Statute of Repose/Limitations Inapplicable when Claimant Seeking Reinstatement after Termination of Benefits for Second, Unrelated Injury
Kane v. WCAB (Glenshaw Glass), No. 1172 C.D. 2013, filed June 25, 2015
Factual and Procedural Background
The claimant suffered a work-related right shoulder injury in 1991, which was accepted by NCP. Subsequent to the injury, the claimant returned to his regular job and benefits were suspended. In 1995, claimant suffered a work injury to his left shoulder, while still employed with the same employer. The employer had an insurance carrier at the time of the first injury, but was self insured at the time of the second. After the second injury, claimant returned to work in modified duty. In 2000, the claimant filed a Claim Petition alleging a new right shoulder injury in 1999, and alternatively a reinstatement petition alleging a recurrence of the 1991 injury. The WCJ ultimately decided that the claimant had suffered a new injury in 1999 rather than a recurrence (employer had a new insurance carrier at the time of this third injury, different from the one they had in 1991 and was no longer self insured). Claimant was also awarded indemnity payments for a closed period, as he had ultimately returned to work in the same modified duty position later in 1999.
In 2004, employer ceased operations and eliminated claimant’s job, resulting in employer’s voluntary reinstatement of claimant’s indemnity benefits for the 1995 left shoulder injury via supplemental agreement. Although he was receiving TTD for the left shoulder injury, claimant filed a reinstatement petition for the 1999 right shoulder injury, alleging a decrease in earning power as of the date his job had been eliminated. During litigation, claimant took the position that he was entitled to reinstatement due to performance of modified duty as a result of the 1999 right shoulder injury, but that the reinstatement should be suspended for so long as he received benefits for the 1995 left shoulder injury. The WCJ denied the reinstatement petition on the basis that the claimant was receiving TTD for the 1995 injury, but also concluded that the right shoulder benefits remained properly suspended because he was receiving TTD for the 1995 injury. The WCAB and Commonwealth Court affirmed this decision.
In 2010, claimant and employer entered into a C&R for the 1995 left shoulder injury, and shortly thereafter claimant filed a reinstatement petition for the 1999 right shoulder injury. He sought reinstatement of benefits under the 1999 injury effective the date the C&R was approved. Employer argued that the reinstatement petition was barred by the 500-week limitations period of the Act. The parties stipulated during litigation that no benefits had been paid on the claim since August 1, 1999, so the WCJ only had to decide whether payment for an unrelated injury precluded the 500 week statute of repose from running. The WCJ concluded that his disability from the 1999 shoulder injury had recurred in 2004 when the plant closed, and that as a matter of law the 500 week statute of repose was inapplicable since benefits were only suspended on the 1999 injury because of claimant’s receipt of benefits for the 1995 injury. Employer appealed the WCJ’s grant of the reinstatement petition, and the WCAB reversed the order based on the 500 week statute of repose, the 3 year statute of limitations, and that collateral estoppels prevented the re-litigation of these issues previously decided in the first reinstatement petition.
Commonwealth Court Decision
The Commonwealth Court reversed the Board and reinstated the WCJ’s decision. The Court agreed with claimant that collateral estoppel was inapplicable here that the criteria for collateral estoppels were not satisfied, as the issues were not identical. The issues were not identical because of the change in circumstances for considering whether benefits should be reinstated (claimant was no longer receiving TTD benefits for a different injury). Additionally, they noted that in their previous decision on the first reinstatement petition, the Court had reserved the ability to revisit the issue as it was not ripe for consideration at that earlier time. The Court had permitted re-litigation of the issue if and when the TTD for the 1995 injury ceased. The Commonwealth Court referred to the Supreme Court’s decision in Clawson v. WCAB when that court had recognized that the injury for which a claimant was receiving benefits could resolve at some point in the future, and that that claimant was not receiving benefits for the second injury only because he was receiving benefits for the first. The Supreme Court had attempted to preserve the claimant’s benefits for the second injury for the future in light of those circumstances. The Commonwealth Court pointed out that in this case, they had not denied the prior reinstatement petition for lack of disability, but only because of the receipt of benefits for the earlier injury. They had also seen the possibility that claimant would be entitled to reinstatement of benefits for the 1999 injury, and had preserved for future consideration the issue of whether the running of the 500 week period should be tolled.
The Commonwealth Court held that the Board had applied Clawson in a manner not intended by the Supreme Court, and found it dispositive that claimant had suffered two totally disabling injuries. Either of those injuries by itself would have entitled him to TTD benefits, but he could not receive benefits for both simultaneously and therefore had to choose one to receive compensation for. The Court stated it made no sense to ignore the fact that the claimant would have been receiving benefits for one injury but for the other in the event the injury for which he is receiving benefits resolves or lessens. As such, the Court held that claimant was permitted to seek reinstatement under Section 413(a) of the Act within three years of the date of the most recent payment of compensation received in lieu of compensation for the injury under which he is seeking compensation, as it was compensation to which he otherwise would have been entitled. (So, as long as claimant filed within 3 years of the last payment of benefits under the 1995 injury, he was within the statute of limitations.)
The Court did note that it was important in this case that claimant’s suspension of benefits for the 1999 injury following employer’s close of business was never based on a recovery that allowed him to return to employer at his pre-1999 injury wages. It is unclear how significant this statement could be in future cases where the only difference in facts is a suspension of benefits for the injury under which a claimant seeks reinstatement was based on a return to work at full duty with no loss of wages.
Judge McGinley filed a dissenting opinion in which he stated that claimant’s reinstatement petition should have been time barred under Section 413(a). He would have affirmed the Board under the principle that a reinstatement petition was not time barred only if neither the 3 year or 500 week periods applied or if one of those periods was tolled by the fact that disability benefits for the 1999 injury should have been suspended based solely on his receipt of benefits for the 1995 injury. Since they were suspended based on his initial return to work without wage loss, the periods were not tolled and the petition was time barred.