            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Benyo,                        :
                       Petitioner  :
                                   :
               v.                  :                No. 1694 C.D. 2018
                                   :                SUBMITTED: September 9, 2019
Workers' Compensation Appeal Board :
(Hazle Township Supervisors),      :
                       Respondent :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE ELLEN CEISLER, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE LEADBETTER                                          FILED: October 2, 2019


               Mark Benyo (Claimant) petitions for review of an order of the Workers’
Compensation Appeal Board (Board) that reversed, in part, the order of a Workers’
Compensation Judge (WCJ). The WCJ had partially granted a review petition in
which Claimant sought to add additional injuries to those accepted in a medical-only
Notice of Compensation Payable (NCP). We agree with the Board’s determination
that the review petition was time-barred under the three-year statute of limitations
found in Section 413 of the Workers’ Compensation Act (Act),1 and, therefore,
affirm.
               The relevant background is as follows. In 1995, Hazle Township
Supervisors (Employer) hired Claimant. While driving a work truck and plowing
snow in October 2011, Claimant sustained injuries when he hit a storm grate and/or


   1
       Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 771-772.
the curb thereby hitting his head and jarring his body. (Finding of Fact “F.F.” No.
1.) Claimant did not miss any time from work due to his injuries and has continued
to work full-time for Employer with limitations.           (F.F. Nos. 4b and 10.)
Consequently, he received no disability benefits. In March 2015, Employer issued
a medical-only NCP acknowledging that Claimant sustained work-related injuries in
the nature of cervical, thoracic, and lumbar strains during the October incident. (Id.)
In August 2016, Employer filed two essentially identical termination petitions
alleging that Claimant had fully recovered as of June 6, 2016. (F.F. No. 2.) In
December 2016, Claimant filed the review petition at issue seeking to correct the
accepted injury description to add head and spinal injuries. (F.F. No. 3.) Notably,
both parties filed their respective petitions approximately five years after the date-
of-injury. The WCJ denied the termination petitions, but granted the review petition
in part, directing that the NCP be amended to the extent of adding a head injury with
headaches and concussive symptoms. The Board reversed the partial grant of the
review petition and affirmed the denial of the termination petitions. Claimant’s
petition for review with respect to the review petition followed.
             On appeal, we consider whether the Board erred in determining that
Claimant’s review petition seeking to correct the injury description was time-barred
under the three-year statute of limitations found in Section 413 of the Act. Where,
as here, a party seeks to correct an NCP to add injuries that existed at the time of
issuance but were not listed, the first paragraph of Section 413 applies. Fitzgibbons
v. Workers’ Comp. Appeal Bd. (City of Phila.), 999 A.2d 659, 663-64 (Pa. Cmwlth.
2010). That first paragraph provides:

                    A [WCJ] may, at any time, review and modify or set
             aside [an NCP] and an original or supplemental agreement
             or upon petition filed by either party with the department,
             or in the course of the proceedings under any petition


                                          2
              pending before such [WCJ], if it be proved that such
              [NCP] or agreement was in any material respect incorrect.

77 P.S. § 771 (emphasis added). A claimant has three years from either the date-of-
injury or the last payment of compensation to file a review petition or it is untimely.
Sloane v. Workers’ Comp. Appeal Bd. (Children’s Hosp. of Phila.), 124 A.3d 778,
785 (Pa. Cmwlth. 2015); Fitzgibbons, 999 A.2d at 663-64. Where, as here, no
disability compensation was paid, the date-of-injury controls.2 Sloane, 124 A.3d at
785.
              In the present case, Claimant acknowledges the foregoing law.
However, he argues that Employer’s termination petition should serve as a de facto
expansion of the relevant time period for his otherwise untimely review petition. In
support, he cites Pizza Hut, Inc. v. Workers’ Compensation Appeal Board
(Mahalick), 11 A.3d 1067, 1070 (Pa. Cmwlth. 2011). In Mahalick, the claimant filed
a petition to correct an NCP by expanding the description of her work injury more
than three years after the last payment of compensation. However, because the
employer filed its termination petition within three years of the last payment of
compensation, we held that the Board did not err in affirming the WCJ’s expansion
of the description of the work injury set forth in the NCP during the termination
petition proceeding. In other words, the WCJ could correct the NCP during the
course of the termination proceeding because the employer filed its termination
petition within the relevant time period.
              We reject Claimant’s invitation to expand the holding in Mahalick to
provide that a claimant may seek amendment of the description of a work injury
when a termination petition is pending irrespective of whether that petition was filed

    2
      The payment of medical costs does not constitute compensation for purposes of tolling the
three-year statute of limitations for review petitions. Seekford v. Workers’ Comp. Appeal Bd.
(R.P.M. Erectors), 909 A.2d 421 (Pa. 2006).

