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ROBERT J. MCDEVITT v. WORKMEN'S COMPENSATION APPEAL BOARD (RON DAVIDSON CHEVROLET) (02/02/89)

decided: February 2, 1989.

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



Appeal No. 28 W.D. Appeal Dkt. 1988 from Order of Commonwealth Court Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., files a dissenting opinion in which Papadakos and Stout, JJ., join. Papadakos, J., files a dissenting opinion in which Larsen, J., joins.

Author: Per Curiam

[ 520 Pa. Page 120]

ORDER

Appeal dismissed as having been improvidently granted.

LARSEN, Justice, dissenting.

I dissent. The Commonwealth Court's erroneous interpretation of section 315 of the Workmen's Compensation Act, 77 P.S. § 602 (Purdon's Supp.1988), and the majority's "affirmance" of that interpretation by declaring this appeal to have been improvidently granted, are in conflict with the legislative intent and compensation scheme clearly established by the General Assembly's major substantive amendments to the Act in 1972 and this Court's recent interpretations of those amendments. The erroneous interpretation denies workmen's compensation benefits to an eligible claimant, and partially resurrects, for purposes of the three year time bar period of section 315, the discarded "accident" prerequisite for eligibility for workmen's compensation which was replaced in 1972 with the more general requirement of " injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto . . . ." Section 301(c)(1), 77 P.S. § 411 (Purdon's Supp.1988).

The facts of record in this case are straightforward and are not in dispute, and the referee's findings are adequately supported by the record. Those findings are as follows. Appellant, Robert J. McDevitt, suffered from a medical condition of "diabetic neuropathy of his lower extremities" which predated his employment with Ron Davidson Chevrolet (Davidson), appellee. This condition caused numbness in appellant's lower extremities and difficulty in walking and maintaining balance. During his employment with Davidson (December 2, 1973 -- July 23, 1978), appellant suffered

[ 520 Pa. Page 121]

    three separate falling injuries in the course of employment injuring, respectively, his knee (torn cartilage), hip (fracture), and on February 23, 1978, his shoulder (dislocation/fracture) which occurred when he slipped on ice in the employer's driveway while working. Appellant returned to work following each of these injuries.

Despite medical advice, appellant returned to work following the shoulder injury and "continued to work with his injured shoulder until July 23, 1978 when he could no longer tolerate his injury." Referee's Fact Finding (F.F.) No. 9. Appellant ceased employment as of that day (July 23, 1978), and filed a claim petition on July 10, 1981. Hearings were held, and the referee examined the medical testimony and other evidence offered by both parties and found that: appellant's pre-existing condition made him "more likely to fall and hurt himself," F.F. No. 18; appellant had "an extremely diminished range of motion in his right shoulder, which [his] Doctor directly attributed to [his] work related fracture of 1978," F.F. No. 21; the "injury to his right shoulder would prevent his return to work as a car salesman," F.F. No. 22; and

     claimant is and has been totally disabled as a result of a fractured right shoulder and loss of motion of such shoulder incurred during the course of his employment with defendant-employer on February 23, 1978, when he fell on employer's premises, such disability commencing on July 23, 1978 when claimant could not longer perform his job duties. F.F. No. 25.

Based on these findings, the referee awarded compensation beginning on the date of disability, July 23, 1978. This award was required because appellant's shoulder injury caused by a fall on ice while working at employer's place of business was clearly "an injury to an employe, regardless of his previous physical condition, arising in the course of his employment and related thereto . . ." Section 301(c)(1), 77 P.S. § 411(1).

Davidson defended the claim before the referee solely on the basis that appellant's disability was due to his diabetic

[ 520 Pa. Page 122]

    condition and not to injuries sustained at work. Davidson appealed the referee's adverse decision to the Workmen's Compensation Appeal Board (Board), appellee, raising, for the first time, the three year time-bar period of section 315 which provides, in relevant 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.

Without taking additional evidence, the Board vacated the referee's award and dismissed the claim petition, accepting Davidson's argument that appellant's "injury" for section 315 purposes occurred on February 23, 1978, the date of his last accident at work. Accordingly, the Board held that his claim of July 10, 1981 was untimely as it was filed more than three years beyond his "injury" of February 23, 1978, even though the claim was filed within three years from the date on which his disability from work commenced (July 23, 1978). ...


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