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IN THE COMMONWEALTH COURT OF PENNSYLVANIA O-I, Inc. and Gallagher Bassett Services, Inc., Petitioners v. Workers' Compensation Appeal Board (Polito), Respondent BEFORE: : : : : : : : : :

No. 86 C.D. 2009 Submitted: May 1, 2009

HONORABLE DAN PELLEGRINI, Judge HONORABLE JOHNNY J. BUTLER, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BUTLER FILED: June 24, 2009

O-I, Inc. and Gallagher Bassett Services, Inc. (Employer) petition for review from the January 12, 2009 order of the Workers' Compensation Appeal Board (Board) affirming the June 5, 2008 order of the Workers' Compensation Judge (WCJ) awarding Jean Polito's (Claimant) costs of litigation, and reaffirming its January 11, 2008 order which affirmed in part, reversed in part, and remanded the WCJ's October 23, 2006 order which denied and dismissed Claimant's claim and reinstatement petitions, and declared the order final in light of the remanded WCJ order. The only issue in this case is whether, under the circumstances presented, Claimant had three years from the date of the last payment of compensation to petition for reinstatement of a workers' compensation award pursuant to the second paragraph of Section

413(a) of the Workers' Compensation Act (Act),1 or 500 weeks from the date of suspension of benefits pursuant to Section 306(b)(1) of the Act, 77 P.S.

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Pennsylvania Law