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Hashagen v. Workers' Compensation Appeal Board8/23/2000
Submitted: March 24, 2000
OPINION BY JUDGE KELLEY
In these consolidated cross petitions for review, Clinton Hashagen (Claimant) and Air Products & Chemicals, Inc. (Employer) petition for review of an order of the Workers' Compensation Appeal Board (Board) granting Employer's appeal and reversing the decision of the Workers' Compensation Judge (WCJ). The WCJ's decision granted Claimant's reinstatement petition effective April 15, 1996, ordered the reinstatement of Claimant's temporary total disability benefits, dismissed Claimant's modification petition, and denied Employer's termination petition.
Employer employed Claimant from 1957 through 1984 in various capacities, but primarily as a welder. After he left his employment with Employer, Claimant was self-employed as an independent trucker from 1985 through 1995.
Pursuant to a WCJ decision dated February 27, 1988, Claimant was awarded partial disability benefits effective August 28, 1985 for work related lung disease. Claimant received 500 weeks of partial disability benefits beginning August 28, 1985 and ending on March 8, 1995. On April 11, 1996, Claimant filed a modification petition alleging that he had become totally disabled as of April 10, 1996 due to his work related lung condition. On April 15, 1996, Claimant filed a reinstatement petition alleging that he had become totally disabled as of March 28, 1996 due to his work related lung condition. Claimant alleged therein that his condition had progressed and worsened to a point where he was no longer capable of performing any kind of employment. Employer filed timely answers to both petitions denying the allegations.
On November 10, 1997, Employer filed a termination petition alleging that Claimant had fully recovered from his work-related condition as of August 15, 1996. Claimant filed a timely answer to the termination petition denying the allegations contained therein. The petitions were consolidated and hearings before a WCJ ensued.
Based on the evidence presented, by decision dated June 22, 1998, the WCJ granted Claimant's reinstatement petition effective April 15, 1996, ordered the reinstatement of Claimant's temporary total disability benefits, dismissed Claimant's modification petition, and denied Employer's termination petition. Employer filed a timely appeal of the WCJ's decision with the Board.
The sole issue addressed by the Board was whether Claimant's petitions were time barred by Sections 413 and 306(b) of the Workers' Compensation Act (Act) pursuant to this Court's decision in Stewart v. Workers' Compensation Appeal Board (PA Glass Sand), 724 A.2d 403 (Pa. Cmwlth. 1999), reversed, Pa. , A.2d (No. 244 M.D. Appeal Dkt 1999, filed July 14, 2000). Based on Stewart, the Board reversed the WCJ's decision and granted Employer's appeal. These cross petitions for review followed.
In his appeal, Claimant raises three issues:
1. Whether this Court's decision in Stewart directly impacted upon an employee's substantive right to receive worker's compensation benefits and therefore, should not have been applied retroactively;
2. Whether the Board erroneously concluded that the statute of limitations set forth in Section 413 of the Act barred Claimant's petition for reinstatement because he did not seek reinstatement within the 500 week period that he was receiving partial disability benefits; and
3. Whether there was substantial competent evidence to support the WCJ's finding that Claimant's condition has worsened and is affecting his earning power causing total disability.
Section 306(b) of the Act provides that compensation shall be pa
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