                    IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Janeen Dickerson,                              :
                      Petitioner               :
                                               :   No. 1218 C.D. 2019
               v.                              :
                                               :   Submitted: December 6, 2019
Workers’ Compensation Appeal                   :
Board (A Second Chance Inc.),                  :
                 Respondent                    :



BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE ELLEN CEISLER, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                              FILED: April 15, 2020


               Janeen Dickerson (Claimant) petitions for review from the August 15,
2019 order of the Workers’ Compensation Appeal Board (Board) affirming the
decision of a Workers’ Compensation Judge (WCJ), which concluded that Claimant’s
claim petition (Petition) was time-barred under Section 315 of the Workers’
Compensation Act (Act),1 77 P.S. §602, as it was filed more than three years after the
date of injury.




      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4-2501-2710.
                                    Facts and Procedural History
                  The factual history of the instant matter is undisputed. The issue in this
case is whether Claimant’s Petition is time-barred under Section 315 of the Act
(Section 315). Section 315 is a statute of repose2 which states that a claim petition
brought under the Act must be filed within three years from the date of injury. 77
P.S. §602. Section 315 may be tolled where a claimant demonstrates (1) the injury
was work-related, and (2) the employer made payments for medical expenses with
the intent that they be “in lieu of [workers]’ compensation.” Schreffler v. Workers’
Compensation Appeal Board (Kocher Coal Company), 788 A.2d 963, 971 (Pa. 2002).
As issues of timeliness often necessitate, we focus on the procedural nature of this
case.
                  Claimant worked for A Second Chance, Inc. (Employer) and alleged that
she was injured when she was involved in a work-related motor vehicle accident on
May 15, 2014. (Reproduced Record (R.R.) at 1a, 6a; Finding of Fact (F.F.) No. 1.)
On June 4, 2014, Employer issued a Medical-Only Notice of Temporary
Compensation Payable (NTCP), for medical treatment only and not for loss of wages.


        2
            A statute of limitations and a statute of repose, though similar, are distinct.

                  A statute of limitations extinguishes the remedy; a statute of repose
                  extinguishes both the remedy and the right. Accordingly, a statute of
                  limitations is procedural, and a statute of repose is substantive. The
                  difference has been explained as follows: ‘A statute of limitations is
                  procedural and extinguishes the remedy rather than the cause of
                  action. A statute of repose, however, is substantive and extinguishes
                  both the remedy and the actual cause of action.’

City of Warren v. Workers’ Compensation Appeal Board (Haines), 156 A.3d 371, 377 (Pa. Cmwlth.
2017) (citing Westinghouse Electric Corporation/CBS v. Workers’ Compensation Appeal Board
(Korach), 883 A.2d 579, 588 n.11 (Pa. 2005)).



                                                      2
(R.R. at 1a; F.F. No. 2.)     On July 31, 2014, Employer issued a Notice Stopping
Temporary Compensation (NSTC) and denying liability. (R.R. at 3a; F.F. No. 2.)
That same day, Employer also issued a Notice of Workers’ Compensation Denial
(NCD) indicating that “based on the medical opinion of Dr. Richard Kasdan the
ongoing medical complaints [were] not work related.” (R.R. at 4a; F.F. No. 2.)
Subsequent to the denial, Employer paid medical bills as late as August 12, 2014, for
treatment rendered on July 24, 2014. (F.F. No. 4.)
             On June 5, 2017, Claimant filed the Petition alleging that she sustained
bodily injuries in the course and scope of her employment and seeking indemnity
benefits. (R.R. at 6a; F.F. No. 1.) Employer filed a timely answer, denying all
material allegations in the Petition and asserting that the Petition was not timely filed.
The Petition was assigned to a WCJ, who conducted a hearing. Following the
hearing, the WCJ made the pertinent findings of fact:


          8. I do not find that Employer intended for the payment of
             medical benefits to replace disability benefits, or to
             constitute payment “in lieu of compensation” for the
             following reasons:

                  a. The operative Bureau document is the [NCD].
                  b. The Employer has not, at any time, acknowledged
                     wage loss benefits. No wage loss benefits have
                     been paid.
                  c. The Employer issued a Medical-Only [NTCP], and
                     then stopped it and denied the claim, which
                     supports that its intent was to pay medical
                     expenses, but not wage loss.
                  d. The medical bill that Employer paid on August 12,
                     2014 was for treatment rendered on July 24, 2014,
                     which was prior to the issuance of the denial. This
                     supports the Employer’s intent to pay for medical
                     treatment that was rendered during the time the


                                            3
                    Medical-Only [NTCP] was operative. There is no
                    evidence that any bills were paid for treatment
                    rendered after the issuance of the [NSTC] and the
                    [NCD].
                 e. The language the Employer used on the [NCD] in
                    box number six does not demonstrate any intent for
                    payment of medical bills to be considered
                    compensation benefits.

         9. As I do not find any evidence to demonstrate that the
            Employer intended to pay medical benefits in lieu of
            compensation, I find that the three-year limitation period
            was not tolled or extended.

         10. The Claimant’s Petition was not filed within three years of
            the date of injury, and is thus time-barred.

(F.F. Nos. 8-10.) Based on these facts, the WCJ concluded that Claimant’s Petition
was time-barred under Section 315 as it was filed more than three years after the date
of injury and Claimant failed to meet her burden of establishing that the medical
payments made by Employer were in lieu of compensation.
            On June 25, 2018, Claimant appealed the decision of the WCJ to the
Board. By decision mailed August 15, 2019, the Board affirmed the WCJ. The
Board reasoned that the controlling question was whether Employer intended to make
payments for medical services in place of disability benefits. (Board op. at 2-3.)
Citing Sloane v. Workers’ Compensation Appeal Board (Children’s Hospital of
Philadelphia), 124 A.3d 778, 785 (Pa. Cmwlth. 2015), the Board explained that “by
issuing a medical-only [notice of compensation payable (NCP)] [an] [e]mployer
makes its intent expressly clear that it would pay a claimant’s medical expenses but
[does not] accept []liability for wage-loss benefits.” (Board op. at 3.) Furthermore,
the Board concluded that even though a medical bill was paid by Employer on
August 12, 2014, for treatment rendered on July 24, 2014, this was prior to the NCD.

                                          4
The Board agreed with the WCJ that the fact that Employer indicated on the NCD
that Claimant’s medical complaints were not work related supported a finding that
Employer intended to pay for medical expenses only.                  (Board op. at 4.)        On
September 4, 2019, Claimant appealed to this Court.


                                          Discussion
              On appeal,3 Claimant raises one issue: “[w]hether the [Board] erred in
affirming [the WCJ’s] decision, as [Claimant’s] [P]etition was not time-barred under
Section 315 [], because [Employer’s] payment of work-related medical bills tolled
Section 315’s three-year statute of limitations for filing a [P]etition.” (Claimant’s Br.
at 4.)
              For support, Claimant relies on Harley Davidson, Inc. v. Workers’
Compensation Appeal Board (Emig), 829 A.2d 1247 (Pa. Cmwlth. 2003), arguing
that where an employer has knowledge of a claimant’s injury and pays for medical
treatment, the statute of repose can be tolled. Claimant argues that because Employer
was aware of the work-related injury in this case, and paid for medical treatment, the
payments were made in lieu of compensation. Further, Claimant maintains that the
present matter is distinguishable from Sloane, 124 A.3d 778, because the controlling
document here is different from the one in Sloane. It is Claimant’s position that
presently, the NSTC and NCD are the controlling documents, not the Medical-Only
NTCP.

         3
         Our scope of review is limited to determining whether findings of fact are supported by
substantial evidence, whether an error of law has been committed, or whether constitutional rights
have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704; Meadow Lakes
Apartments v. Workers’ Compensation Appeal Board (Spencer), 894 A.2d 214, 216 n.3 (Pa.
Cmwlth. 2006).




                                                5
               Employer argues that Sloane controls the disposition of the instant
matter because where a Medical-Only NCP4 is filed, a claim petition must be filed
within three years of the date of the work injury. Pointedly, Employer argues that the
three-year period under Section 315 is not tolled under Sloane because when a
Medical-Only NCP is filed, an employer makes clear its intent to pay medical
expenses, but does not accept liability and does not agree to pay wage-loss benefits.
Thus, when it issued the Medical-Only NTCP, Employer argues that its intent was
only to pay for medical expenses and not make payments in lieu of compensation.


