          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Irvin C. Perkins,                               :
                              Petitioner        :
                                                :
               v.                               :   No. 1949 C.D. 2016
                                                :   Submitted: June 16, 2017
Workers' Compensation Appeal                    :
Board (Ellwood Quality Steels                   :
Company),                                       :
                        Respondent              :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                                FILED: September 21, 2017

               Irvin C. Perkins (Claimant), representing himself, petitions for review
from an order of the Workers’ Compensation Appeal Board (Board) that affirmed
a decision of a Workers’ Compensation Judge (WCJ), which denied his claim
petition as time-barred under Section 315 of the Workers’ Compensation Act
(Act).1 Agreeing with the workers’ compensation authorities that Claimant’s claim
petition, which was filed more than five years after the expiration of the statute of
limitations period, is time-barred, we affirm.


               Claimant worked for Ellwood Quality Steels Company (Employer) as
a scrap inspector. On March 25, 2015, Claimant filed a claim petition, alleging
that in November 2006, he sustained trauma to the head, shoulder, neck and back

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §602.
after he was struck by a moving truck while working for Employer. He sought
ongoing total indemnity benefits beginning in January 2010. Employer filed an
answer in which it denied the allegations. Employer further asserted that dismissal
of the claim petition was required because it was not filed within the Act’s statute
of limitations period. Hearings ensued before the WCJ.


            At the first hearing, Employer reiterated its motion to dismiss the
claim petition as time-barred. Employer requested bifurcation on the statute of
limitations issue, asserting Claimant filed his claim petition more than three years
after the date of injury in violation of Section 315 of the Act. The parties then
engaged in an off the record discussion (that was confirmed on the record), which
indicated Claimant would represent himself in litigating the claim petition. The
WCJ recommended that Claimant consult a lawyer. Claimant indicated he spoke
to an attorney who would not represent him, and he wished to proceed on his own
behalf.


            At the conclusion of the first hearing, the WCJ indicated his
inclination to grant Employer’s request for bifurcation to address the statute of
limitations issue. Thereafter, the WCJ informed the parties that he would grant
Employer’s motion and the case would be bifurcated so that the statute of
limitations issue could be addressed in a preliminary determination.


            Claimant testified at the first WCJ hearing and at a subsequent WCJ
hearing. Claimant confirmed that after the November 2006 injury, he retained
counsel to represent him. Claimant testified he secured representation with three



                                         2
different attorneys to represent him regarding his claim. Claimant confirmed that
in each instance he and his counsel decided to “part ways.” WCJ Op., 8/12/15,
Procedural History at ¶7.


             The WCJ stated that Section 315 of the Act requires that a claimant
file a claim petition within three years after the date of injury. Based on his review
of the record here, the WCJ denied the claim petition. The WCJ stated that, in
order to comply with Section 315, Claimant was required to file his claim petition
no later than November 21, 2009. Because Claimant did not do so, the WCJ
determined that denial of Claimant’s claim petition was proper. Claimant appealed
to the Board.


             On appeal, the Board affirmed, explaining:

                   Claimant testified that he was employed by
             [Employer] as a [scrap] inspector when he sustained a
             work injury on November 22, 2006. [WCJ’s Hr’g, Notes
             of Testimony (N.T.), 5/6/15, at 9.] He sustained the
             injury when he was struck by a moving truck, although
             continued working for [Employer] afterwards. [N.T. at
             10-11]. He last worked for [Employer] on January 19,
             2010, and hasn’t worked anywhere else since. [N.T. at
             12].

                    After careful review of the record, we conclude the
             Judge did not err in denying Claimant’s Claim Petition.
             Claimant bore the initial burden of proving that his Claim
             Petition was timely filed. Bond [v. