarding Jasmin’s claim.” Claimant Br. at 6 n.1. Therefore, t his appeal is limited to Janice ’s claim

.

3 The NTCP reflected, in pertinent part:

In ord er to begin immediate payment of benefits to [Decedent’s] family, [Employer is] filing a TNCP [sic]

. Death benefits are not typically payable under a TNCP [sic] , this will at least allow benefits to begin while [Employer] await [s] copies of [Claimant’s] m arriage certificate, her birth certificate, and the birth certificates of her four
children. Once [Employer] receive [s] these required certificates [,] [it] will issue a Notice Stopping Temporary Compensation and fil [e] an Agreement for Compensation for De ath.
Reproduced Record at 2a. Because Employer did not file an Agreement for Compensation for Death, Claimant filed the Fatal Claim Petition. See Claimant Br. at 3

- 4.

4 Employer contends that the Board erred in finding that the parties stipulated to Janice’s dependency at the August 18, 2015 WCJ hearing because “no such stipulation was ever rendered.” Employer Br. at 9. The following exchange took place at the August 18, 2015 WCJ hearing:

[Claimant’s Counsel]: . . . . The oldest of the minor childr en is 17 turning 18 in March. So we want to make sure that her benefits would, our position, continue as the result of her disability.

. . .
[WCJ]: Okay.

[Employer’s Counsel]: Yeah, Judge, from my understanding [ , ] the two children that they maintain wi ll be [sic] remain dependent even after they become 18 . One at 17 who has an eye issue, blindness issue. . . . We’re going to have to have her looked at.3 WCJ hearings were conducted on August 18, 2015 and February 25 and
April 19, 2016. On Dece mber 8, 2016, the WCJ granted the Petition “with respect to
. . . Jani[ce’s] . . . en titlement to dependency benefits ” which “shall continue beyond
the age of 18 until such time as Employer meets its burden of proving that [Janice is]
capable of self

- suppo rt.” 5 R.R. at 138a ( WCJ Dec. at 12 )

. Employer appealed to the
Board, which affirmed the WCJ’s decision. Employer appealed to this Court. 6

Initially, “[a] claimant seeking to prevail on a [fatal] claim petition bears
the burden of proving all elements f or an award.” Reading Anthracite Co. v.
Workers’ Comp. Appeal Bd. (Felegi) , 789 A.2d 404, 408 (Pa. Cmwlth. 2001).
Specifically, S ection 307 of the WC Act (Act) 7 provides, in relevant part:

Compensation shall be payable

. . . to or on account of any child

. . . only if and while such child

. . . i s under the age of eighteen unless such child

. . . is dependent because of disability when compensation shall continue or be paid during such disability of a child

. . . o ver eighteen years of age or unless such child is enrolled as a full

- time student in any accredited educational institution when compensation shall continue until such student becomes twenty

- three.

R.R. at 15a

- 16a. La ter during th at WCJ hearing, Employer’s C ounsel represented that they may be
abl e to come to some agreement regarding Janice’s claim, but he would not be sure until he received Janice’s medical examination results. See R.R. at 32a. Based on this Court’s record review, it is not clear that Employer st ipulate d to Janice’s dependency. Moreover, if it had, there would be no basis for Employer’s challenge on appeal. Notwithstanding, based upon our disposition of Employer’s first issue, this issue is moot.

5 Janice’s birthday is March 15, 1998. See Claimant Br. at 4 ; see also R.R. at 23 a

. Janice turned 18 years old on March 15, 2016. S he is currently 20 years old.

6 “On review[,] this Court must determine whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were supported by substanti al competent evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.) , 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).

7 Act of June 2, 1915, P.L. 736, as amended , 77 P.S. §§ 1

- 1041.4, 2501

- 2708. Section 307 of the Act was recognized as uncon stitutional on other grounds by Grimm by Grimm v. Workers’ Comp ensation Appeal B oard (Fed. Express Corp.) , 176 A.3d 1045 (Pa. Cmwlth. 2018).4

7 7 P.S. § 562 ( bold and italic emphasis added)

. 8 Pursuant to S ection 307 of the Act , a

decedent’s children are eligible for death benefits : (1) until they are 18 years old ; (2)
until they are 23 years old

, if they are enrolled as full

- time student s in an accredited

educational institution ; or (3) they are over 18 years of age but dependent due to

disab ility

. Hertz Corp. v. W orkers’ Comp. Appeal Bd. (Johnson) , 724 A.2d 395 (Pa.