                                    Section 315 of the Act
               Claims based on personal injury that are brought pursuant to the Act are
subject to a three-year repose period under Section 315,5 which provides, in relevant
part, as follows:

               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

       4
          In Sloane, the employer issued a Medical-Only NCP while Employer here issued a
Medical-Only NTCP. 124 A.3d 782. A NTCP is different from a NCP as it evidences an
employer’s uncertainty as to its liability under the Act. Section 406.1(d)(1) of the Act added by Act
of February 8, 1972, P.L. 25, 77 P.S. §717.1(d)(1). Section 406.1(d)(1) of the Act provides, in full:
“[i]n any instance where an employer is uncertain whether a claim is compensable under this act or
is uncertain of the extent of its liability under this act, the employer may initiate compensation
payments without prejudice and without admitting liability pursuant to a notice of temporary
compensation payable as prescribed by the department.” 77 P.S. §717.1(d)(1).

       5
          “The purposes underlying time limitations in the Act are to stimulate the prompt pursuit of
legal rights and avoidance of the inconvenience and prejudice resulting from deciding stale cases on
stale evidence.” Bellefonte Area School District v. Workmen’s Compensation Appeal Board
(Morgan), 627 A.2d 250, 253 (Pa. Cmwlth. 1993), appeal granted & order aff’d, 680 A.2d 823 (Pa.
1994).




                                                 6
            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. . . . Where, however,
            payments of compensation have been made in any case,
            said limitations shall not take effect until the expiration of
            three years from the time of the making of the most recent
            payment prior to date of filing such petition: Provided, That
            any payment made under an established plan or policy of
            insurance for the payment of benefits on account of non-
            occupational illness or injury and which payment is
            identified as not being [workers’] compensation shall not be
            considered to be payment in lieu of [workers’]
            compensation, and such payment shall not toll the running
            of the Statute of Limitations.

Section 315 of the Act, 77 P.S. §602. “Section 315 [] is a statute of repose that
completely extinguishes a claimant’s rights under the Act unless, within three years
of the date of injury, the parties agree on the compensation payable or a claim
petition is filed.” Golley v. Workers’ Compensation Appeal Board (AAA Mid-Atl.,
Inc.), 747 A.2d 1253, 1255 (Pa. Cmwlth. 2000) (citing Armco, Inc. v. Workmen’s
Compensation Appeal Board (Mattern), 667 A.2d 710, 715 (Pa. 1995)).
            Like a statute of limitations, Section 315 allows for tolling in certain
scenarios. Generally, under Section 315, “payments of compensation” will toll the
limitations period. Schreffler, 788 A.2d at 970. Our Supreme Court has prescribed a
two-part test to determine if a payment of medical expenses qualifies as a payment of
compensation:

            [A] [c]laimant must [] establish that (1) the injury was
            work-related, and (2) that the payments were made with the
            intent that they be “in lieu of [workers’] compensation.”
            The claimant cannot meet his or her burden by showing that
            payments of expenses have been made, but must adduce
            additional evidence as to the employer’s intent in making
            the payments. The employer may rebut the claimant’s


                                          7
              evidence by demonstrating, for example, that the injury was
              not work-related, or that the payments were not made in
              lieu of workers’ compensation.
Schreffler, 788 A.2d at 971. In other words, payments are considered to be “in lieu of
compensation,” and will toll the repose period if they are voluntary or informal, apart
from the Act, and “paid with the intent to compensate for a work-related injury.”
Furnari v. Workers’ Compensation Appeal Board (Temple Inland), 90 A.3d 53, 61
(Pa. Cmwlth. 2014) (emphasis in original) (quoting Wallace v. Workers’
Compensation Appeal Board (Pittsburgh Steelers), 722 A.2d 1168, 1170 (Pa.
Cmwlth. 1999)).6
              In applying Section 315, we turn to Sloane for guidance. In Sloane the
claimant injured her elbow during the course and scope of her employment as a
nurse. 124 A.3d at 781. After recovering from a prior work-related injury, she
returned to work in a light-duty position with reduced wages, but suffered a second
work-related injury in 2007.         Id.   The employer accepted this injury through a
Medical-Only NCP that did not provide compensation for loss of wages. Id. The
claimant filed a claim petition on May 31, 2011, seeking reinstatement of total
disability benefits. Id. at 782. The WCJ granted the petition and both the employer
and the claimant each appealed to this Court. In concluding the petition was time-
barred under Section 315, we explained:


              Section 315 [] imposes a three-year limitations period,
              measured from the date [] of injury. [Section 315 of the
              Act,] 77 P.S. §602. [P]ayments of medical expenses may
              toll the Section 315 limitations period where those

       6
        As an aside, in Harley Davidson, 829 A.2d at 1252-53, this Court reiterated that a claimant
must do more than establish the receipt of medical benefits to toll the repose period under Section
315.



                                                8
              payments were made “in lieu of” workers’ compensation
              benefits. The controlling question in this analysis is the
              intent of the employer, i.e. whether the employer intended
              the payments for medical services to replace disability
              benefits. Here, by issuing the medical-only NCP, [the
              e]mployer made its intent expressly clear that it would
              pay [the c]laimant’s medical expenses but accepted no
              liability for wage-loss benefits. Thus, the Petition would []
              be untimely under Section 315.
Sloane, 124 A.3d at 785-86 (emphasis added) (citations omitted).
              Here, we agree with the WCJ’s finding and the Board’s conclusion that
the evidence in this case does not demonstrate that Employer’s payments of medical
expenses were made in lieu of compensation. Significantly, the record does not
reflect a single instance where Employer paid wage loss benefits. Instead, Employer
issued a Medical-Only NTCP agreeing only to pay the medical expenses associated
with Claimant’s injuries. Thus, just like the employer in Sloane, Employer here
“made its intent expressly clear that it would pay Claimant’s medical expenses
but accepted no liability for wage-loss benefits.” Sloane, 124 A.3d at 785-86.
Thereafter, Employer issued a NCD denying liability on the basis that Claimant’s
injuries were not work related.7
              Moreover, the findings show that Claimant’s medical bills were paid as
late as August 12, 2014, for treatment rendered on July 24, 2014, however, there is no
evidence or finding to indicate that any payment was made with the intent to be in
lieu of compensation. The medical bill that Employer paid for treatment rendered on
July 24, 2014, was for treatment prior to Employer’s issuance of the NCD, which
further supports the conclusion that Employer intended only to pay for medical

       7
          Claimant’s argument that the NSTC and the NCD are the controlling documents is
irrelevant because under Schreffler the relevant inquiry is not the kind of document issued, but
whether payments were made in lieu of compensation.



                                               9
treatment that was rendered during the time the Medical-Only NTCP was in effect.
To establish that payments were made in lieu of compensation, Claimant must show
more than the simple fact that she received payments for medical expenses. Because
Claimant has failed to adduce such evidence, the repose period under Section 315
was not tolled.


                                     Conclusion
             Claimant has failed to show that Employer’s payments of medical
expenses qualified as payments in lieu of compensation under Schreffler. To the
contrary, the evidence of record reflects that Employer issued a Medical-Only NTCP,
paid only medical expenses, did not pay wage-loss benefits, and denied liability in a
NSTC and NCD because the injury was not work-related. Claimant was not entitled
to toll the statute of repose under Section 315. Claimant filed her Petition on June 5,
2017, however, the final day to file her petition was May 15, 2017. Therefore,
Claimant’s Petition is untimely.
             Accordingly, the order of the Board is affirmed.




                                           ________________________________
                                           PATRICIA A. McCULLOUGH, Judge




                                          10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Janeen Dickerson,                     :
                    Petitioner        :
                                      :    No. 1218 C.D. 2019
           v.                         :
                                      :
Workers’ Compensation Appeal          :
Board (A Second Chance Inc.),         :
                 Respondent           :


                                  ORDER


           AND NOW, this 15th day of April, 2020, the August 15, 2019 order of
the Workers’ Compensation Appeal Board is affirmed.



                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
