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Dorvilus v. Workers' Compensation Appeal Board (Cardone Industries)

Commonwealth Court of Pennsylvania

January 5, 2018

Wilner Dorvilus, Petitioner
v.
Workers' Compensation Appeal Board (Cardone Industries), Respondent

          Submitted: June 30, 2017

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JOSEPH M. COSGROVE, Judge [1]

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE [2]

         Wilner Dorvilus (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) dismissing his reinstatement petition as untimely and improvidently filed. In doing so, the Board affirmed a decision of the Workers' Compensation Judge (WCJ) that Claimant was not eligible to seek a reinstatement of disability compensation because it had been adjudicated that his work injury did not cause a loss of earning power. Accordingly, Claimant could not seek a "reinstatement" of benefits to which he was never entitled. After review, we affirm.

         On November 12, 2009, Claimant filed a claim petition alleging that he had sustained a work injury two months earlier while packing machine parts onto a cart. While packing his cart, he was struck in the lower back by another cart. Claimant sought medical and disability compensation from Cardone Industries (Employer). After a hearing, the WCJ granted the claim petition, concluding that Claimant had sustained a lumbosacral strain and sprain that resulted in wage loss as of September 18, 2009, and ongoing.[3] Employer appealed to the Board, and it affirmed the WCJ's determination that Claimant sustained a work injury. However, the Board reversed the WCJ's "award of disability benefits." Board Adjudication (7/31/2013) at 10; Reproduced Record at 20a (R.R. ___).

         Claimant petitioned for this Court's review, and we affirmed the Board. Dorvilus v. Workers' Compensation Appeal Board (Cardone Industries), (Pa. Cmwlth., No. 1460 C.D. 2013, filed March 7, 2014). Claimant petitioned for allowance of appeal to the Pennsylvania Supreme Court, and it was denied. Dorvilus v. Workers' Compensation Appeal Board (Cardone Industries), 166 A.3d 1238 (Pa. 2017).

         On November 26, 2013, Employer filed a termination petition asserting that Claimant had fully recovered from his work injury. The WCJ denied the petition, concluding that Claimant established a continuing need for medical treatment for the accepted work injury of his lumbosacral strain and sprain.

         On May 5, 2015, Claimant filed a reinstatement petition alleging his work injury had worsened and caused a loss of his earning power as of June 26, 2013. Employer moved to dismiss the reinstatement petition as barred by the doctrines of collateral estoppel and res judicata. The WCJ denied Employer's motion. Employer then moved to dismiss the petition as time barred by Section 413(a) of the Workers' Compensation Act (Act).[4]

         Section 413(a) of the Act limits the time period for seeking a reinstatement of compensation. Section 413(a) states, in relevant part, as follows:

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 notice of compensation payable, agreement or award shall be reviewed, or modified, or reinstated, unless a petition is filed with the department within three years after the date of the most recent payment of compensation made prior to the filing of such petition.

77 P.S. §772 (emphasis added). The WCJ granted Employer's motion and dismissed Claimant's reinstatement petition. The Board affirmed, and Claimant petitioned for this Court's review.[5]

         On appeal, Claimant argues that the Board erred. Claimant observes that his last payment of disability compensation was made on July 21, 2013, and he filed his reinstatement petition on May 8, 2015, which was "within three years after the date of [his] most recent payment of compensation." 77 P.S. §772. This satisfies the requirements of Section 413(a) of the Act.

         Employer responds that it has been adjudicated that Claimant was not entitled to any wage loss compensation. That he was paid disability compensation benefits to which he was not entitled is irrelevant to the three-year deadline in Section 413(a) of the Act for filing a reinstatement petition.

         An award of disability compensation requires the claimant to establish a causal connection between a work injury and his loss of earning power. Cardyn v. Workmen's Compensation Appeal Board (Heppenstall), 534 A.2d 1389, 1390 (Pa. 1987). Section 413(a) of the Act authorizes the reinstatement of suspended benefits where it is shown ...


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