Cmwlth. 1999)

. T hus, as a matter of law, Janice was entitled to dependent death

benefits until she turned 18 years of age on March 15, 2016. Thereafter, in order for

Janice to be eligible for such benefits , Claimant had to prove either Jan i ce wa s a full

time student, or dependent because of a disability.

Employer argues that the WCJ’s finding that Janice was disabled by her

RP was not su pported by substantial evidence. Sp ecifically, Employer avers that
Claimant “only proved that [Janice] has a diagnosis[,] but [] failed to prove an actual
disability” that would justify continued dependent benefits for Janice after she turned

18 , given that her vision remains largely intact and has not resulted in functional

deficits

. Employer Br. at 9.

“As with all claim petitions, the elements necessary to support [a fatal
claim petition] award must be established by substantial evidence. Substantial

evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Gibson v. Workers’ Comp. Appeal Bd.
(Armco Stainless & Alloy Prods.) , 861 A.2d 938, 943 (Pa. 2004).

At the August 18, 2015 WCJ hearing, Claimant testified that Jan ice had
vision problems during childhood , but was diagnosed with RP when she was 15 years

old , approximately two years before Decedent’s death

. Claimant described that , over

8 “ The intent of the Act is to grant dependency death benefits to dependent children of deceased employees for th e purpose of providing some measure of the support that they would have received had their parent or legal guardian not died as a result of their work injuries. ” Wilson v. Travelers Cas. & Sur. Co. , 88 A.3d 237, 248 (Pa. Cmwlth. 2013)

.5

time, the RP has resulted in Janice losing her peripheral vision, and has caused her

eyes to be slow to adjust from light to dark and dark to light environments

. She

related that , because Janice cannot see things around her, Claimant must guide Janice
to keep her from bumping into things , falling down steps and getting hurt

.

Claiman t articulated that Janice was a senior at a public high school, and

[s] he ’ s able to get around and everything by herself, but the doctor has been in touch with the school nurse that any of her teachers that have

. . . the blinds open and things like th at [sic] so she can see the board. Cause they use a lot of the white boards now instead of the chalkboard

--

. . . .
and there’ s a glare and she cannot see if the lights are out.

R.R. at 26a

- 27a. Claimant reported that Janice is not involved in any other school

activities

. Claimant recalled that Moore Eye Institute ophthalmologist and

vitreoretinal surgeon Ravi D. Patel, M.D. (Dr. Patel) has been treating Janice for
approximately one year as of the hearing date. She stated that Dr. Patel tests Janice

eve ry six months to determine whether the RP has worsened. Claimant explained
that Janice must conduct weekly self

- examinations to detect whether bleeding
associated with peripheral vision loss (which would lead to permanent scarring) is
occurring.

Claiman t also presented Dr. Patel’s December 29, 2015 deposition
testimony that Janice has RP, which is a rare, hereditary genetic disease of the retina
that limits peripheral vision. He described that, “the younger it presents, the more

severe it is [,] ” R.R. at 41a, being both aggressive and progressive. See R.R. at 4 2 a , 53a

. Dr. Patel express ed that Janice’s condition is “a young presentation.” R.R. at
41a. He explained that RP progressive “degeneration . . . starts peripherally and
works its way centrally, ” R.R. at 41a, and will cause one’s visual field to constrict6

more and more to the point of tunnel vision, “and [then the] tunnel aperture over time
gets smaller and smaller and smaller.” 9 R.R. at 4 2 a. Dr. Patel reported that total

blindness from RP is r are, and that most people are “able to at least maintain a
pinhole.” 10 R.R. at 42a ; see also R.R. at 54a

.

