           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dora Marcusky,                                   :
                                                 :
                        Petitioner               :
                                                 :
                        v.                       :   No. 56 C.D. 2017
                                                 :   Submitted: September 8, 2017
Workers’ Compensation Appeal                     :
Board (Williamsport Area School                  :
District),                                       :
                                                 :
                        Respondent               :


BEFORE:          HONORABLE RENÉE COHN JUBELIRER, Judge
                 HONORABLE PATRICIA A. McCULLOUGH, Judge
                 HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE COLINS                                             FILED: October 13, 2017
                 Dora Marcusky (Claimant) petitions for review of an order of the
Workers’ Compensation Appeal Board (Board) that held that her claim for specific
loss injury benefits under the Workers’ Compensation Act (Act)1 was barred by the
three-year statute of limitations contained in Section 413(a) of the Act, 77 P.S. §§
771-772. We affirm.
                 Claimant suffered an injury on January 29, 2009, in her work for
Williamsport Area School District (Employer).                  (Record Item (R. Item) 6,
Workers’ Compensation Judge (WCJ) Decision, Findings of Fact (F.F.) ¶¶5, 15; R.

1
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
Item 13, Employer Ex. 1, Reproduced Record (R.R.) at 10a, 12a.) Employer
issued a Notice of Compensation Payable (NCP) describing this work injury as a
“neck strain/sprain” and the description of the work injury was subsequently
expanded to include a “herniated cervical disk at C6-7 on the right side.” (R. Item
6, WCJ Decision, F.F. ¶¶5-6, 15; R. Item 13, Employer Ex. 1, R.R. at 10a-13a.)
On May 14, 2009, Claimant had surgery to treat the herniated cervical disk. (R.
Item 6, WCJ Decision, F.F. ¶¶10-11, 15; R. Item 14, Employer Ex. 2.) On August
28, 2009, Claimant returned to work at no loss of income and Claimant’s disability
benefits were suspended. (R. Item 6, WCJ Decision, F.F. ¶¶9, 12, 15; R. Item 13,
Employer Ex. 1, R.R. at 10a, 12a.)
            Section 413(a) of the Act provides the following time limitations for
petitions for modification, review and reinstatement of compensation benefits:

            [E]xcept in the case of eye injuries, 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. …
            [P]rovided further, That where compensation has been
            suspended because the employe’s earnings are equal to or in
            excess of his wages prior to the injury that payments under the
            agreement or award may be resumed at any time during the
            period for which compensation for partial disability is payable,
            unless it be shown that the loss in earnings does not result from
            the disability due to the injury.
77 P.S. § 772. The period for which compensation for partial disability is payable
is 500 weeks. Section 306(b)(1) of the Act, 77 P.S. § 512(1).
            On February 9, 2016, more than six years after her compensation
benefits were suspended, Claimant filed a petition to modify and review benefits,
seeking specific loss disfigurement benefits for a scar from her 2009 surgery. (R.

                                        2
Item 6, WCJ Decision, F.F. ¶15; R. Item 2, Petition to Modify and Review
Compensation Benefits, R.R. at 3a-5a.) Employer asserted in its answer that
Claimant’s petition for specific loss benefits was time-barred because it was filed
more than three years after the last payment of compensation benefits. (R. Item 5,
Employer’s Answer to Petition to Modify and Review, R.R. at 6a.)
              On May 13, 2016, the WCJ issued a decision granting Claimant’s
petition, finding that Claimant suffered a permanent three-inch scar on the back of
her neck as the result of her 2009 surgery, and awarding her 30 weeks of benefits
for disfigurement under Section 306(c)(22) of the Act, 77 P.S. § 513(22). (R. Item
6, WCJ Decision, F.F. ¶¶10, 14, 15, Conclusions of Law (C.L.) ¶¶2, 7 & Order
¶¶1-2.) The WCJ recognized that Claimant’s petition was filed more than three
years after she last received compensation benefits, but held that it was not time-
barred because it was filed within 500 weeks of the date that benefits were
suspended. (Id., C.L. ¶¶3-6.) Employer appealed the WCJ’s decision to the Board.
The Board, on December 22, 2016, reversed the WCJ’s decision, concluding that
the three-year limitation period barred Claimant’s petition and that the 500-week
limitation relied on by the WCJ was inapplicable. (R. Item 9, Board Opinion at 2-
7.)
              On appeal to this Court,2 Claimant argues that because her benefits
had been suspended, her petition to add specific loss benefits was subject to the
500-week limitation period. We do not agree.

2
  Our review of a Board order holding that a claimant’s petition is time-barred is limited to
determining whether an error of law was committed, whether necessary findings of fact are
supported by substantial evidence or whether constitutional rights were violated. Fitzgibbons v.
Workers’ Compensation Appeal Board (City of Philadelphia), 999 A.2d 659, 661 n.3 (Pa.
Cmwlth. 2010) (en banc).



