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Kane v. Workers' Comp. Appeal Bd. (Glenshaw Glass Co.)

Commonwealth Court of Pennsylvania

June 25, 2015

William Kane, Petitioner
v.
Workers' Compensation Appeal Board (Glenshaw Glass), Respondent

Argued November 12, 2014

Appealed from No. A11-0923. State Agency: Workers' Compensation Appeal Board.2015

Lawrence R. Chaban, Pittsburgh, for petitioner.

Lawrence J. Baldasare, Pittsburgh, for respondent.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.

OPINION

Page 425

P. KEVIN BROBSON, JUDGE

Petitioner William Kane (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board), dated June 18, 2013, which reversed an order of a Workers' Compensation Judge (WCJ), thereby denying Claimant workers' compensation benefits. The WCJ had granted Claimant's reinstatement petition filed in September 2010 against Respondent Glenshaw Glass Company[1] (Employer) relating to a June 2, 1999 work-related injury. We now reverse and remand.

Claimant initially suffered a work-related injury to his right shoulder on March 21, 1991, while employed by Employer. Employer, through its then-insurer Argonaut Insurance (Argonaut), issued a notice of compensation payable, describing the injury as an " A/C separation," and paid Claimant total disability benefits at a maximum rate of $436.00 per week. (Reproduced Record (R.R.) at 17a.) Claimant later returned to his regular job, and Employer suspended Claimant's benefits.

On December 25, 1995, also while employed by Employer, Claimant suffered a work-related injury to his other shoulder, which was described as a " left shoulder strain/sprain." ( Id. ) Employer, which was self-insured at the time of the incident, issued a notice of compensation payable and paid Claimant total disability benefits at a maximum rate of $509.00 per week. Following two surgeries, Claimant returned to modified duty work with Employer.

Thereafter, in November 2000, Claimant filed a claim petition, alleging he suffered a new work-related injury to his right shoulder on June 2, 1999, and a reinstatement petition, alleging in the alternative that he suffered a recurrence of his 1991 injury on June 2, 1999. By decision and order dated March 23, 2001, WCJ Tobin determined that Claimant suffered a new injury to his

Page 426

right shoulder and not a recurrence of the 1991 injury. It appears that Chubb Insurance (Chubb) was Employer's insurance carrier for any incidents that occurred on June 2, 1999. WCJ Tobin also found that Claimant was totally disabled from June 3, 1999 through June 10, 1999, and partially disabled from June 11, 1999 through August 1, 1999. WCJ Tobin suspended Claimant's benefits as of August 2, 1999, because, following two surgeries on his right shoulder, Claimant returned to the same modified duty work for Employer. Total disability benefits were paid at the rate of $470.97 per week.

Petitioner worked with no loss of earnings between August 2, 1999, until November 2004, when Employer ceased operations and eliminated Claimant's job. Employer reinstated Claimant's total disability benefits for the 1995 left shoulder injury by supplemental agreement, effective November 25, 2004.[2]

On January 6, 2006, while still receiving total disability benefits for his 1995 left shoulder injury, Claimant filed a reinstatement petition for the 1999 right shoulder injury, alleging that his 1999 right shoulder injury again caused a decrease in earning power as of November 25, 2004. Claimant argued that because he had been performing modified duty work as a result of his 1999 right shoulder injury and his modified work ended, he was entitled to reinstatement of benefits for the 1999 injury. Claimant also took the position that such reinstatement should be suspended while he continued to receive benefits for the 1995 left shoulder injury.

By decision and order dated July 31, 2006, WCJ Parker denied Claimant's reinstatement petition on the basis that he was still receiving total disability benefits for his 1995 injury under the parties' supplemental agreement. ( Id. at 19a.) WCJ Parker also concluded that Claimant's benefits for the 1999 right shoulder injury " remain properly suspended," because Claimant continues to receive total disability benefits for the 1995 left shoulder injury. ( Id. ) Claimant appealed to the Board, which affirmed the WCJ's order. On appeal to this Court, we affirmed the decision of Board, but we did not foreclose the possibility of reinstatement of his 1999 right shoulder injury claim at some point in the future. See Kane v. Workers' Comp. Appeal Bd. (Glenshaw Glass Co. ), 940 A.2d 572 (Pa.Cmwlth. 2007) ( Kane I ), appeal denied, 598 Pa. 770, 956 A.2d 437 (Pa. 2008).

Thereafter, the parties entered into a Compromise and Release of the 1995 left shoulder injury, and on September 29, 2010, Claimant filed the subject reinstatement petition against Employer and its relevant insurer--Chubb. Through the reinstatement petition, Claimant seeks total disability benefits for the June 2, 1999 right shoulder injury, effective September 23, 2010--the date of the approval of the Compromise and Release. Claimant took the position that 1995 injury for which he was receiving total disability benefits (from Employer) has been resolved through the Compromise and Release, such that he is now entitled to total disability benefits for the 1999 injury. Employer responded that Claimant's reinstatement petition was barred by the 500-week limitations period contained in the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § § 1-1041.4; 2501-2708.[3]

Page 427

The matter was assigned to WCJ Cohen for consideration. As part of the proceedings before WCJ Cohen, the parties stipulated that no benefits had been paid on the 1999 work injury since August 1, 1999. WCJ Cohen considered only whether the payment for an unrelated work injury precludes the running of the 500-week statute of repose under Sections 413(a)[4] and 306(b) of the Act.[5] By decision and order dated May 11, 2011, WCJ Cohen granted Claimant's reinstatement petition and awarded a reinstatement of total disability benefits effective September 23, 2010. In so doing, WCJ Cohen concluded that Claimant's disability arising out of the 1999 right shoulder injury recurred on November 25, 2004, at the time Employer's plant closed. He further concluded that, as a matter of law, because benefits were suspended as a result of Claimant's receipt of total disability benefits for his 1995 left shoulder injury, the 500-week statute of repose under Section 413(a) of the Act was inapplicable.

Employer (and Chubb) then appealed to the Board, contending, in part, that the applicable 500-week period set forth in the Act and the doctrines of res judicata and collateral estoppel barred Claimant's reinstatement petition. By decision and order dated June 18, 2013, the Board reversed WCJ Cohen's order, concluding that the reinstatement petition was barred by the 500-week period set forth in Section 413(a) of the Act and that the doctrine of collateral estoppel prevented the re-litigation of issues already decided in Claimant's first reinstatement petition. It also held that the reinstatement petition was outside the three-year limitation period, because Claimant had not received indemnity benefits for his 1999 right shoulder injury since August 1, 1999.[6] Claimant then petitioned this Court for review.

On appeal,[7] Claimant argues that the Board erred in concluding that Claimant was collaterally estopped from seeking reinstatement for his 1999 right shoulder injury as a result of our decision in Kane I. Claimant also argues that the Board erred when it determined that Claimant's reinstatement petition based on his 1999 right shoulder injury was time-barred pursuant to Section 413(a) of the Act, when those benefits were suspended due to his receipt of benefits for the 1995 left shoulder injury.

First, we will address Claimant's argument that the Board erred in concluding that he was collaterally estopped from seeking reinstatement of benefits for his 1999 right shoulder injury as a result of this Court's decision in Kane I. As we explained in Weney v. Workers' ...


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