Dr. Patel further detailed that RP affects night vision, or dark adaptation

, which is the adjustment between different lighting environments , explai ning :

So when you go from a very lighted area to a dark area,

even though the patient has that central vision, when the lights are off, essentially [the patient has] no vision because of the rods being destroyed in [RP]

. And the peripheral rods that we ha ve in our retina help us with our night vision. If you don ’ t have that, even though you ’ re functional, your central retina is attacked, not having those peripheral rods comp[romises] your night vision and your central vision.

R.R. at 42a

- 43a. He stated t hat it is difficult for individuals with this problem “to
drive or to do any kind of really daily function without proper lighting.” R.R. at 43a.

Dr. Patel demonstrated that Janice’s RP has severely restricted her visual
field to the point where she has vision only just beyond the sides of her face, to about
her shoulders ( i.e. , a 20

- degree visual field on each side). See R.R. at 43a ; see also

R.R. at 68a

- 69a (Janice’s test results) . He declared that

, although Janice’s testing
over the past year did no t change, a larger time sample is necessary because there is a
“very high, if not certain correlation,” R.R. at 53a, “given [Janice’s] early
presentation, [that] she . . . will have deterioration as she gets older[,]” although “how
likely and how fa s t it i s, [] is very difficult to determine.” 11 R.R. at 49a ; see also R.R.

9 Dr. Patel explai n ed that he has never seen progressive RP stabilize, although he has read articles about mild RP cases where the visual field constriction is stationary and non

- progressive.
See R.R. at 53a.

10 Dr. Patel report ed that “less than 20 degrees of visual field” is legal blindness, and “the progressive, aggressive [RP] types generally do get to that area.” R.R. at 42a ; see also R.R. at 54a

.

11 Dr. Patel stated that he could give a more definitive statement in five years. See R.R. at 49a , 53a.7

at 53a . He asserted that there is no cure for RP, no surgery that can better Janice’s
RP, and although visual rehabilitation therapy “can help with magnification for near

work, [] it will never expand her visual field.” 12 R.R. at 44a ; see also R.R. at 55a

. In
his October 16, 2015 letter to Claimant’s counsel, Dr. Patel classified Janice’s long

term prognosis as “guarded.” R.R. at 60a.

Dr. Patel pronounced that Janice cannot legally d rive, and she is having
difficulty seeing writing on whiteboards and overhead projectors at school if the
lights are off. See R.R. at 50a.

A. Because of their constricted vision field, she can ’ t see where she steps when she looks down and especially in a darker environment when her functional central vision is compromised. So even though she has 40 degrees of total field, in a darker environment that diminishes.

Q. So the vision that she does have is compromised by this difficulty in adjusting from light to dark or dark to light, in addition to the fact that she doesn ’t have a wide visual field?

A. Correct.

Q. So it ’ s not as though her tunneled vision is perfect vision; it ’ s still affected by the difficulties with light, dark and adjustment?

A. Corre ct. Just because she ’ s 20/30 doesn ’ t mean she ’ s 20/30 all the time. It gets compromised with different lighting environments. Especially, it gets severely compromised when she ’ s in total d arkness.

Q. And going from indoors to outdoors, like from bright l ight to darker light?

A. Yeah, it takes her time to adjust. It takes her about 90 seconds to 3 minutes to adjust. So that 20/30 acuity, that

12 Dr. Patel testifi ed that Janice’s visual acuity is 20/30 bilaterally. She does not wear glasses because she does not have any refractive error that requires glasses and, even with a prescription, she is not going to see better than 20/30. See R.R. at 49a

- 50a. So, althou gh limited in scope, what vision Janice has is clear.8 sharp acuity she may have centrally is always in flux based off of ambient light.

Q. And when you say takes time to adjust, what is her vision like while it ’ s adjusting?

A. It ’ s below 20/30. I mean, that is the hard place and difficult to say exactly what it is

, but it ’ s not 20/30.

Q. And so it ’ s greater compromised?

A. Yeah, correct.

R.R. at 56a

- 57a. Dr. Patel conc luded to a reasonable degree of medical certainty

, based upon Janice’s history and his August 14 and 28, 2014 and February 26 and
August 17, 2015 examinations and testing, that “[Janice] is disabled[,]” and “she is
not able to []support herself” as a resul t. R.R. at 44a ; see also R.R. at 40a, 57a.

