The opinion of the court was delivered by: President Judge Leadbetter
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE JAMES R. KELLEY, Senior Judge, HONORABLE KEITH B. QUIGLEY, Senior Judge.
Patricia Reutzel (Claimant) petitions for review of the order of the Workers' Compensation Appeal Board (Board) that, inter alia, affirmed the decision of the Workers' Compensation Judge (WCJ) granting in part and denying in part her petition to reinstate partial disability benefits. In this appeal, Claimant raises the novel issue of whether her benefits for partial disability resulting from two separate work injuries ran concurrently or consecutively for the purpose of the 500-week limitation on partial disability benefits under Section 306(b)(1) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 512(1).
The relevant facts are undisputed. While working for Allegheny General Hospital (Employer) as a registered nurse, Claimant sustained a work-related right shoulder injury on February 24, 1996. Pursuant to a notice of compensation payable, which described her injury as "rotator cuff tendonitis w/ bicipital tendon," she received weekly total disability benefits of $527 based on her average weekly wage of $1354.69. Stipulation ¶ 1; Reproduced Record at 45a. She later returned to work with a restriction of working fewer hours and received partial disability benefits based on her reduced earnings. On May 30, 1997, she sustained another work injury to her low back but continued to work with the same restriction imposed for the February 24, 1996 injury. In 2003, she underwent low back surgery to treat the May 30, 1997 injury and received weekly total disability benefits of $527. However, although her average weekly wage for the May 30, 1997 injury was $1354.69, it yielded a higher weekly compensation rate of $542 at that time. Three months after the surgery, she returned to work with the same work-hour restriction imposed before the surgery and continued to receive partial disability benefits. In a subsequent decision issued in 2004, the WCJ recognized the May 30, 1997 injury as work-related, and the Board affirmed. No further appeal was filed.
As of June 1, 2006, Claimant received 500 weeks of partial disability benefits. Employer then stopped paying her benefits, claiming that she was not entitled to further benefits under Section 306(b)(1) of the Act, which sets forth the following compensation schedule for partial disability:
For disability partial in character caused by the compensable injury or disease (except the particular cases mentioned in clause (c)) [77 P.S. § 513 (compensation schedule for specific losses)] sixty-six and two-thirds per centum of the difference between the wages of the injured employe . and the earning power of the employe thereafter; but such compensation shall not be more than the maximum compensation payable.*fn1
This compensation shall be paid during the period of such partial disability . but not more than five hundred weeks. Should total disability be followed by partial disability, the period of five hundred weeks shall not be reduced by the number of weeks during which compensation was paid for total disability. [Emphasis added.]
Section 306(a.2)(7) of the Act, added by Section 4 of the Act of June 24, 1996, P.L. 350, 77 P.S. § 511.2(7), also provides that "[i]n no event shall the total number of weeks of partial disability exceed five hundred weeks for any injury or recurrence thereof, regardless of the changes in status in disability that may occur." (Emphasis added.)
On July 11, 2006, Claimant filed a reinstatement petition, alleging that she received 500 weeks of partial disability benefits only for the February 24, 1996, injury and that she was entitled to another 500 weeks of partial disability benefits for the May 30, 1997, injury. Employer responded in its answer that she received partial disability benefits for both injuries. She thereafter resigned from employment with Employer and began working for HCR Manor Care, initially three days a week and eventually five days a week earning $1000 a week.
The WCJ found no factual or legal basis for Claimant's contention that her 500-week partial disability benefits for the 1997 injury were suspended until she exhausted 500 weeks of partial disability benefits for the 1996 injury. The WCJ stated:
The 500-week limitation imposed by the legislature on the receipt of partial disability is clearly intended to limit the period after an injury during which an individual[,] who can work despite some continuing impairment from that injury, will be economically supported as to earnings. . The parties agree that the claimant was partially disabled due to both injuries from the date of the second injury, and it is from her first partial disability payment thereafter that the 500 weeks begins to run.
WCJ's Decision at 2 (emphasis in original) The WCJ determined that Claimant's entitlement to partial disability benefits expired when she received 500 weeks of partial disability benefits after the 1997 work injury, not including total disability benefits received after the 2003 low back surgery. The WCJ further determined that Employer paid disability benefits at an incorrect compensation rate after the 1997 injury. The WCJ accordingly granted in part and denied in part the reinstatement petition and assessed a penalty against Employer in the amount of 50% of the difference between the correct amount of benefits and the actual amount paid to Claimant. The WCJ also concluded that Employer's contest was reasonable. Both parties appealed the WCJ's decision.
The Board affirmed the WCJ's decision on the reinstatement petition. The Board stated: "The Act clearly indicates that the 500 week period starts with the commencement of partial disability. Therefore, Claimant has two periods of partial disability, and the result is not cumulative, but concurrent." Board's Opinion at 2-3. The Board also agreed that Employer's contest was reasonable. The Board reversed the WCJ's imposition of a penalty, ...