Roadway Express, Inc. v. Workers' Compensation Appeal Board

708 A.2d 132, 1998 Pa. Commw. LEXIS 95, 1998 WL 60998
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 17, 1998
Docket47 C.D. 1997
StatusPublished
Cited by16 cases

This text of 708 A.2d 132 (Roadway Express, Inc. v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Roadway Express, Inc. v. Workers' Compensation Appeal Board, 708 A.2d 132, 1998 Pa. Commw. LEXIS 95, 1998 WL 60998 (Pa. Ct. App. 1998).

Opinion

FLAHERTY, Judge.

Roadway Express, Inc. (Employer) petitions for review from an order of the Workers’ Compensation Appeal Board (Board), which affirmed that portion of a decision of a Workers’ Compensation Judge (WCJ), which concluded that James SieMerka’s (Claimant) petition for specific loss was not time-barred, but reversed the WCJ’s determination that Claimant’s average weekly wage should be calculated from the date of the incident leading to the specific loss. We affirm in part and reverse in part.

The facts of this case, as stipulated to by the parties, are as follows:

1. The Claimant suffered a work-related injury to this left eye while in the course and scope of his employment as a dockworker on April 30, 1990. The injury occurred while the Claimant was stripping a freight trailer and an unsecured tarp strap came loose and struck him in the left eye.
2. Notice to his employer of the work injury occurrence was given on April 30, 1990, when an accident report was filed.
3. The Claimant has not missed work as a result of his work-related injury and has not suffered any period of disability.
4. Effective April 30, 1990, the Claimant’s average weekly wage was $580.35.
5. Dr. Radu Pacurariu has treated the Claimant’s left eye condition since May 4, 1990 and continuing through the present, as noted by his office notes, which are attached hereto.
6. Since March 1, 1994, Dr. Pacurariu ordered increased vigilance and increased the frequency of the Claimant’s office visits for treatment of his left eye condition. Dr. Paeurariu’s opinion is that the Claimant lost his eyesight in the left eye for all intents and purposes, and he communicated that fact to the Claimant on March 1, 1994.
7. Effective March 1, 1994, the Claimant’s average weekly wage was $841.99.
8. The Claimant filed his Claim Petition on April 22, 1994, more than 3 years after the work-related injury occurrence to the Claimant’s left eye on April 30, 1990.
9. No Notice of Compensation Payable was ever issued and no payments of disability benefits were ever paid by the employer, though the employer did make payments on medical bills presented for treatment of the Claimant’s left eye. Claimant contends that the Statute of Limitations as to when the specific loss occurred should be upon receiving information from his doctor, as stated in paragraph six (6). Defendant contends that the Statute of Limitations should run from the date of the original injury, not the date on which the injury resolved into a specific loss.
10. At the Defendant’s request, an independent medical evaluation of the Claimant’s left eye was performed on August 16, 1994, by Dr. Joseph F. Morrison, Jr. Dr. Morrison concluded that the Claimant has lost the use of his left eye for all practical intents and purposes. A copy of Dr. Morrison’s IME report is attached hereto.
*134 11. The parties are in agreement that the outcome of this matter turns, on two separate, though related, legal issues:
(1) Whether the 3-year Statute of Limitations (77 P.S. § 602) within which the Claimant must file a Claim Petition or lose his right to benefits in this case begins to run from the date of the original work-related trauma (i.e., April 30, 1990), thus barring his claim in the case at bar, or from the date he received notice as set forth in paragraph six (6) (i.e., March 1, 1994), thus preserving his claim in the case at bar?
(2) If the Statute of Limitations does not bar Claimant’s Claim for specific loss, whether the applicable average weekly wage is to be calculated as of the date of the work injury occurrence (April 30, 1990), or as of the date the injury resolved into a specific loss (i.e., when the Claimant lost the use of his left eye for all practical intents and purposes on March 1,1994)?

In accordance with the above, there is no dispute that Claimant suffered a work-related trauma to his left eye on April 30, 1990, that notice of the accident was given to the Employer on the same date and that Claimant did not suffer any period of disability as a result of the work incident. Additionally, it is undisputed that on March 1, 1994, Dr. Pacurariu, an ophthalmologist, informed Claimant that he had lost the use of his left eye for all practical intents and purposes and that Claimant filed a claim petition on April 22,1994.

On March 29, 1995, the WCJ determined that the Claimant’s claim petition was not time-barred by the three-year statute of limitations contained in Section 315 of the Worker’s Compensation Act because it was not until March 1, 1994, that Dr. Pacurariu, who regularly treated him, first opined and advised Claimant that he had lost the eyesight in his left eye for all practical intents and purposes. 1 On that date, Dr. Pacurariu also ordered increased vigilance and increased the frequency of Claimant’s office visits for treatment of his left eye condition. The WCJ also found that there, was no intervening or cumulative type of trauma to Claimant’s eye that resulted in the specific loss. Because Claimant filed the claim petition on April 26, 1994, within three years of his March 1,1994 medical advice which the WCJ concluded qualified as a specific loss, the WCJ concluded that the petition was not time-barred. Additionally, the WCJ determined that Claimant’s average weekly wage as of April 30,1990, should be used in determining Claimant’s compensation rate.

On appeal, the Board affirmed the Wed’s decision that Claimant’s petition was not barred by the applicable three-year statute of limitations. However, the Board determined that the calculation of Claimant’s average weekly wage should be based upon his March 1, 1994, wages because that was the date Claimant sustained his injury in the nature of a specific loss, and that was the date when the doctor determined that Claimant lost the use of his left eye for all practical intents and purposes. This appeal by Employer followed. 2

Initially, we must determine whether Claimant’s petition is barred by the three-year statute of limitations contained in Section 315 of the Act, 77 P.S. § 602, which provides:

In eases of personal injury all claims for compensation shall be forever barred unless, within three years after the injury, the parties shah 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 here-of_ However, in cases of injury resulting from ionizing radiation in which the nature of the injury or its relationship to the employment is not known to the employee, the time for filing a claim shall not begin to run until the employee knows, or *135 by the exercise of reasonable diligence should know, of the existence of the injury and its possible relationship to his employment.[ 3 ]

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Bluebook (online)
708 A.2d 132, 1998 Pa. Commw. LEXIS 95, 1998 WL 60998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roadway-express-inc-v-workers-compensation-appeal-board-pacommwct-1998.