Employer offered the April 1, 2016 deposition testimony of
ophthalmologist and oculoplastic surgeon Edward H. Bedrossian, Jr., M.D., F.A.C.S.
(Dr. Bedrossian) , who examined Janice at Employer’s request on Dece mber 8,

2015. 13 Dr. Bedrossian’s review of Janice’s history , Dr. Patel’s testing and his own
testing confirmed that Janice’s visual acuity is 20/30 bilaterally and she has RP with
peripheral constriction and problems with dark adaptation

, see R.R. at 90a

, 95a, 102a

, it is progressive, and “there’s nothing, at least as of right now, that we can do that will
slow the progression.” R.R. at 91a ; see also R.R. at 105a

. Dr. Bedrossian
acknowledged that RP is rare, and that “there’s no way to predict whether it’ s going
to stop. She can be the way she is now for the rest of her life or it can progress.
There’s really no way of knowing, so she needs surveillance[,]” every six months.

R.R. at 92a ; see also R.R. at 101a

. However, he acknowledged that since Janice ’s RP
presented at such a young age, her peripheral vision loss could eventually leave her

13 Dr. Be d rossian is “not a retina specialist,” but rather refers his patients to retinal specialists when necessary. R.R. at 77a. Specifically, he refers most RP patients to retinal specialists

. Se e R.R. at 99a.9

with only pinpoint vision. See R.R. at 103a

- 104a, 107a. Like Dr. Patel, in his
independent medical report to Employer’s counsel, he categorized Janice’s prognosis
as “guarded.” R.R. at 126a.

Dr. Bedrossian o bserved Janice move around his examination room

without assistive devices, and admitted Janice was “more comfortable with he r mother helping guide her out through the doorways and to the office.” R.R. at 96a

. He stated that Janice could not drive, be on a ladder or safely play sports, but she can
read and could do a job that did not require her to drive or use her peripheral vision.

See R.R. at 98a. He agreed that peripheral vision loss and night vision pr oblems add
to an RP sufferer’s difficulty conducting activities of daily living without someone to
direct them, but stated that Janice’s condition will no t prevent her from attending
college or working. See R.R. at 106a, 108a.

“ A determination of dependen cy is a question of fact within the province
of the [WC] authorities.” Grimm by Grimm v. Workers ’ Comp. Appeal Bd. (Fed.
Express Corp.) , 176 A.3d 1045, 1054 (Pa. Cmwlth. 2018). Further, “[t] he WCJ has
exclusive authority to act as fact finder, determine credibility of witnesses, and weigh

the evidence. The WCJ ’ s findings will not be disturbed if they are supported by
substantial, competent evidence. ” Stepp v. W orkers’ Comp. Appeal Bd . (FairPoint

Commc ’ ns, Inc.) , 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014) ( citation omitted)

.

‘ Moreover, we are to draw all reasonable inferences which are deducible from the evidence in support of the factfinder’s decision in favor of that prevailing party. ’ It does not matter if there is evidence in the record supporting findi ngs contrary to those made by the WCJ; the pertinent inquiry is whether the evidence supports the WCJ ’ s findings

. 3D Trucking Co., Inc., v. Workers’ Comp. Appeal Bd. (Fine & Anthony Holdings

Int ’l ) , 921 A.2d 1281, 1288 (Pa. Cmwlth. 2007) (citation omitted) ( quoting10

Waldameer Park, Inc. v. Workers’ Comp. Appeal Bd. (Morrison), 819 A.2d 164, 168

(Pa. Cmwlth. 2003) )

.

The WCJ in this case made the following findings of fact:

8. Based upon a review of the evidentiary record as a whole

, this [WCJ] accepts the te stimony of [Claimant] in its entirety as credible and persuasive. Significant in reaching this determination is that [Claimant’s] testimony is essentially un c ontradicted, supported by the testimony of Dr. Patel

. . . . Additionally , h er testimony is base d on her first [

- ] hand interactions with her daughter [Janice]

. Also si gnificant is this [WCJ’s] observation of [Claimant’s] demeanor while testifying and hearing her testimony first [

- ] hand.

