IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donna DiMezza, :

Petitioner :

 :

v. : No. 90 C.D. 2015

 : SUBMITTED: July 10, 2015

Workers’ Compensation Appeal :

Board (Prison Health Services), :

Respondent :

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE LEADBETTER FILED: November 3, 2015

Claimant, Donna DiMezza, petitions for review of an order of the 

Workers’ Compensation Appeal Board (Board) that affirmed the decision of the 

Workers’ Compensation Judge (WCJ) to deny her April 2013 petition to reinstate 

workers’ compensation benefits on the ground that the petition was untimely under 

the three-year statute of limitations found in Section 413(a) of the Workers’ 

Compensation Act (Act).

1

 We affirm.

In September 2007, Claimant sustained a work-related injury when 

she slipped and fell on a wet floor while working as a nurse for Employer Prison 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.
2

Health Care Services.2 Employer issued a temporary notice of compensation 

payable, describing the injury as a hip contusion and providing for the payment of 

workers’ compensation benefits. Subsequently, the parties stipulated that Claimant

also had sustained a lower-back injury as a result of the incident. In May 2009, 

WCJ Michael Rosen granted Employer’s termination petition as of March 27, 

2008, accepting the testimony of Richard Jay Levenberg, M.D. that, as of his 

March 2008 examination, Claimant had fully recovered from her “sprain and strain 

and contusion of the spine.” DiMezza v. Workers’ Comp. Appeal Bd. (Prison 

Health Care Servs.), (Pa. Cmwlth., No. 2349 C.D. 2011, filed June 4, 2012), slip

op. at 4. Claimant appealed to the Board, but before it could issue a decision, she

filed a January 2010 rehearing petition seeking to submit after-acquired medical 

evidence generated in 2009. Id.

In August 2010, the Board affirmed the WCJ’s decision granting 

Employer’s termination petition, without addressing Claimant’s January 2010 

rehearing petition. Claimant did not appeal from the Board’s decision, instead 

filing a June 2011 rehearing petition seeking to introduce records from an April 

2011 spinal fusion. Id. at 4-5. In December 2011, the Board denied Claimant’s

request for a rehearing, stating that the evidence that she sought to introduce was 

tantamount to “an attempt to strengthen weak proofs already presented, particularly 

as it does not appear that this evidence would refute the WCJ’s finding that [she] 

was fully recovered from her work injury in 2008.” Id. at 5. Claimant filed a

 

2 Our summary is derived, in part, from a previous memorandum opinion involving the same 

parties: DiMezza v. Workers’ Compensation Appeal Board (Prison Health Care Services), (Pa. 

Cmwlth., No. 2349 C.D. 2011, filed June 4, 2012).
3

January 2012 petition for review with this Court, challenging the Board’s denial of 

her rehearing petition.

While Claimant’s 2012 appeal to our Court was pending, she filed a

January 2012 reinstatement petition. Employer filed an answer, alleging that the

reinstatement petition was time barred. In a May 2012 decision, WCJ David Slom 

1) found that Claimant’s counsel withdrew the reinstatement petition at a February 

2012 hearing, pending the outcome of litigation in our Court; and 2) marked the

reinstatement petition withdrawn without prejudice. Supplemental Reproduced 

Record (S.R.R.) at 38a. In June 2012, this Court affirmed the Board’s December 

2011 order denying Claimant’s June 2011 rehearing petition, concluding that the 

Board did not abuse its discretion. DiMezza, slip op. at 7.

Claimant filed a second reinstatement petition in April 2013, alleging 

a worsening of her condition and a recurrence of her work injury as of March 29, 

2009. In August 2013, WCJ Andrea McCormick dismissed Claimant’s second

reinstatement petition, with prejudice. WCJ McCormick concluded that, in order 

to have been timely, Claimant would have had to have filed it in May 2012, three 

years after the date of circulation of WCJ Rosen’s May 2009 decision granting 

Employer’s termination petition. In January 2015, the Board affirmed. Claimant’s 

petition for review followed.

Claimant presents two issues for review, but we consider only the 

first:

3

“Whether Claimant’s constitutional rights were [violated where her January 

 

3

In light of the fact that Claimant did not file a rehearing petition in the present litigation, 

we decline to address her second issue: “[Whether] [t]he Board abused its discretion in failing to 

reverse the [WCJ], where the applicable case law permits a withdraw without prejudice to toll 

the statute of limitations pending appeal of an underlying claim to avoid duplicate litigation, and 

a hearing on the merits should be awarded ‘in the interests of justice.’” Claimant’s Brief at 3.
4

2012] Reinstatement Petition was filed within the statute of limitations to toll the 

statute of limitations and withdrawn ‘without prejudice,’ to avoid duplicate 

litigation pending appeal to the Commonwealth Court of an underlying claim, and 

then [WCJ] McCormick dismissed [the April 2013 reinstatement petition] because 

the Court issued its decision after the three year statute of limitation[s] had run?” 

Claimant’s Brief at 3. In addressing Claimant’s arguments, we emphasize that the 

reinstatement petition that WCJ McCormick dismissed as untimely was the one 

filed in April 2013, which was the only one before her for disposition. In addition, 

the statute of limitations for filing such petitions is found Section 413(a) of the Act, 

which provides that, “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.”

