Wages Received for One Work Injury Can Extend the Statute to Reinstate for Another

Once PA workers’ compensation benefits are modified or suspended, such as by the injured worker resuming gainful employment, the injured worker has at least 500 weeks within which he or she can reinstate total disability benefits (if the disability related to the injury recurs). If the benefits had been modified (ie: not suspended), and partial disability payments continue to the end of the 500 week period, the time within which the injured worker can reinstate is extended to three years after the date of the last payment within those 500 weeks. But, like every rule, odd facts can create an exception.

The Commonwealth Court of Pennsylvania recently dealt with such a situation in Kane v. Workers’ Compensation Appeal Board (Glenshaw Glass). As so often happens in these cases, we are dealing with multiple injuries. We have a 1991 injury to the right shoulder, for which benefits were suspended. In 1995, the injured worker hurt his left shoulder, had two operations, and ultimately went back to modified duty work. In 1999, the injured worker suffered another injury to his right shoulder, and this was found by the Workers’ Compensation Judge (WCJ) to be an “aggravation,” not a “recurrence,” so it was found to be a new injury. Benefits were suspended August 2, 1999, since he went back to modified duty work after two surgeries on that shoulder. He then continued to work at that modified duty job until the employer went out of business in November, 2004.

The workers’ comp insurance carrier reinstated total disability benefits for the 1995 left shoulder injury at that point. This continued until 2010, when a settlement (“Compromise & Release”) was reached with regard to the 1995 work injury. Following the settlement, the injured worker filed a Petition to Reinstate, based on the 1999 right shoulder injury. Notably, a Petition for Reinstatement for the 1999 injury was denied prior to the 1995 injury being settled, since total disability benefits were already being paid based on the 1995 injury.

In this new Reinstatement Petition (the one filed after the 1995 injury was settled), the parties agreed benefits for the 1999 work injury had not been paid since 1999. The issue became whether the reinstatement now was beyond the 500 week limit (since, by the calendar, more than 500 weeks had passed). The WCJ granted the Petition for Reinstatement, finding 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.”

This decision, however, was reversed by the Workers’ Compensation Appeal Board (WCAB), who concluded, primarily, that the reinstatement petition was barred by the expiration of the 500-week period.

Commonwealth Court of Pennsylvania then reversed the WCAB, and agreed with the original conclusion of the WCJ. Taking a common sense approach, the Court observed that there were two separate disabling injuries involved, and one cannot simply be ignored. Receiving benefits for one of those injuries essentially tolled the time period for the other. Specifically, the Court explained:

“It is of utmost significance in this matter that Claimant suffered two totally disabling injuries, either of which would have entitled him to total disability benefits. Claimant, however, cannot receive benefits for both at the same time. In essence, the workers’ compensation system requires a claimant to ‘choose one injury’ and receive compensation for that totally disabling injury in lieu of receiving compensation for the other totally disabling injury at that time. Should circumstances change, however, such that the loss in earning power from that injury for which a claimant is receiving benefits resolves or lessens, it makes no logical sense to ignore the circumstance that the claimant would have been receiving benefits for one totally disabling injury had he not been receiving benefits for another. Here, because Claimant received compensation for one totally disabling injury (the 1995 injury) in lieu of receiving compensation for the other totally disabling injury (the 1999 injury), Claimant must be permitted to seek reinstatement under Section 413(a) of the Act within three years after the date of the most recent payment of compensation received in lieu of compensation for the 1999 injury, to which he otherwise would have been entitled.”

As you can see, these cases can get very complicated and fact-specific, highlighting the need to have representation by attorneys who are Certified as Specialists in the Practice of Workers’ Compensation Law in Pennsylvania, as are both of the attorneys with Brilliant & Neiman LLC.