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MARY SHIRLEY MOYER v. WORKMEN'S COMPENSATION APPEAL BOARD (W.F. HOFFORD (11/04/82)

decided: November 4, 1982.

MARY SHIRLEY MOYER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (W.F. HOFFORD, INC.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Mary Shirley Moyer v. W.F. Hofford, Inc., No. A-79876.

COUNSEL

George T. McKinley, Ozalas and McKinley, for petitioner.

Charles E. Wasilefski, Foulkrod, Peters & Wasilefski, for respondent, W.F. Hofford, Inc.

Judges Rogers, MacPhail and Doyle, sitting as a panel of three. Opinion by Judge Doyle. Judge MacPhail dissents.

Author: Rogers

[ 69 Pa. Commw. Page 531]

The claimant in this workmen's compensation case suffered a work-related injury on April 27, 1966. She received compensation under agreements for both total disability and partial disability for various periods of time between 1966 and 1975. She received a last payment of compensation pursuant to Section 306(b) of Workmen's Compensation Law, 77 P.S. § 512 relating to partial disability on August 16, 1975.

Section 306(h), 77 P.S. § 583, was added to the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, by Section 11 of the Act of December 5, 1974, P.L. 782 and became effective July 1, 1975. This provides as follows:

Any person receiving compensation under sections 306(a), 306(b), 306(c)(23), or section 307, as a result of an accident which occurred prior to the effective date of the amendatory act of January 17, 1968 (P.L. 6, No. 4) shall have the compensation rate adjusted to the level they would have received had the injury occurred on the effective date of the amendatory act of January 17, 1968 (P.L. 6, No. 4) and had the injured employe been earning wages equal to ninety dollary ($90) per week. The additional compensation shall be paid by the self-insured employer or insurance carrier making payment and shall be reimbursed in advance by the Commonwealth on a quarterly basis as provided in rules and regulations of the department. The payment of additional compensation shall be made by the carrier or self-insured employer only during those fiscal years for which appropriations are made to cover reimbursement.

[ 69 Pa. Commw. Page 532]

Pursuant to this enactment, the claimant's employer's insurance carrier paid her $236.68 on June 8, 1976.

On September 11, 1978, a date within three years from the payment of compensation on June 8, 1976 but more than three years after the next earlier payment, August 16, 1975, the claimant filed a petition for reinstatement of compensation, alleging that she was now totally disabled. In answer, the employer alleged that the petition was not filed within the three year statutory period after August 16, 1975, and was therefore untimely, citing Section 413(a) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.

A hearing was held before a referee, who dismissed the petition because, as he viewed the matter, the petition was not filed within three years after the most recent payment of compensation, that is, within three years from the payment made August 16, 1975. The Workmen's Compensation Appeal Board affirmed the referee's decision, writing:

     the additional compensation provided by [Section 306(h)] was to be paid by the employer or insurance carrier, but was to be reimbursed in advance by the Commonwealth. Obviously, such increased payments were actually payments by the Commonwealth to give the claimants additional compensation, and the ...


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