                                               3
             Where a review or modification petition seeks to add a new injury
that resulted from the claimant’s accepted work-related injuries, the three-year
limitation of Section 413(a) applies and bars the new claim if no petition was filed
within three years after the date that the claimant last received compensation
benefits. Dillinger v. Workers’ Compensation Appeal Board (Port Authority of
Allegheny County), 40 A.3d 748, 752-53 (Pa. Cmwlth. 2012); Fitzgibbons v.
Workers’ Compensation Appeal Board (City of Philadelphia), 999 A.2d 659, 663-
64 (Pa. Cmwlth. 2010) (en banc); Kelley v. Workers’ Compensation Appeal Board
(Standard Steel), 919 A.2d 321, 325-27 (Pa. Cmwlth. 2007).

             [W]hen a party is seeking either to obtain relief through the
             correction of an NCP under paragraph one of Section 413 of the
             Act, or is seeking to add additional consequential injuries to a
             claimant’s compensable, work-related injuries under paragraph
             two of Section 413 of the Act, the party must file the petition
             within three years of the date of the most recent payment of
             compensation.
Fitzgibbons, 999 A.2d at 663-64. This three-year statute of limitations applies to
the type of modification and review petition that Claimant filed here, a petition for
specific loss benefits for disfigurement from a scar due to surgery for the accepted
work injury. Kelley, 919 A.2d at 325-27 (claim for specific loss benefits for neck
scar barred because no petition was filed within three years of date that claimant’s
benefits were suspended).
             The fact that Claimant’s benefits were suspended due to a return to
work does not change this. The exception in Section 413(a) that “payments under
the agreement or award may be resumed at any time during the [500-week] period
for which compensation for partial disability is payable” applies only to claims for
a worsening of the accepted work injury after the suspension of benefits and


                                         4
increased disability from the accepted work injury. Dillinger, 40 A.3d at 753;
Fitzgibbons, 999 A.2d at 664 n.7. It does not permit the addition of conditions
distinct from the accepted work injury more than three years after the last payment
of compensation. Dillinger, 40 A.3d at 753; Fitzgibbons, 999 A.2d at 664 n.7. In
Fitzgibbons, this Court, en banc, held that the 500-week limitation period did not
apply and that the claimant’s review and reinstatement petition filed in 2002 was
barred by the three-year statute of limitations, even though claimant’s disability
benefits were suspended in 1998 based on her return to work at no loss of earnings,
because “she is not here seeking reinstatement for an alleged disability (loss of
earning power) related to her identified left elbow work-related injury.”
Fitzgibbons, 999 A.2d at 659-60, 664 n.7. Contrary to Claimant’s contention, a
scar from surgery for her accepted work injury is a distinct, additional injury not
encompassed by the accepted work injury. Kelley, 919 A.2d at 326.
             Moreover, the language of the 500-week limitation period on its face
does not extend the statute of limitations for all modification or review petitions
simply because benefits have been suspended due to a return to work. Rather, the
language providing that “payments under the agreement or award may be resumed
at any time during the period for which compensation for partial disability is
payable, unless it be shown that the loss in earnings does not result from the
disability due to the injury,” 77 P.S. § 772 (emphasis added), refers to the
resumption of previously recognized or awarded benefits where the reason for the
suspension, the return to work at no loss of earnings, is no longer present. Here,
there is no claim or evidence that the scar affects Claimant’s ability to work or that
Claimant has suffered any loss of earnings. Nor is there any claim or evidence that
the scar arose more than three years after Claimant’s benefits were suspended.


                                          5
            The cases on which Claimant relies, Faulkner Cadillac v. Workers’
Compensation Appeal Board (Tinari), 831 A.2d 1248 (Pa. Cmwlth. 2003), and
Romanowski v. Workers’ Compensation Appeal Board (Precision Coil
Processing), 944 A.2d 127 (Pa. Cmwlth. 2008), are distinguishable. In Faulkner
Cadillac, the claimant’s loss of use of his hands was a progressive worsening of
the accepted chemical burn injury that affected his ability to work after the
suspension of benefits, not a distinct condition with no effect on Claimant’s
earning power.    831 A.2d at 1250-51, 1254.       In Romanowski, the claimant’s
petition sought reinstatement of benefits due to worsening of the injury and
decreased earning capacity and the Court ruled that the petition, which was filed
after both the three-year and 500-week periods expired, was barred by the time
limitations in Section 413(a). 944 A.2d at 128, 130-31.
            Because the Board correctly concluded that Claimant’s modification
and review petition was time-barred, the order of the Board is affirmed.




                                      ____________________________________
                                      JAMES GARDNER COLINS, Senior Judge




                                         6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dora Marcusky,                         :
                                       :
                  Petitioner           :
                                       :
                  v.                   :   No. 56 C.D. 2017
                                       :
Workers’ Compensation Appeal           :
Board (Williamsport Area School        :
District),                             :
                                       :
                  Respondent           :



                                  ORDER


            AND NOW, this 13th day of October, 2017, the order of the Workers’
Compensation Appeal Board in the above matter is affirmed.




                                    ____________________________________
                                    JAMES GARDNER COLINS, Senior Judge