Claimant argues that her first reinstatement petition tolled the statute 

of limitations and that her second one constituted a “reactivation” of the first, such 

that she should be permitted to proceed on the merits. In support, she cites Bigley 

v. Unity Auto Parts, Inc., 436 A.2d 1172 (Pa. 1981), where a claimant filed a claim 

petition within the applicable time period, but subsequently withdrew it. The 

Supreme Court held that, in appropriate circumstances and before an 

administrative determination on the merits or an agreement, there is an implied 

power at the administrative level to reinstate the claim after the expiration of the 

original applicable time period. Id. at 1177-78. Accordingly, the Court reversed 

and remanded the matter to the Board to provide an administrative determination 

of the claimant’s request for reinstatement. Bigley, however, is distinguishable

from the present case. Here, Claimant was able to present expert testimony in 
5

opposition to Employer’s termination petition, the Board rendered a decision on 

the merits and Claimant did not pursue an appeal.

As Employer maintains, the present case is more analogous to Uselton 

v. Workmen’s Compensation Appeal Board (Brockway, Inc.), 588 A.2d 595 (Pa. 

Cmwlth. 1991). In Uselton, we held that a claim petition which was gratuitously 

withdrawn could not be refiled more than three years after the withdrawal of the 

original petition. Id. at 596-97. Noting the absence of a specific provision in the 

Act setting forth a limitations period for the filing of a petition to reinstate an 

original claim which was gratuitously withdrawn, we observed that “it would be 

absurd, in our view, to interpret this omission as extending to claimants an ad 

infinitum period of time in which to file such petitions.” Id. at 596. Accordingly, 

analogizing Uselton’s situation to one involving a petition filed under Section 413 

of the Act, which is at issue in the present case, we concluded that Uselton’s 

petition was untimely filed and constituted an attempt to revive what had become 

an abandoned claim. Id. at 596-97. In so determining, we observed as follows:

If we were to conclude that there is no time limitation 

whatsoever, such conclusion, in our view, would be 

contrary to the statutory scheme of the Act which simply 

does not allow a claimant to keep an employer in limbo 

forever. Rather the Act contemplates time periods in 

which parties must act.

Id. at 596.

As WCJ McCormick determined in the present case, there was no 

agreement to toll or extend the statute of limitations and any discussion on the 

record with WCJ Slom at the hearing where the withdrawal took place could not be 

construed to that effect. WCJ Slom stated as follows: “Both counsel have agreed 

that claimant’s counsel will withdraw the pending petition to reinstate benefits 
6

without prejudice to refile the pending petition at a later time pending the outcome 

of the Commonwealth Court litigation.” Bureau Claim No. 3221375, February 24, 

2013 Hearing, Notes of Testimony (N.T.) at 2-3; S.R.R. at 14-15a. Accordingly, 

we reject Claimant’s argument that her “withdraw without prejudice” tolled the 

statute of limitations.

Moreover, we emphasize that where workers’ compensation benefits 

have been terminated by an order determining that all disability has ceased and that 

a claimant has fully recovered, the correct procedure when alleging a recurrence of 

disability is a reinstatement petition under Section 413(a) of the Act. In the present 

case, the Board issued its decision affirming the WCJ’s grant of Employer’s 

termination petition in August 2010. Instead of appealing that decision or filing a 

reinstatement petition, Claimant filed a second rehearing petition in June 2011,

seeking to introduce records from an April 2011 spinal fusion. It was not until 

January 2012 when she finally filed a reinstatement petition. At that point, there 

was an overlay of somewhat futile litigation involving the Board’s December 2011 

denial of her January 2010 rehearing petition and her appeal of the Board’s 

decision to this Court. As noted, Claimant’s counsel withdrew the January 2012 

reinstatement petition. Accordingly, we reject Claimant’s argument that her 

circumstances warrant proceeding with her reinstatement petition after the 

expiration of the statute of limitations.

4

 

4 A claimant is precluded from using a reinstatement petition to relitigate a prior unappealed 

termination decision. Huynh v. Workers’ Comp. Appeal Bd. (Hatfield Quality Meats), 924 A.2d 

717, 722-23 (Pa. Cmwlth. 2007). Where there is a final judgment on the merits, a future suit 

between the parties on the same cause of action is precluded. Weney v. Workers’ Comp. Appeal 

Bd. (Mac Sprinkler Sys., Inc.), 960 A.2d 949, 954 (Pa. Cmwlth. 2008). See also Flannigan v. 

Workers’ Comp. Appeal Bd. (Colt Indus.), 726 A.2d 424, 427 (Pa. Cmwlth. 1999) (holding that, 

“[s]hould the claimant during the reinstatement proceedings present only medical evidence 

(Footnote continued on next page...)
7

For the above reasons, therefore, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge

_____________________________

(continued...)

substantially the same as that previously rejected, then the doctrine of res judicata may bar 

reinstatement.”). In any event, it is irrelevant that Claimant in the present case may have had 

different evidence to present in a reinstatement proceeding that would have been indicative of a 

recurrence of her work injury. The expiration of the statute of limitations extinguished the 

availability of her remedy. Id. at 426.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Donna DiMezza, :

Petitioner :

 :

v. : No. 90 C.D. 2015

 :

Workers’ Compensation Appeal :

Board (Prison Health Services), :

Respondent :

O R D E R

AND NOW, this 3rd day of November, 2015, the order of the 

Workers’ Compensation Appeal Board is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge