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WILLIAM HARTUNG v. COMMONWEALTH PENNSYLVANIA (02/07/80)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 7, 1980.

WILLIAM HARTUNG, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CITY OF PITTSBURGH, RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of William Hartung, Claimant v. City of Pittsburgh, Defendant, No. A-74010.

COUNSEL

Thomas P. Greer, for petitioner.

Zan I. Hodzic, Assistant City Solicitor, with him Arthur G. Gilkes, Jr., Assistant City Solicitor and Mead J. Mulvihill, Jr., City Solicitor, for respondents.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge DiSalle did not participate in the decision in this case.

Author: Craig

[ 49 Pa. Commw. Page 241]

This workmen's compensation appeal has a complex factual and procedural background.

Claimant, while employed by the City of Pittsburgh, fell from a truck and fractured his jaw on June 2, 1967. He received total disability compensation, by agreement, for the periods from June 10, 1967 to August 17, 1967 and again from February 13, 1968 to April 8, 1968.

Claimant signed a Final Settlement Receipt in which he acknowledged that he received a City of Pittsburgh check, No. 081568, as final payment of compensation owing and that he was able to return to work without disability or loss of earning power. Claimant cashed that check on April 23, 1968.

The final receipt is not dated, and the Department of Labor and Industry in Harrisburg has no record that it was ever filed there. Claimant acknowledged that the signature on the receipt was his, but he could not recall signing it.

Claimant returned to work with the city in 1968, but in a lighter job, which he held until he was retired in 1974.

A physician examined claimant in 1974 and concluded that he was still disabled as a result of the accident in 1967.

On May 29, 1974 claimant filed a compensation claim against the city. The compensation authorities have throughout treated that claim as a petition to set aside a final receipt, filed under Section 434 of The

[ 49 Pa. Commw. Page 242]

Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1001 (Act).*fn1

The issue now before us is whether that petition was properly dismissed because it was barred by the two-year limitation within which to file such a petition, found in Section 434 of the Act.

Claimant raises several arguments which are premised on the absence of a finding of fact as to the date of the final receipt. We believe that our decision in Pliscott v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 292, 305 A.2d 918 (1973) controls.

We held there that it is the date of the last payment that begins the running of the limitations period within which to file a petition, not the date of the receipt.

The language of Section 434, as quoted in a foregoing footnote, continues to support that view. Consequently, the last payment date had to have been no later than April 23, 1968, when claimant cashed Check No. 081508, clearly more than two years before the present claim was filed, regardless of when the final receipt may be inferred to have been signed.

[ 49 Pa. Commw. Page 243]

Nevertheless, claimant argues that Pliscott should be distinguished in this case because it is possible that he signed the final receipt more than two years after the final payment of compensation but before the cessation of suspended partial disability rights he may have had under Section 413 of the Act.*fn2 Claimant contends that it would be incongruous to have a final receipt become "sudden death" to a living compensation right.

The argument is ingenious, but unfortunately there is no factual basis in the record to support it; we cannot usurp the factfinder's role and presume, as claimant would have us do, that the receipt was signed more than two years after the last payment of compensation.

[ 49 Pa. Commw. Page 244]

Even more novel is claimant's remaining argument that, because it has been shown that claimant worked while disabled, the final receipt does not prevent claimant from qualifying for reinstated disability under Section 413 of the Act, a disability right which was in abeyance from the time he returned to work.

However, the wording of Section 413 applies only to notices of compensation payable, original or supplemental agreements or awards of compensation.*fn3 In McGahen v. General Electric Co., 406 Pa. 57, 177 A.2d 85 (1962), our Supreme Court specifically rejected an argument that final receipts had to comply with Section 409 of the Act, 77 P.S. § 733, which similarly refers only to "agreements" and "supplemental agreements." The court refused to insert statutory language that did not exist, reasoning that it was a subject for the legislature to add if it saw fit.

We must say the same in construing Section 413. It does not apply to final receipts, and the literal language of Section 434 requires us to invoke that section when a final receipt exists.

As such, claimant has not timely filed his petition as we must construe the starting date under Pliscott, supra.

We must, therefore, affirm the board.

[ 49 Pa. Commw. Page 245]

Order

And Now, this 7th day of February, 1980, the order of the Workmen's Compensation Appeal Board at No. A-74010, dated June 15, 1978, in this matter is affirmed.

Judge DiSalle did not participate in the decision in this case.

Disposition

Affirmed.


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