Appeal from the Order of the Workmen's Compensation Appeal Board in case of Bruce Kennedy v. Potter Electric Co., No. A-65774.
Michael J. Dowd, with him John Kocsis, for appellant.
W. Marshall Dawsey, with him Griffin and Dawsey, for appellee, Potter Electric Company.
Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer.
The pertinent facts in this appeal reveal that, on February 4, 1970, Bruce Kennedy (appellant) injured his back while in the course of his employment with Potter Electric Company (Potter). Appellant continued to work for Potter throughout the spring, summer, and fall of 1970. On Wednesday, October 7, 1970, after having worked Monday and Tuesday of that week, appellant was hospitalized for his injury. Potter paid appellant's wages for the whole week of October 5, 1970. Successful surgery was performed on October 15, 1970, and appellant returned to work on December 28, 1970. He is now fully recovered.
On September 16, 1971, appellant filed a claim for compensation. The referee and the Workmen's Compensation Appeal Board denied the claim because it was filed beyond the sixteen-month period specified in the statute of limitations in effect at the time of the injury.
The sole issue that appellant raises is whether the wages paid for the three-day balance of the first week of the October hospitalization tolled the statute of limitations. We think not.
Section 315 of The Pennsylvania Workmen's Compensation Act provided in pertinent part:*fn1
"In cases of personal injury all claims for compensation shall be forever barred, unless, within sixteen months after the accident, the parties shall have agreed upon the compensation payable under this article; or unless within sixteen months after the accident, one of the parties shall have filed a petition as provided in article four hereof. . . . Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of sixteen months from the time of the making of the most recent payment prior to date of Page 78} filing such petition : Provided, That any payment made under an established plan or policy of insurance for the payment of benefits on account of non-occupational illness or injury shall not be considered to be payment in lieu of workmen's compensation, and such payment shall not toll the running of the Statute of Limitations." (Emphasis added.)
Various cases, which have been cited and ably analyzed by both counsel to this proceeding, have discussed the application of this section which, for all purposes connected with the issue before us, has remained unchanged for many years.
In cases not involving an issue of fraud against, or the misleading of, a claimant, it is now generally established that, in order to toll the limitations period, it must clearly appear in the record that the moneys were paid and received as compensation under the Act and not as wages for employment. Cotton v. John Wood Mfg. Co., 126 Pa. Superior Ct. ...