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NUS CORPORATION AND GENERAL ACCIDENT INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (GARRISON) (09/13/88)

decided: September 13, 1988.

NUS CORPORATION AND GENERAL ACCIDENT INSURANCE COMPANY, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GARRISON), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of David L. Garrison, NUS Corporation, No. A-90854.

COUNSEL

Matthew R. Wimer, Reale, Fossee & Ferry, P.C., for petitioners.

Victor H. Pribanic, for respondent.

Judges Doyle and McGinley, and Senior Judge Kalish, sitting as a panel of three. Opinion by Senior Judge Kalish.

Author: Kalish

[ 119 Pa. Commw. Page 387]

NUS Corporation and General Accident Insurance Company petition for review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting workmen's compensation benefits to David L. Garrison, claimant. We affirm in part and remand in part.

On January 12, 1979, claimant suffered a heart attack while working as an employee for NUS Corporation (employer). He filed a claim petition on March 28, 1983, four years, two months and sixteen days following the heart attack.

The employer contends that the claim is barred by the three year statute of limitations provision of 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.

The claimant argues that the payments made to him during the period of his total disability were payments in lieu of compensation, thereby tolling the statute of limitations period until these payments ceased on October 13, 1980. Therefore, when he filed his claim petition on March 28, 1983, it was timely filed. Furthermore, he argues that the employer's conduct lulled him into a false sense of security with respect to filing his claim for workmen's compensation, so that the employer is estopped from using the statute of limitations as a defense.

After a hearing, the referee found that claimant's injury was work-related and that claimant was totally disabled from January 12, 1979 through October 13, 1980 and partially disabled from October 14, 1980 through May 1, 1981. The referee also found that claimant received long term disability payments from the Union Mutual Insurance Company pursuant to a group insurance

[ 119 Pa. Commw. Page 388]

    policy from January 13, 1979 through October 13, 1980, during which period he was totally disabled. The referee concluded that the applicable period for the statute of limitations was tolled by virtue of the employer's payments to claimant in lieu of compensation and that the employer's conduct amounted to estoppel, so the claim petition was timely filed.

The Board, without taking any testimony affirmed the referee with the exception that the Board found that the referee erred as a matter of law when he determined that the employer lulled claimant into a false sense of ...


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