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ROBERT J. MCDEVITT v. WORKMEN'S COMPENSATION APPEAL BOARD (RON DAVIDSON CHEVROLET) (05/19/87)

decided: May 19, 1987.

ROBERT J. MCDEVITT, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (RON DAVIDSON CHEVROLET), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Robert J. McDevitt v. Ron Davidson Chevrolet, No. A-89378.

COUNSEL

Richard J. Russell, for petitioner.

Paul J. Dufallo, Assistant Chief Counsel, for respondent.

Judges MacPhail, Doyle and Barry, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 106 Pa. Commw. Page 208]

Robert J. McDevitt (Claimant)*fn1 petitions for review of an order of the Workmen's Compensation Appeal

[ 106 Pa. Commw. Page 209]

Board (Board) that reversed a referee's decision on the ground that Claimant's petition was barred by Section 315 of The Pennsylvania Workmen's Compensation Act (Act).*fn2 We affirm.

Claimant was employed by Ron Davidson Chevrolet (Employer) as a new and used car salesman between December 2, 1973 and July 23, 1978. For at least ten years prior to his commencing work with Employer, Claimant had suffered from diabetic neuropathy of the lower extremities. Claimant's condition manifested itself by causing numbness in his lower extremities and making it difficult for him to walk and maintain balance, leaving him prone to falls. Claimant suffered three injuries resulting from falls while in the course of his employment. The first fall occurred in March 1975 and resulted in a torn cartilage in Claimant's right knee. In July 1976, Claimant sustained a fractured hip as the result of a second fall. A third fall, on February 23, 1978, left Claimant with a fractured shoulder.

Claimant, despite medical advice to the contrary, returned to work on April 1, 1978. He continued to work until July 23, 1978, when his shoulder injury prevented him from continuing to do so.

Claimant filed a claim petition on July 10, 1981, asserting that he had sustained an injury in the course of employment on July 23, 1978. His claim petition also stated, however, that Claimant's shoulder injury occurred on February 23, 1978, and that he left work due to pain from the injury on July 23, 1978. Employer's defense was that Claimant's disability was attributable to his diabetic condition, and not to work injuries. The referee, after a series of hearings, granted Claimant benefits.

[ 106 Pa. Commw. Page 210]

Employer appealed to the Board, raising for the first time the issue of whether Claimant's petition was barred by Section 315. Employer also asked the Board for a supersedeas of benefits, which was granted. Thereafter, the Board reversed the referee's grant of benefits on the ground that Claimant's petition was time-barred.

Section 315 of the Act provides in pertinent part:

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 in article four hereof.

77 P.S. ยง 602 (emphasis added).

The referee in this case found that Claimant's injury occurred on February 23, 1978, while his disability occurred on July 23, 1978. Review of the record discloses that these findings are supported by substantial evidence. For purposes of workmen's compensation, the term "disability" means the loss of earning power by a claimant. See Jones & Laughlin Steel Corp. v. Workmen's Compensation Appeal Board, 35 Pa. Commonwealth Ct. 610, 387 A.2d 174 (1978).*fn3 Under Section 315, however, the date of Claimant's disability is irrelevant; it is the date of the injury which ...


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