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IN THE COMMONWEALTH COURT OF PENNSYLVANIA United National Group/ : Philadelphia Gear Corporation, : Petitioner : : v. : No. 1392 C.D. 2004 : Workers' Compensation : Submitted: January 7, 2005 Appeal Board (Majkszak), : Respondent : BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE JESS S. JIULIANTE, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE JIULIANTE FILED: March 9, 2005 United National Group (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) affirming the portion of the decision of the Workers' Compensation Judge (WCJ) that granted the petition to reinstate benefits filed by Marion Majkszak (Claimant) and reversing the WCJ's award of attorney's fees. We affirm and modify the Board's determination. Claimant sustained bilateral knee injuries when he fell from a crane in the course of his employment with Employer on August 1, 1984. Pursuant to a notice of compensation payable dated September 10, 1984, Claimant received total disability payments at the rate of $320.00 per week. On August 17, 1992, the parties executed a supplemental agreement, reflecting a corrected average weekly wage of $725.98 and setting forth past due and future partial disability payments to which Claimant was entitled. The supplemental agreement also acknowledged that as of July 13, 1990, Claimant returned to work at a modified job with a loss of wages. Claimant continued to receive partial disability payments until March 2002, when the statutory 500-week entitlement period expired. See Section 306(b) of the Workers' Compensation Act (Act).1 On June 3, 2002, Claimant filed a petition to reinstate compensation benefits alleging that he had been laid-off from his modified job on January 5, 1996 and was therefore entitled to temporary total disability benefits from that date until he returned to a modified job on July 1, 1998, again with a loss of wages. Employer filed a timely answer denying all material allegations. During a hearing before the WCJ, Claimant testified that he sustained work-related knee injuries on August 1, 1984 that required two surgical procedures. According to Claimant's undisputed testimony, the injuries to his knees remain symptomatic and he will need knee replacement surgery in the future. Claimant further testified that he returned to work for a new employer in January 1990 until he was laid-off on January 5, 1996, due to economic reasons. He did not return to work until July 1, 1998, at which time he began to work in a modified position for another employer. Claimant also testified that he has not been able to return to his pre-injury job as a master electrician due to ongoing knee pain. Employer presented no evidence in opposition to the petition. The WCJ accepted Claimant's undisputed testimony as credible and granted the petition, concluding that Claimant was entitled to a presumption that his loss of earning power from January 5, 1996 through June 30, 1998 was causally-related to the work injury. The WCJ also awarded Claimant attorney's fees, finding that Employer failed to establish a reasonable basis for contest. Employer subsequently appealed to the Board. By order dated June 4, 2004, the 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(1). 2 Board affirmed the WCJ's award of temporary total disability payments but reversed the WCJ's award of unreasonable contest attorney's fees. The instant petition for review followed.2 The sole issue for our review is whether Claimant's petition was timely filed.3 Section 413(a) of the Act4 allows benefits to be modified or reinstated at any time upon proof that a claimant's disability has changed. This provision also requires that a petition for modification or reinstatement be filed within three years after the date of the most recent payment of compensation. Id. Employer argues that the Board erred in finding that Claimant's petition was timely filed, contending that Claimant should have filed his petition within three years of the commencement of the period for which he sought total disability benefits, namely January 6, 1996. In concluding that Claimant's petition was filed in a timely manner, the Board relied on Stewart v. Workers' Compensation Appeal Board (Pennsylvania Glass Sand/US Silica), 562 Pa. 401, 756 A.2d 655 (2000). In that case, the Supreme Court held that a modification petition seeking total disability benefits filed within three years after the final payment of partial disability benefits under the parties' supplemental agreement was timely and that the 500-week 2 Our review is limited to determining whether there has been a violation of constitutional rights, whether errors of law have been committed, whether there has been a violation of Board procedures, and whether necessary findings of fact are supported by substantial evidence. Kiser v. Workers' Compensation Appeal Board (Weleski Transfer, Inc.), 809 A.2d 1088 (Pa. Cmwlth. 2002). 3 The parties provided this Court with written stipulations acknowledging that the statutory maximum amount of total disability benefits awardable when Claimant was injured in 1984 was $320.00 per week, not the $482.98 per week awarded by the WCJ. (R.R. 55a-57a) We accepted this stipulation as part of the record by order dated October 5, 2004. (R.R. 58a) In addition, Claimant acknowledged in his brief that the period of reinstatement should begin on January 6, 1996 rather than on January 5, 1996, as awarded by the WCJ. 4 77 P.S. §772. 3 limitation on eligibility for partial disability benefits provided in Section 306(a) of the Act did not act as a bar to relief. Employer maintains that Stewart is not controlling because the claimant in that case sought total disability benefits commencing subsequent to the expiration of the 500-week partial disability entitlement period, while Claimant here seeks benefits covering a period of time during the 500-week entitlement period. We disagree. As the Board aptly notes, the three-year limitation period provided in Section 413(a) makes no distinction regarding the time frame for which total disability benefits are being sought. The key inquiry for purposes of tolling the statutory limitation period is simply the date final payment is made. Stewart. Employer also contends that Claimant is barred from receiving total disability benefits based on the doctrine of laches. The defense of laches requires proof of unjustifiable delay in the filing of an action and prejudice to the opposing party. Shah v. State Board of Medicine, 589 A.2d 783 (Pa. Cmwlth. 1991). We concur with the Board's conclusion that because Claimant's petition was timely filed, the doctrine of laches is clearly inapplicable. Accordingly, we affirm the order of the Board with the following modifications: Claimant is entitled to reinstatement of temporary total disability payments at the rate of $320.00 per week from January 6, 1996 through June 30, 1998. JESS S. JIULIANTE, Senior Judge 4 IN THE COMMONWEALTH COURT OF PENNSYLVANIA United National Group/ : Philadelphia Gear Corporation, : Petitioner : : v. : No. 1392 C.D. 2004 : Workers' Compensation : Appeal Board (Majkszak), : Respondent : O R D E R AND NOW, this 9th day of March, 2005, the June 4, 2004 order of the Workers' Compensation Appeal Board is hereby AFFIRMED AS MODIFIED. JESS S. JIULIANTE, Senior Judge
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