9. Notably. Drs. Patel and B edrossian essentially agree on the di agnosis of R P affectin g [Janice’s] peripheral vision and night vision. Dr. Bedrossian agrees that the difficulties with night vision

, which is more than an inability to see at night but also issues with light and dark adaptation

, add additional problems w ith performin g activities of daily living. He also agrees that [Janice] cannot drive and has to be careful walking down steps.

10. Based upon a review of the evidentiary record as a whole, the [ WCJ ] finds the testimony of Dr. Patel more credible and persu asive than any contrary testimony of Dr. Bedrossian

. Accordingly

, the testimony of Dr. Bedrossian is rejected wherever inconsistent with the testimony of Dr. Patel and the testimony of Dr. Patel is accepted as fact

. Significant in reaching this determina tion are the following:

a) Dr. Patel specializes in diseases o f the retina and the vitreous, [he] completed a residency in ophthalmology and a vitreoretina l fellowship and
per for ms retinal surgeries. W hile Dr. Bedrossian is board certified in ophthalmolog y , he specializes in ophthalmology and subspe c ializes in plastic reconstructive sur g ery and trauma. Dr. Bedrossian is not a retina specialist.

b) The medical analysis of Dr. Patel is clear, logical and well [

- ] supported. His testimony is based on the11 exam inations and testing per fo rmed and his expertise.

11. [ Jan i ce ] has an a g gressive and progressive form of [RP] which was diagnosed at the age of 16 in August of 2014 and detrimentally affects her peripheral vision and night vision which also includes light and dark adaptation. She has 20 degrees out of 90 degrees of peripheral vision on each side, with anythin g less than 20 degrees meeting the criteria for le g al blindness. She cannot see at night , h as problems with adapting to changes in lighting and her vision is compromised with different lighting changes. [Janice] had RP on the date of her f

ather ’ s death on [April 27 , 20 15 ] and will always have RP. It is incurable

, will progress and nothing can slow the progression. RP adversely affects [ Janice ’s] a b ility to perform activities of daily living. [Claimant] guides [Janice] when she goes out and a f ter sunset because she cannot see what is around her. [Janice] is not self

- supporting without assistance.

R.R. at 132a ( WCJ Dec. at 6 ) (emphasis added)

. Base d upon those factual findings,

the WCJ concluded:

6. [Claimant] sustained her burden of proving that when Decedent

. . . died [,] [Janice] was a minor and had a physical disability and was not capable of self

- support.
7. Employer failed to sustain its burde n of proving that [Janice] was capable of self

- support after attaining the age of 18 and thus [Janice ’s ] dependency benefits shall continue. [ 14 ]

R.R. at 136a ( WCJ Dec. at 10 )

. Accordingly, the WCJ granted the Petition, thereby
granting Janice continuing de pendent death benefits after she turned 18 years old

. The Board agreed.

As a matter of law, Janice was entitled to disability death benefits until
she was 18 years of age, on March 15, 2016. There is no rec ord evidence that Janice

14 T he WCJ erred by placing the burden of proving Janice’s dependency on Employer at this stage

. Claimant had the burden of proving Janice’s eligibility for dependent benefits

. Reading Anthracite Co.12

was thereafter enrolle d as a full

- time student at an accredited educational institution.
Thus, in order for Janice’s disability death benefits to continue after her 18 th
birthday , Claimant had to establish that Janice was “dependent because of disability.”

77 P.S. § 562

.

R egarding dependency, w e acknowledge:

No rigid rule can be laid down as to the amount or character of evidence necessary to show dependency, and each case must be controlled by its own circumstances

. Morris v. Yough Coal & Supply Co.

, . . . 109 A. 914 [(Pa . 1920)]

.
‘ While dependency must be actual [ , ] it is not necessary that it be exclusive; it must be real but need not be total

.

. . . Dependency does not mean sole and exclusive support. . . .’ Walker v. Aluminum [ Co. ] of [ Am. ], . . . 138 A.2d 197 [(Pa. Super. 1958)].

