CONCURRING AND DISSENTING OPINION BY
Judge BERNARD L. McGINLEY.I concur with the majority’s conclusion that:
[T]he Court in Kane I [Kane v. Workers’ Compensation Appeal Board (Glenshaw Glass Company), 940 A.2d 572 (Pa. Cmwlth.2007), appeal denied, [598 Pa. 770] 956 A.2d 437 (Pa.2008) ] determined that issues surrounding the effect of the suspension of Claimant’s total disability benefits for his 1999 injury were not ripe for consideration, but that such issues may need to be litigated if and when Claimant’s disability benefits for his 1995 shoulder injury ceased. Thus, it cannot be said that the issue now before the Court was decided in Kane I.
Opinion at 429.
I respectfully dissent to the majority’s conclusion that “Claimant’s application for reinstatement was proper under Section 413(a) of the Act,’ because it was filed within three years after the date of the last payment of compensation for his 1995 injury, which Claimant received in lieu of compensation for the 1999 injury.”
I believe the Board correctly determined that the WCJ erred when she reinstated Claimant’s total disability benefits as a result of his 1999 injury.
... Section 413(a) also provides that where compensation has been suspended based on earnings equal to or greater than the pre-injury AWW [average weekly wage], disability benefits may be reinstated at any time during the period for which partial disability is payable. Pursuant to Sections 306(b), 77 P.S. § 512, partial disability benefits are payable for up to 500 weeks. For the purposes of calculating the 500 weeks related to Section 413(a), that period begins on the date that total disability benefits are initially suspended. Cytemps [Cytemp ] Specialty Steel v. WCAJB (Servey), 811 A.2d 114 (Pa.Cmwlth.2002). Also, any periods of suspension are included as part of those 500 weeks. Id. In other words, the 500 week period generally is not tolled during the time that disability benefits are suspended. Id.
It has also been held that when a claimant has two injuries that are each, in and of themselves, totally disabling, a claimant may receive total disability benefits for only one injury, and disability benefits for the second injury should be suspended until the entitlement to benefits for the first injury changes. Kane (citing L.E. Smith Glass Co. v. WCAB (Clawson) [571 Pa. 594], 813 A.2d 634 (Pa.2002)).
After careful review, we must conclude that the WCJ erred in reinstating Claimant’s total disability benefits related to his 1999 injury. As noted, reinstatement petitions must generally be filed within three years of the final payment of disability compensation related *434to the work injury. Section 413(a), 77 P.S. § 772_ However, the Act provides an exception in the event that the claimant’s disability benefits have been suspended due to a return to work without wage loss, in which case the claimant has 500 weeks from the date that the total disability benefits were initially suspended. Section 306(b), 77 P.S. § 512; Cytemps.
Here, there is no dispute that Claimant received his last payment of disability benefits related to the 1999 injury on August 1,1999, and his initial suspension of those benefits began on August 2, 1999. Therefore, if those benefits were suspended for any reason other than a return to work without wage loss, he had to file his reinstatement petition within three years of August 1, 1999, which ended on August 1, 2002. If those benefits were suspended based on a return to work without wage loss, he had 500 weeks from August 2, 1999 to file that Petition, which ended on March 2, 2009. Claimant filed the present Reinstatement Petition on September 29, 2010, which is outside both the three-year and 500-week periods.
Consequently, the only way that Claimant’s Reinstatement Petition would not he time barred by Section 4,13(a) is if neither the three-year or the 500^week periods applied or if one of those periods were somehow tolled by the fact that Claimant’s disability benefits related to the 1999 injury should have been suspended based solely on his receipt of disability benefits for the 1995 injury rather than based on his initial return to work without wage loss on August 2, 1999. We cannot conclude either that the ongoing suspension of Claimant’s disability benefits for the 1995 injury, or that the Act provides for any tolling of the time limits provided in Section 413(a) under the present circumstances. Board’s Decision, June 18, 2013, at 5-6. (Emphasis added.)
I would affirm the Order of the Board.