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FALLS-OVERFIELD VOCATIONAL SCHOOL DISTRICT v. DAVIS (03/06/73)

decided: March 6, 1973.

FALLS-OVERFIELD VOCATIONAL SCHOOL DISTRICT
v.
DAVIS, ET AL.



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gwendolyn J. Davis v. Falls-Overfield Vocational School District, No. A-65420.

COUNSEL

Joseph A. Murphy, with him John R. Lenahan and Lenahan, Dempsey & McDonald, for appellant.

William J. Oliver, with him Oliver, Price and Rhodes, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson.

Author: Wilkinson

[ 8 Pa. Commw. Page 64]

The facts of this Workmen's Compensation case have been stipulated and are therefore not in dispute. As a result of injuries to her back, suffered in an accident on September 10, 1963, claimant-appellee received compensation for total disability under an agreement made on October 21, 1963. This was subsequently modified to partial disability, also by agreement, on June 6, 1964. Thereafter, payments were made in accordance with the agreement until the end of the statutory period of 350 weeks for partial disability payments. Claimant-appellee received her final payment under the agreement on February 18, 1971.

On March 31, 1971, forty-one (41) days after the date of the most recent payment of compensation, claimant-appellee filed a petition for reinstatement of an award of total disability. The employer-appellant stipulated that claimant-appellee was totally disabled and the Workmen's Compensation Appeal Board so found in granting the petition for reinstatement. Employer-appellant's only contention now is that the petition was not filed in time.

The only issue before us, therefore, is whether a petition for reinstatement, based upon a recurrence of disability, filed within two years of the most recent payment of compensation but after the expiration of the 350-week period for partial disability, is timely under Section 413 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 772. We hold that it is.

[ 8 Pa. Commw. Page 65]

For the entire period, relevant to the present case, Section 413 provided in pertinent part:*fn1 "The board, or referee designated by the board, may, at any time, modify, reinstate, suspend, or terminate an original or supplemental agreement or an award, upon petition filed by either party with such board, upon 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. Such modification, reinstatement, suspension, or termination shall be made as of the date upon which it is shown that the disability of the injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or upon which it is shown that the status of any dependent has changed: Provided, That, except in the case of eye injuries, no agreement or award shall be reviewed, or modified, or reinstated, unless a petition is filed with the board within two years after the date of the most recent payment of compensation made prior to the filing of such petition :" . . . (Emphasis supplied.)

Appellant argues that, notwithstanding claimant-appellee's apparent compliance with the statute, the petition is untimely because it was not filed within the period for which compensation was payable; in this case, 350 weeks for partial disability under the second agreement.

Claimant-appellee's position, and that advanced by the Board in support of its order, is that the filing was proper under the two-year limitation of Section 413. In the alternative, adopting employer-appellant's reasoning as to timeliness, claimant-appellee and the Board contend that "the duration of ...


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