Receiving Partial Disability Benefits Because Suitable Work Is Available

In Cicchiello v. Workers' Compensation Appeal Board (Frank L. Markel Corporation), 761 A.2d 210 (Pa. Cmwlth. 2000), petition for allowance of appeal denied, 566 Pa. 649, 781 A.2d 148 (2001), this Court addressed the situation where a claimant sought reinstatement after the expiration of five hundred weeks from the time total disability benefits were suspended. On August 18, 1983, Pietrange Cicchiello (Cicchiello) suffered a work-related strain to his left arm and received total disability benefits pursuant to a notice of compensation payable. Cicchiello returned to work on December 8, 1983, and signed a final receipt. Cicchiello later petitioned to set aside the final receipt in March 1984, and petitioned to reinstate benefits in March 1985. In 1988, a WCJ granted both petitions and reinstated Cicchiello's total disability benefits as of September 20, 1984, the date when he stopped working. Employer received a credit for July 27 to August 7, 1986, when Cicchiello briefly returned to work. Cicchiello, 761 A.2d at 211. L. Frank Markel Corporation (Markel), Cicchiello's employer, appealed the WCJ's decision to the Board and also petitioned to modify Cicchiello's benefits on the basis that Cicchiello could return to suitable work that was made available to him as of May 23, 1991. In June 1992, the Board affirmed the reinstatement but remanded the case to the WCJ for consideration of evidence presented by Markel regarding the availability of suitable work, which the WCJ had failed to consider. The WCJ determined that Cicchiello was only entitled to partial disability benefits because suitable work was available as of March 29, 1985, which Cicchiello refused. The WCJ also found that between May 23, 1991, and July 16, 1991, Cicchiello failed to pursue six positions where he would have earned a weekly wage equal to or in excess of his pre-injury average weekly wage. the WCJ modified Cicchiello's benefits to the partial disability rate of $ 93.97 per week as of March 29, 1985, suspended his benefits for the nine days he worked in July and August 1986, reinstated his partial disability benefits thereafter, and suspended benefits as of May 23, 1991. The Board and this Court affirmed. Cicchiello, 761 A.2d at 211. Cicchiello petitioned to reinstate benefits on March 19, 1997, and alleged that as of December 30, 1994, his condition had worsened and he could no longer perform the work he allegedly could perform in 1994. Markel denied the allegations and raised the statute of limitations defense. The WCJ dismissed Cicchiello's reinstatement petition on the basis that it was time barred by Sections 306(b) and 413 of the Act, 77 P.S. 512(1) and 772. Cicchiello appealed to the Board which affirmed. He then petitioned for review with this Court. Cicchiello, 761 A.2d at 211-212. This Court affirmed: The period of limitations is not tolled during the time benefits are suspended. . . . Section 413 clearly states that payments may be resumed any time defits are suspended. . . . Section 413 clearly states that payments may be resumed any time duriuring the period for which compensation for partial disability is payable. . . . Benefits for partial disability in the instant matter were payable after Claimant's Cicchiello total disability benefits were suspended as of March 29, 1985. Therefore, Claimant Cicchiello had five hundred weeks, or 9.6 years, from the date of the suspension of his total disability benefits to file a petition for reinstatement (which would have been mid-May of 1994). Claimant Cicchiello filed this petition on March 19, 1997, more than twelve years after his total disability payments were suspended in favor of partial disability benefits, and approximately two years and ten months after the five-hundred weeks were exhausted. Claimant Cicchiello also relies on the three-year statute of limitations in Section 413, which would permit Claimant Cicchiello to file a petition to reinstate within three years of his most recent payment. Claimant's Cicchiello reliance is misplaced. In Roussos v. Workmen's Compensation Appeal Board (St. Vincent Health Center), 157 Pa. Commw. 584, 630 A.2d 555 (Pa. Cmwlth. 1993), we expressly distinguished the three-year statute of limitations in Section 413 from the five-hundred week statute of repose contained in Section 306(b). We have unambiguously held that Section 413's three-year limitation 'is totally inapplicable where there has been a suspension. . . .' Roussos, 630 A.2d at 556. Significantly, then, the three-year extension for filing of modification/reinstatement petitions under Section 413 is inapplicable to reinstatements following suspensions and is applicable only to reinstatements following a termination of benefits. Cicchiello, 761 A.2d at 213-214.