J. Harvilchuck v. WCAB (Thomson Consumer Electronics and Crawford & Co.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Justine Harvilchuck, : Petitioner : : v. : : Workers' Compensation Appeal : Board (Thomson Consumer Electronics : and Crawford & Company), : Respondents : BEFORE: No. 80 C.D. 2008 Submitted: April 18, 2008 HONORABLE DORIS A. SMITH-RIBNER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JIM FLAHERTY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE SIMPSON FILED: May 23, 2008 Justine Harvilchuck (Claimant) petitions for review of an order of the Workers Compensation Appeal Board (Board) that affirmed a decision of a Workers Compensation Judge (WCJ) dismissing her reinstatement petition as untimely under Section 413(a) of the Workers Compensation Act (Act).1 We affirm. 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772, provides (with emphasis added): [a WCJ] designated by the department may, at any time . . . modify . . . a notice of compensation payable . . . upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased. . . Provided, That, . . . no notice of compensation payable . . .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. In 1997, Claimant sustained a work injury in the course of her employment with Thomson Consumer Electronics (Employer). Employer did not issue a notice of compensation payable or any agreement of compensation. However, Employer immediately commenced paying medical benefits related to the work injury. Claimant continued to work for Employer until operations ceased in July 2000. In January 2004, Employer filed a termination petition alleging Claimant fully recovered from the work injury in September 2003. A WCJ hearing ensued, where Employer presented evidence challenging Claimant s entitlement to continuing medical benefits.2 The WCJ rejected Employer s evidence, denied the termination petition, and awarded Claimant attorney s fees. Employer did not appeal. In February 2006, Employer filed a second termination petition alleging Claimant fully recovered from the work injury as of January 30, 2006. Claimant filed a timely answer denying Employer s allegations. On March 27, 2006, Claimant filed a reinstatement petition seeking total disability benefits from July 31, 2001 forward.3 Employer filed a timely answer denying Claimant s allegations. 2 At this WCJ hearing, the parties agreed Claimant was receiving Social Security Widow s Benefits and Disability benefits and was not receiving any cash indemnity benefits. WCJ Op., 6/8/05, Finding of Fact (F.F.) No. 3. Claimant testified she never sought workers compensation wage loss benefits. Id., F.F. No. 4. 3 The significance of the July 31, 2001 date is not apparent in the record, as it does not correspond to expert testimony or Claimant s cessation of employment. 2 A WCJ hearing ensued. Important for purposes of this appeal, the WCJ dismissed Claimant s reinstatement petition as untimely.4 More particularly, the WCJ recognized that Claimant did not file a claim for indemnity benefits prior to her March 2007 reinstatement petition. Further, the WCJ noted that while Employer did not issue a notice of compensation payable or otherwise formally recognize the work injury, Employer continually acknowledged its responsibility to pay Claimant s medical expenses related to the 1997 work injury. As a result, the WCJ determined Claimant s reinstatement petition was clearly beyond the applicable statute of limitations. WCJ Op., 2/20/07, Finding of Fact No. 8(g). Claimant appealed to the Board, arguing the WCJ erred in dismissing her reinstatement petition. Claimant argued she timely filed the reinstatement petition because Employer s payments of medical benefits tolled any applicable statute of limitations. The Board rejected Claimant s argument, providing: The second paragraph of Section 413 of the [Act], 77 P.S. §772 provides, in relevant part: A [WCJ] ¦ may, at any time, modify, [or] reinstate ¦ an award ¦ upon proof that the disability of the injured employe has increased [or] recurred ¦ such reinstatement ¦ shall be made as of the date upon which it is shown that the disability of the injured employe has increased [or] recurred ¦. Provided, That, except in the case of eye injuries, no notice of compensation payable, agreement or award shall be reviewed, or modified, or reinstated 4 The WCJ also denied Employer s second termination petition and awarded Claimant litigation costs. These determinations are not at issue here. 3 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 ¦. Section 413(a) of the Act requires a reinstatement petition to be filed within three years of the most recent payment of compensation to be considered timely. *** Contrary to Claimant s contention, case law has held that Section 413(a) s limitation period is not tolled by the payment of medical expenses. We determine no error. Bd. Op, 12/11/07, at 4-5. On appeal here,5 Claimant assigns error in the dismissal of her reinstatement petition as untimely. Relying on Schreffler v. Workers Compensation Appeal Board (Kocher Coal Co.), 567 Pa. 527, 788 A.2d 963 (2002) (payment of medical expenses can constitute payments of compensation for purposes of tolling limitations period of Section 315 of Act, 77 P.S. §602), Claimant argues payment of medical expenses is considered compensation and, therefore, tolls the statute of limitations under Section 413 of the Act. Claimant s contention is without merit. Significantly, the parties do not dispute this matter is governed by the three-year statute of limitations found in Section 413. 5 It is settled law that This Court is limited to considering whether substantial evidence supports the WCJ s factual findings, whether an error of law was committed, and whether constitutional rights were violated. Roadway Express, Inc. v. Workers Comp. Appeal Bd. (Siekierka), 708 A.2d 132 (Pa. Cmwlth. 1998). 4 payments of medical expenses in cases governed by Section 413 do not toll that section s three-year limitations period. As noted by our Supreme Court, speaking through Madame Justice Newman, in Westinghouse Electric Corporation/CBS v. Workers' Compensation Appeal Board (Korach), 584 Pa. 411, 429-31, 883 A.2d 579, 591 (2005): [A] critical distinction exists between the statute of repose present in Section 315, [77 P.S. §602,] where the employer's liability has not yet ripened, and the statute of limitations of Section 413(a), where employer's liability has been established. Pursuant to the former section, payment of medical expenses and/or wage loss benefits as payments in lieu of compensation may toll the time limitations of Section 315. Schreffler. Conversely, however, pursuant to the latter, liability is established and medical expenses and wage loss benefits are then considered separately. [Section 306(f.1)(9) of the Act,6] 77 P.S. § 531(9). ... Section 306(f.1)(9) precludes the tolling of the limitations period of Section 413(a) by payments for medical treatment.... As a result, the Court determined that the three-year period for filing a petition under Section 413(a) of the Act was not tolled by payment of medical expenses. Based on the foregoing, we reject Claimant s argument that Employer s payments of medical expenses tolled Section 413 s limitations period. Simply stated, no legal error is apparent and Claimant s argument fails. See Riggle 6 Section 306(f.1)(9) of the Act specifically provides that payment by an insurer or employer for any medical, surgical or hospital services or supplies after any statute of limitations provided for in this act shall have expired shall not act to reopen or revive the compensation rights for purposes of such limitations. 5 v. Workers Comp. Appeal Bd. (Precision Marshall Steel Co.), 890 A.2d 50 (Pa. Cmwlth. 2006).7 Accordingly, the Board s order is affirmed. ROBERT SIMPSON, Judge 7 Claimant also argues she met her burden of proof under the reinstatement petition. Given our resolution above, we need not address this issue. In addition, Claimant asserts she is entitled to attorney s fees and penalties. However, she failed to raise these issues in her appeal to the Board and, therefore, these issues are waived. Reproduced Record at 29a-30a. See Borough of Honesdale v. Workmen s Comp. Appeal Bd. (Martin), 659 A.2d 70 (Pa. Cmwlth. 1995) (issues not properly raised before the Board are waived). Claimant does not contend that her reinstatement petition should be considered as a claim petition subject to the limitations period of Section 315 of the Act, 77 P.S. §602; accordingly, we do not address application of that limitations period. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Justine Harvilchuck, : Petitioner : : v. : : Workers' Compensation Appeal : Board (Thomson Consumer Electronics : and Crawford & Company), : Respondents : No. 80 C.D. 2008 ORDER AND NOW, this 23rd day of May, 2008, the order of the Workers Compensation Appeal Board in the above captioned matter is AFFIRMED. ROBERT SIMPSON, Judge

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