Claimant initially suffered right shoulder injury in March 1991; rec’d $436/week, ultimately returned to regular work and $ were suspended.  In December 1995, still w/same Employer, Claimant sustained left shoulder injury.  Rec’d $509/week and after two surgeries, returned to modified work.  In November 2000, Claim & Reinstatement Petitions filed asserting new right shoulder injury in June 1999 or, alternatively, recurrence of 1991 injury.  WCJ found new injury, total disability for about a week and partial through August 1, 1999, when Claimant returned to modified work.  In November 2004, Employer ceased operations and eliminated Claimant’s job.  Benefits for 1995 left shoulder injury reinstated via supplemental agreement on November 25, 2004.  Claimant rec’d these benefits for 1995 left shoulder injury through January 2006, when he filed for reinstatement of benefits for the 1999 right shoulder injury as of November 25, 2004.  In July 2006, WCJ denied, WCAB affirmed, and Cmwlth Ct. affirmed in a 2007 opinion (Kane I), but “did not foreclose possibility of reinstatement of right shoulder injury claim at some point in the future.”  After that appeal concluded with SCOPA denying appeal in 2008, C&R resolved 1995 left shoulder injury and in September 2010, Claimant sought reinstatement for 1999 right shoulder injury as of date of C&R.  Employer argued barred by 500-week limitation.


WCJ granted petition, concluding that disability related to 1999 right shoulder injury recurred as of November 2004 when plant closed and that 500-week limit inapplicable because benefits for the 1999 injury were suspended while Claimant received benefits for the 1995 injury.  WCAB reversed, finding 500-week limit applied, collateral estoppel barred re-litigation of prior reinstatement petition, and that 2010 reinstatement petition exceeded 3-year limit because claimant had not rec’d benefits for the June 1999 right side injury since August 1999.


CC: Reverse & Reinstate WCJ grant of reinstatement petition for 1999 right shoulder injury. (1) No collateral estoppel problem because issues there not identical to issues here.  (2) Not barred by statutory time limits either.  In Cozzone (Pa. 2013 (Castille, C.J.), SCOPA held the 3-year limitations period is “tolled by payments of, or in lieu of, WC.”  Cozzone stands for premise that a claimant should not be able to “stack” benefits at the same time for two injuries, but this does not “snuff out” the entitlement for the “second” injury.  SCOPA intent was to preserve ability to seek benefits for “second” injury in future.  Because Claimant received $ for the 1995 injury “in lieu of” $ for the 1999 injury, he had 3 years from the 2008 C&R to seek reinstatement of the 1999 injury, which he did in 2010.  This also comports with Act’s humanitarian goals.


CO/DO (McGinley): Agree that Claimant not barred by collateral estoppel.  Disagree that Claimant is not time-barred by either/both the 3-year and 500-week statutory limits.

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