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Kiser v. Workers' Compensation Appeal Board10/31/2002
Harry G. Kiser (Claimant) appeals from an order of the Workers' Compensation Appeal Board (Board) which affirmed the decision of the workers' compensation judge (WCJ) denying Claimant's Petition to Reinstate Compensation Benefits (Reinstatement Petition), Petition to Review Compensation Benefits (Review Petition) and Petition for Penalties (Penalty Petition). We affirm in part, vacate in part and remand for proceedings consistent with this opinion.
On September 22, 1988, Claimant sustained a work-related injury while in the course and scope of his employment with Weleski Transfer, Inc. (Employer). Pursuant to a Notice of Compensation Payable dated October 27, 1988, which described Claimant's injury as a "lumbar strain," Claimant received workers' compensation benefits for total disability from October 10, 1988 through to and including October 17, 1988. Claimant's benefits were suspended as of October 18, 1988, when he returned to work in a light-duty position, at wages equal to or greater than his pre-injury wage. Over the years, Claimant's disability status periodically changed. Pursuant to various supplemental agreements executed by the parties, Claimant's benefits were either suspended when Claimant returned to light duty work with no loss of earning power or reinstated when Claimant's disability recurred during the period from October 18, 1988 through August 22, 1999.
On March 6, 2000, Claimant filed a Reinstatement Petition alleging that he was entitled to return to total disability as of March 8, 2000 due to a "worsening of condition and injury causing decreased earning power given that Claimant is disabled from performing his regular job." Employer filed an answer denying the allegations and averred that Claimant's Reinstatement Petition was untimely as the petition was not filed within 500 weeks of the initial suspension of October 18, 1988 as required by the Workers' Compensation Act (Act).
In addition to the Reinstatement Petition, Claimant filed Review and Penalty Petitions, alleging that Employer failed to pay partial disability benefits for various periods from 1989 through 1996 in the amount of $21,320.61. Claimant requested the payment of underpaid partial disability benefits plus statutory interest at 10%, penalties at 50% and attorney fees. Employer filed an answer to both petitions denying the material allegations contained therein. Hearings before the WCJ then ensued on all the petitions. At the hearing, the WCJ and the parties agreed that the parties would not submit deposition or live medical or other testimony until the WCJ issued a preliminary ruling as to whether Claimant's petitions were time-barred, specifically, whether Claimant could prevail in a post five hundred week case under any theory or upon any medical showing.
Based upon the evidence presented, the WCJ found that various periods between October 18, 1988 through December 5, 1988; June 13, 1989 through November 28, 1990; January 18, 1991 through August 12, 1999; and August 23, 1999 through March 8, 2000, were considered to be periods of suspension of Claimant's benefits. The WCJ found that Claimant's combined periods of disability and suspension totaled 529 weeks. The WCJ found that Claimant's petitions were filed after the statutory 500-week period for partial disability had expired.
The WCJ made the following conclusions. The calculation of the 500-week period in which compensation for total disability or partial disability could resume starts on the date that benefits were first suspended or the date that Claimant received benefits for partial disability. Periods of suspension are included with periods where partial disability was paid in calculating the 5
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