Appeal from the Order of the Workmen's Compensation Appeal Board, in case of Joseph Buzink v. Luzerne County Transportation Authority, No. A-87487.
Ralph J. Johnston, Jr., for petitioners.
Anthony J. Lupas, Jr., with him, Michael R. Kostelansky, for respondent, Joseph Buzink.
Judges Rogers and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Barry.
[ 97 Pa. Commw. Page 147]
The Luzerne County Transportation Authority, the employer, and its worker's compensation insurance carrier, the Pennsylvania Manufacturers' Association Insurance Company, appeal from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of the referee awarding benefits to Joseph Buzink, the claimant, for the specific loss of use of his right hand.
The claimant injured his hand at work in January of 1977. A notice of compensation payable was signed and claimant collected benefits for total disability until April of 1977 when he signed a final receipt. A supplemental agreement was filed in February of 1978 and the claimant again collected benefits for total disability. On April 7, 1978, the claimant signed another final receipt.
The claimant continued to have problems with his right hand and on June 23, 1981, he filed a claim petition alleging that he had lost the use of his right hand for all practical intents and purposes. The referee treated this claim petition as a petition to set aside a final receipt. The claimant presented the testimony of Dr. Albert D. Janerich, a physician specializing in physical medicine and rehabilitation. Dr. Janerich, claimant's treating physician, testified that the claimant was able to use his right hand only in a very limited fashion and that, is his opinion, the claimant had lost the use of the hand for all practical intents and purposes. The employer presented medical evidence to the contrary. The referee found Dr. Janerich's testimony to be more credible and awarded benefits. The Board affirmed and this appeal followed.
[ 97 Pa. Commw. Page 148]
The employer makes two allegations of error, neither of which has any merit. Hence, we affirm.
The employer first argues that the claim petition, which was treated as a petition to set aside a final receipt, was untimely. Section 315 of the Pennsylvania Workmen's Compensation Act, Act, of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602 (Supp. 1985), requires that a petition to set aside a final receipt be filed within three years of the date of the most recent payment. Here, the present petition was not filed until three years and two months after the last payment.
In Taglianetti v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 456, 459-60, 439 A.2d 844, 845-46 (1981), aff'd, 503 Pa. 270, 469 A.2d 548 (1983) we stated:
[W]hen an employer has deceived a claimant, and thus delayed the initiation of a claim, the employer is estopped from asserting as a defense the ...