                                              3
within the three-year statute of limitations.       In accordance with the Act and
consistent with judicial precedent, a claimant seeking expansion of the nature of the
work injury must do so “in the course of the proceedings under any petition pending
before such [WCJ]”3 within three years of the last payment of compensation or the
date-of-injury. Cinram Mfg., Inc. v. Workers’ Comp. Appeal Bd. (Hill), 975 A.2d
577, 583 (Pa. 2009); Dillinger v. Workers’ Comp. Appeal Bd. (Port Auth. of
Allegheny Cty.), 40 A.3d 748, 753 (Pa. Cmwlth. 2012); Mahalick, 11 A.3d at 1070-
71; Fitzgibbons, 999 A.2d at 663-64. Notably, a claimant need not file a separate
petition to support a corrective amendment. Cinram, 975 A.2d at 583. Nonetheless,
principles of fairness and due process apply. See Sloane, 124 A.3d at 787 (holding
that there must be notice of the theory of relief and an opportunity to respond).
                Claimant also posits an issue as to whether limiting his ability to seek
expansion of the injury description to three years from the date-of-injury deprives
him of the right to a remedy in due course of law in violation of Article I, Section 11
of the Pennsylvania Constitution providing, in pertinent part, that “[a]ll courts shall
be open; and every man for an injury done him in his . . . person . . . shall have
remedy by due course of law . . . .” In support, he maintains that Section 413 of the
Act, “as currently applied” in cases such as Westinghouse Electric Corp./CBS v.
Workers’ Compensation Appeal Board (Korach), 883 A.2d 579 (Pa. 2005), and its
progeny “wrongly negates and deprives injured workers’ access to . . . the remedy
of equitable estoppel to protect the injured worker’s vested right to a cause of action
(a Review Petition) when an employer has willingly made medical payments in the
absence of a formal acceptance of a given condition.” (Claimant’s Brief at 24.) In
Korach, the Supreme Court addressed equitable estoppel principles in the workers’
compensation arena and, inter alia, outlined when an employer’s conduct would

    3
        77 P.S. § 771 (emphasis added).

                                            4
induce another to believe certain facts to exist such that the statute of limitations
would be tolled.
               Employer maintains that Claimant waived this issue by failing to raise
it below at all levels and we agree. While it is true that facial challenges to a statute’s
constitutionality need not be raised before the administrative tribunal in order to be
reviewed by an appellate court, challenges to a statute’s application must be raised
before the agency or are waived for appellate review. Lehman v. Pa. State Police,
839 A.2d 265, 276 (Pa. 2003); Bacon v. Pa. State Police, 164 A.3d 563, 575 (Pa.
Cmwlth. 2017). Here, Claimant’s constitutional claim relates to the application of
the Act’s time limitations to his case rather than a facial challenge to the statute. 4
               Accordingly, we affirm.

                                              _____________________________________
                                              BONNIE BRIGANCE LEADBETTER,
                                              Senior Judge


Judge Fizzano Cannon did not participate in the decision in this case.



    4
        In any event, there is no indication that Claimant was ignorant of any connection between
an alleged head injury and the 2011 accident before the expiration of the statute of limitations that
would have precluded him from filing a timely review petition. “[T]he NCP in this case states
Claimant hit his head in the October 29, 2011 incident, and the injury was apparently significant
enough to warrant a CT scan of the head that was performed within 48 hours afterward . . . .” (F.F.
No. 14.) Moreover, there is no indication that Employer misled Claimant into believing that a
head injury was an accepted injury. As the WCJ found, Claimant declined one doctor’s offer of
treatment for headaches under the belief that they were not covered as an accepted injury. (F.F.
No. 6f.) Consequently, even if Claimant had preserved the issue, his position is without merit.
See Korach, 883 A.2d at 587 (where there was no record evidence to demonstrate that the employer
attempted to lure the claimant into thinking psychiatric treatment was included within the sphere
of its responsibility nor anything in the employer’s conduct that would have prevented the claimant
from filing a petition to amend the NCP, Commonwealth Court erred in concluding that doctrine
of equitable estoppel tolled the limitations period).

                                                 5
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mark Benyo,                        :
                       Petitioner  :
                                   :
               v.                  :    No. 1694 C.D. 2018
                                   :
Workers' Compensation Appeal Board :
(Hazle Township Supervisors),      :
                       Respondent :


                                ORDER


           AND NOW, this 2nd day of October, 2019, the order of the Workers’
Compensation Appeal Board is hereby AFFIRMED.




                                  _____________________________________
                                  BONNIE BRIGANCE LEADBETTER,
                                  Senior Judge
