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Hashagen v. Workers' Compensation Appeal Board8/23/2000
id during the period of partial disability but for not more than 500 weeks. Section 413 of the Act provides, in relevant part, as follows:
A . . . may, at any time, modify, reinstate, suspend, or terminate . . . an award of the department or its , upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased . . . . 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 . . . . : Provided, That, except in the case of eye injuries, no . . . 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. . . . And provided further, That where compensation has been suspended because the employe's earnings are equal to or in excess of his wages prior to the injury that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury.
In Stewart, this Court addressed the issue of whether a claimant's modification petition was untimely under Section 413 of the Act when the petition was not filed until five months after the claimant had received the entirety of his 500-week statutory remedy of partial disability benefits, pursuant to Section 306(b) of the Act. This Court held that total disability benefits were not available to the claimant because Section 413(a) deprives a claimant of eligibility to seek modification or reinstatement under any circumstances following the expiration of the maximum period allowed for the receipt of compensation for partial disability under Section 306(b). However, since the filing of these cross-petitions for review with this Court in this matter, our Supreme Court has reversed this Court's decision in Stewart. See Stewart v. Workers' Compensation Appeal Board (Pa. Glass Sand), Pa. , A.2d (No. 244 M.D. Appeal Dkt. 1999, filed July 14, 2000). Therein, our Supreme Court holds that, pursuant to Section 413(a) of the Act, modification or reinstatement may be sought within three years of the final payment after exhaustion of the 500 weeks of partial disability benefits. Stewart, slip op. at 5-10, Pa. at , A.2d at .
In light of our Supreme Court's reversal of our decision in Stewart, we conclude that Board erred by holding that Claimant's petitions were time barred by Sections 413 and 306(b) of the Act. As stated previously herein, the Board only addressed the issue of whether Claimant's petitions were time barred and did not address the other issues raised by Employer. Specifically, whether the WCJ's decision was based upon substantial and competent evidence of record. Accordingly, we reverse the Board's order and remand this matter to the Board to address the substantive issues raised by Employer in its appeal to the Board.
ORDER
AND NOW, this 23rd day of August, 2000, the order of the Workers' Compensation Appeal Board in the above captioned matter at No. 2574 C.D. 1999 is reversed and this matter is remanded for proceedings consistent with the foregoing opinion. The petition for review filed by Air Products & Chemicals, Inc. at 2650 C.D. 1999 is quashed.
Jurisdiction relinquished.
JAMES R. KELLEY, Judge
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