Walker v. Heavey , 219 A.2d 466, 468 ( Pa. Super. 1966) (emphasis added)

. Moreover, “ support must be defined in the terms of the living standards and

circumstances of life of the individual involved. ” Id. at 468

.

Although the parties’ medi cal experts agreed that Janice has a medically

diagnosed physical condition that has been and likely will continue to progress until
she is legally blind and has affected some of her activities of daily living , Claimant

did not offer substantial evidence t hat Janice was dependent after she turned 18 due to

a “ disability ” as that term is used under the Act.

This Court has ruled:

To prove a disability, the claimant must show not merely physical impairment, but loss of earning power

. Coyne [ v. Workers’ Comp . Appeal Bd. (Villanova Univ.) ]

, 942 A.2d [939,] 945 n.7 [(Pa. Cmwlth. 2008)] ; Bissland v. Workmen ’ s Comp [

. ] Appeal B [ d. ] (Boyertown Auto Body Works),

. . . 638 A.2d 493, 495 ( [Pa. Cmwlth.] 1994); Somerset Welding & Steel [ v. Workmen’s Comp. Appeal Bd. (Le e) ]

, 650 A.2d [114,] 119 n.9 [(Pa. Cmwlth. 1994)]

.13 ‘ [F]or the purposes of receiving [WC] , ‘disability’ means loss of earning power , and thus although a claimant may suffer a

. . . physical disability, it is only if that physical disability occasions a los s of earnings that [ an individual ] will be ‘disabled’ under the meaning of the Act and will be entitled to receive compensation

. ’ Bissland, 638 A.2d at 495.

BJ ’ s Wholesale Club v. W orkers’ Comp. Appeal Bd. (Pearson) , 43 A.3d 559, 562

- 63

(Pa. Cmwlth. 2012) (emphasis added)

. 15 Here, Claimant offered no evidence relative
to whether and to what extent Janice’s RP affected her earning power such that Janice
was “dependent because of disability” after she turned 18 on March 15, 2016. 16 77

P.S. § 562

. Based upon our review, d rawing all reasonable inferences in Claimant’s

favor

, as we must, we hold that credible record evidence supports the WCJ’s

conclusion that Janice has a physical impairment that continued beyond her 18 th
birthday and likely will progressively worsen . However, because there was not
substantial evidence to support a conclusion that Janice’s RP makes it impossible for

her to earn an income, the Board erred in affirming the WCJ ’s conclu sion that Janice
is entitled to dependent death benefits after March 15, 2016.

15 Although BJ’s Wholesale Club and t he cases relied upon therein involved injured workers
rather than a deceased worker’s dependent, it is nevertheless applicable here, where S ection 307 of
the Act used the term disability without modification from its use in the rest of the Act.

In all ma tters involving statutory interpretation, we apply the Statutory Construction Act [of 1972 (Statutory Construction Act ) ] , 1 Pa.C.S. §§ 1501 [

- 1991 ]

, which directs us to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). To

a ccomplish that goal, we interpret statutory language not in isolation, but with reference to the context in which it appears.

Com monwealth v. Kingston , 143 A.3d 917, 922 ( Pa. 2016)

. Although the General Assembly could have defined disability in the spe cific context of S ection 307 of the Act differently, it did not do so.

16 Notably, two of the WCJ hearings took place before Janice’s 18 th birthday. The third hearing occurred just after her 18 th birthday. Therefore

, it is possible such evidence was not yet available.14 Accordingly, the Board ’s order is vacated and the Board is directed to

remand the matter to the W C J for a hearing to determine the extent , if any, of Janice’s
earning power.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Aqua America, Inc., : Petitioner :

:

v. :

: Workers’ Compensation Appeal : Board (Jermon Jeffers, d eceased), : No. 1831 C.D. 2017 Respondent :

O R D E R

AND NOW, this 4 th day of December , 201 8

, the Workers’
Compensation Appeal Board’s November 14, 2017 order is vacated, and the matter is
remanded for proceedings consistent with this opinion

.

Jurisdiction is relinquished.

___________________________ ANNE E. COVEY, Judge