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 o n 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 w h ile 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 provi di ng for the payment of workers’ compensation benefits. Subsequ e ntly, 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 200 8 examination, Claimant had fully recovered from her “sprain and strain and contusion of the spine.” DiMezza v. Workers’ Comp

. Appeal B d. (Prison
Health Care Serv s. ) , (Pa. Cmwlth., No. 2349 C.D. 2011 , filed June 4, 2012 ), slip op. at 4. C laim a nt 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, t he Board affirmed the WCJ’s decision g ranting 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 r ehearing, stating that the evidence that she sought to introduce was tantamount to “an attempt to strengthen weak proo fs 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, challeng ing 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 d ecision , 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. I n 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 Boa rd 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 ] Rein statement P etition 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 2 013 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 withdr ew it . The Supreme Court held that
, in appropriate circumstances and before an
administrative determination on the merits or an agreeme nt , there is an implied power at the administrative level to reinstate th e 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 ex pert testimony in5

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 a nalogous to Uselton
v. Work men’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

a bsurd, in our v iew, 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 ob served 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 t he 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 wher e the withdrawal took place could not be
construed to that effect. WCJ Slom stated as follows: “Both counsel have agreed
that c laimant’s counsel w ill withdraw the pending petition to reinstate benefits6

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 prejudi ce” tolled the
statute of limitations

.

Moreover, we emphasize that w here 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 allegin g 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. I nstead of appealing that decision o r 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
den ial of her January 2010 rehearing petition and her appeal of the Board’s
decision to this Court

. As noted, Claimant’s counsel w ithdr e w 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 preclud ed from using a reinstatement petition to relitigate a prior unappealed termination decision. Huynh v. Workers’ Comp

. Appeal B d. (Hatfield Quality Meats) , 924 A.2d 717, 722

- 23 (Pa. Cmwlth. 2007). Where there is a final judgment on the merits, a future su it 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. Cm wlth. 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 irrele vant 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, 201 5 , the order of the Workers’ Compensation Appeal Board is hereby AFFIRMED.

_____________________________________ BONNIE BRIGANCE LEADBETTER, Judge