            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 on 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 while working as a nurse for Employer Prison

   1
       Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 772.
Health Care Services.2       Employer issued a temporary notice of compensation
payable, describing the injury as a hip contusion and providing for the payment of
workers’ compensation benefits. Subsequently, 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 2008 examination, Claimant had fully recovered from her “sprain and strain
and contusion of the spine.” DiMezza v. Workers’ Comp. Appeal Bd. (Prison
Health Care Servs.), (Pa. Cmwlth., No. 2349 C.D. 2011, filed June 4, 2012), slip
op. at 4. Claimant 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, the Board affirmed the WCJ’s decision granting
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 rehearing, stating that the evidence that she sought to introduce was
tantamount to “an attempt to strengthen weak proofs 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).



                                             2
January 2012 petition for review with this Court, challenging 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 decision, 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. In 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 Board 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.



                                                  3
2012] Reinstatement Petition 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 2013 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 withdrew it. The
Supreme Court held that, in appropriate circumstances and before an
administrative determination on the merits or an agreement, there is an implied
power at the administrative level to reinstate the 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 expert testimony in



                                           4
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 analogous to Uselton
v. Workmen’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
absurd, in our view, 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 observed 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 the 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 where the withdrawal took place could not be
construed to that effect. WCJ Slom stated as follows: “Both counsel have agreed
that claimant’s counsel will withdraw the pending petition to reinstate benefits



                                         5
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 prejudice” tolled the
statute of limitations.
               Moreover, we emphasize that where 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 alleging 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. Instead of appealing that decision or 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
denial of her January 2010 rehearing petition and her appeal of the Board’s
decision to this Court. As noted, Claimant’s counsel withdrew 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 precluded from using a reinstatement petition to relitigate a prior unappealed
termination decision. Huynh v. Workers’ Comp. Appeal Bd. (Hatfield Quality Meats), 924 A.2d
717, 722-23 (Pa. Cmwlth. 2007). Where there is a final judgment on the merits, a future suit
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. Cmwlth. 1999) (holding that,
“[s]hould the claimant during the reinstatement proceedings present only medical evidence
(Footnote continued on next page…)


                                                6
              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 irrelevant 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.



                                               7
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Donna DiMezza,                         :
                       Petitioner      :
                                       :
                 v.                    :     No. 90 C.D. 2015
                                       :
Workers’ Compensation Appeal           :
Board (Prison Health Services),        :
                        Respondent     :


                                    ORDER


           AND NOW, this 3rd day of November, 2015, the order of the
Workers’ Compensation Appeal Board is hereby AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge
