Beisswanger v. Workmen's Compensation Appeal Board

808 A.2d 984

• Court: Commonwealth Court of Pennsylvania
• Decided: October 28, 2002
• Status: Published

Opinions

OPINION BY

Judge PELLEGRINI.²

Donald Beisswanger (Claimant) petitions for review of an order of the Workers’ Compensation Appeal Board (Board) reversing the Workers’ Compensation Judge’s (WCJ) decision which had granted his claim petition.

On January 23, 1998, Claimant filed a claim petition alleging that on May 10, 1991, he sustained a permanent disfigurement while working for NGK Metals Corporation (Employer) as a furnace operator/helper when hot metal exploded and splashed on the back of his neck. Employer filed an answer denying the allegation and alleging that the claim petition was time-barred under Section 315 of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602.³

Before the WCJ, Claimant presented two photographs of the scar on the back of his neck to support his disfigurement claim. Also at the hearing, the WCJ viewed the scar. Finding that Claimant’s scar was permanent, serious and disfiguring and that the permanence of his sear was first established at the hearing held on June 11, 1998, the WCJ concluded that Claimant’s date of injury was June 11, 1998, and, therefore, his claim petition was not time-barred and granted the claim petition.⁴ Employer then appealed to the Board which reversed the WCJ, concluding that the discovery rule in Section 315 of the Act did not apply to disfigurement cases, Claimant knew or should have known about his scar within three years of the scarring incident, and he could not extend the three-year period set forth in Section 315 of the Act merely by failing to act within that time. This appeal followed.⁵

Claimant contends that the Board erred in reversing the WCJ’s order and concluding that his claim petition was time-barred under Section 315 of the Act because, in specific loss cases, the three-year time period under Section 315 does not begin to run until all of the required elements of the injury have occurred. He argues that because a finding of “permanence” is an essential element of disfigurement under Section 306(e)(22) of the Act,⁶ and such a finding cannot be made, absent medical evidence until the WCJ views the scar, and, in this case, there was no medical or factual evidence in the record indicating that his scar became permanent prior to the WCJ’s June 11, 1998 view of the scar, the three-year time period did not begin to run until that date, and, therefore, his claim petition was timely filed.

To establish entitlement to disfigure-' ment benefits under Section 306(c)(22) of the Act, a claimant is required to prove that the alleged disfigurement is (1) serious and permanent; (2) of such character as to produce an unsightly appearance, and (3) not usually incident to the claimant’s employment. McCole v. Workers’ Compensation Appeal Board (Barry Bashore, Inc.), 745 A.2d 72 (Pa.Cmwlth.2000). He must also establish that he has complied with the time limitation set forth in Section 315 of the Act. Sharon Steel Corp. v. Workmen’s Compensation Appeal Board (Myers), 670 A.2d 1194 (Pa. Cmwlth.), petition for allowance of appeal denied, 544 Pa. 679, 678 A.2d 368 (1996).

Section 315 of the Act is a statute of repose, not a statute of limitations. Bellefonte Area School District v. Workmen’s Compensation Appeal Board (Morgan), 156 Pa.Cmwlth. 304, 627 A.2d 250 (1993), aff'd, 545 Pa. 70, 680 A.2d 823 (1994). As such, unlike a statute of limitations merely limiting the time period within which a party may pursue a certain remedy, Section 315 totally extinguishes the claimant’s substantive rights created by the Act in derogation of the common law, as well as remedies, if the claim is not asserted within the time limit set forth therein. Armco, Inc. v. Workmen’s Compensation Appeal Board (Mattern), 542 Pa. 364, 667 A.2d 710 (1995); Bellefonte. Statutes of repose are jurisdictional and can be raised any time. Myers. “As a result, an employer does not need to plead the time limitation period as if it were an affirmative defense, but rather it remains the claimant’s burden to prove and demonstrate that the claim was indeed timely.” Id. at 1198. (Emphasis added.)

Under Claimant’s interpretation of Section 315 of the Act, the three-year time limitation would begin to run when there has been a determination that a scar is unsightly and permanent, where permanence may be established either: (1) through a WCJ’s view; or (2) at any time before a WCJ views the scar, if either a claimant or an employer can show that the claimant was advised of such permanence by a medical opinion. Under that interpretation, there would be no limitation at all for filing a claim for disfigurement benefits because the permanence of disfigurement would always be determined by the WCJ at a subsequent hearing; a claimant could file a claim petition for a disfiguring scar three years or even 20 years after the incident which caused the scar. Such an interpretation directly contravenes the statutory scheme of the Act which contemplates time periods for all actions of the parties and “does not allow a claimant to keep an employer in limbo forever,” Bellefonte, 627 A.2d at 254, leading to an absurd result.

In this case, Claimant was splashed with hot metal on his neck on May 10, 1991, which resulted in permanent scarring. He did not provide any evidence to establish when the scar became serious, unsightly and a permanent disfigurement compensa-ble under Section 306(e)(22) before the WCJ. Because it was Claimant’s burden to establish that the scar became permanent within three years of filing the claim petition and he did not, his claim is time-barred under Section 315 of the Act.

Accordingly, the order of the Board is affirmed.

ORDER

AND NOW, this 9th day of October, 2002, the order of the Workers’ Compensation Appeal Board, No. A98-3867, dated January 18, 2000, is affirmed.

2 . This case was reassigned to the author on September 10, 2002.

3 . That section provides, in relevant part:

In cases of personal injury all claims for compensation shall be forever barred, unless, within three years after the injury, the parties shall have agreed upon the compensation payable under this article; or unless within three years after the injury, one of the parties shall have filed a petition as provided in article four hereof.

4 . The WCJ issued three decisions in this case. He amended his initial decision twice to change the number of weeks of benefits from 30 to 50 and to correct his reference to "hearing loss benefits” to "disfigurement benefits.” Claimant had previously filed a separate hearing loss claim on which a hearing had been held on October 8, 1997.

5 .Our scope of review in a workers’ compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. The Western Pennsylvania Hospital v. Workmen’s Compensation Appeal Board (Cassidy), 725 A.2d 1282 (Pa. Cmwlth.1999).

6 . That section provides:

For serious and permanent disfigurement of the head, neck or face, of such a character as to produce an unsightly appearance, and such is not usually incident to the ent-ployment, sixty-six and two-thirds per cen-tum of wages not to exceed two hundred seventy-five weeks.

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(22).