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CAROL C. ROBERTS v. WORKMEN'S COMPENSATION APPEAL BOARD (MERCK (02/19/87)

decided: February 19, 1987.

CAROL C. ROBERTS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (MERCK, SHARP & DOHME AND PMA INSURANCE COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Carol C. Roberts v. Merck, Sharp & Dohme, No. A-88645.

COUNSEL

Kingsley A. Jarvis, for petitioner.

Samuel H. Pond, with him, Mark Myers, for respondents.

Judges Craig and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 104 Pa. Commw. Page 115]

Carol C. Roberts (claimant) appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's dismissal of her claim for workmen's compensation as barred by the three year statute of limitations applicable to such proceedings. See Section 315 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 602.

Claimant was employed by Merck, Sharp & Dohme (employer) as a machine operator when she suffered an allergic reaction on February 25, 1976, allegedly in response

[ 104 Pa. Commw. Page 116]

    to contaminants distributed by a malfunctioning ventilation system in the employer's manufacturing facility. Claimant received sick pay from that date until August, 1976, and thereafter received disability compensation until August 25, 1978, under an Equitable group insurance policy maintained by the employer. Her claim for workmen's compensation filed with the employer's insurer at some point during the summer of 1976 was denied by that carrier on November 8, 1976. Claimant did not file a petition with the Bureau of Workers' Compensation (Bureau) until April 27, 1981, some five years after her alleged work-related injury. After hearings, the referee dismissed claimant's petition as untimely, the Board affirmed and this appeal followed.

Upon appeal, claimant contends that: (1) her receipt of long-term disability payments under the employer's group policy tolled the applicable statute of limitations so that her subsequent petition for workmen's compensation was in fact timely; and (2) the employer was estopped from raising the issue of timeliness because the notice of denial of workmen's compensation issued by the employer's carrier on November 8, 1976, erroneously indicated that the applicable statute of limitations was two years rather than three years as provided in Section 315 of the Act.

Section 315 states that:

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 . . . [hereinafter]. . . . ...


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