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Cytemp Specialty Steel v. W.C.A.B. (Cervey)No. 1516 C.D. 2002 (Pa.Cmwlth. 2002) Decision filed November 27, 2002

I. CASE FACTS: The claimant was injured on February 27, 1990 and was off work for six (6) months receiving total disability benefits. The claimant returned to work on June 23, 1990 and worked under a suspension agreement for approximately three years. The claimant's benefits were suspended for 161-2/7 weeks. On August 30, 1993, the claimant's disability recurred, and he became entitled to partial disability benefits. The claimant received partial disability benefits for approximately five (5) years, at which time the defendant/employer filed a Modification Petition attempting to clarify whether periods of suspension could be counted toward the claimant's maximum 500 weeks of partial disability benefit receipt. At an October, 1998 hearing, the parties stipulated that the claimant would only be entitled to 71 more weeks of benefits if the defendant/employer's theory was accurate. The claimant argued that only periods of partial disability could be counted toward satisfying the 500 weeks, and that he was entitled to another 232-6/7 weeks of partial disability benefits. The claimant specifically argued that the three year period wherein his benefits were suspended should not count toward his partial disability entitlement.

The WCJ ruled in favor of the employer finding that the period of suspension could be counted and that the claimant was only entitled to 71 more weeks of benefits. The W.C.A.B. and Commonwealth Court reversed the WCJ. The W.C.A.B. held that if a claimant seeks partial disability benefit payments within the 500 week period following a suspension, the running of the statute of limitations is tolled. The W.C.A.B. further interpreted Section 306(b) of the Act to entitle the claimant to 500 weeks of partial disability benefits overall.

II. CASE HOLDING: The Commonwealth Court affirmed and the W.C.A.B. found that Section 306(b) of the Act does not require the claimant to receive partial disability benefits over a consecutive 500 week period. To the contrary, the Court noted that the period of 500 weeks shall not be reduced by the number of weeks during which compensation benefits are suspended.

III. PRACTICAL HANDLING ADVICE: The claims examiner should be very careful to track the statute of limitations surrounding the claimant's entitlement to partial disability benefits. Following a suspension agreement, the claims examiner should be certain that a claimant does not attempt to file a Reinstatement Petition after a 500 week period has expired. The claims examiner should also keep track of the periods of partial disability benefits paid to the claimant and note that it is not necessary for the claimant to receive a consecutive period of 500 weeks of partial benefits or for only 500 weeks to expire after the claimant begins receives his/her initial disability benefit payment.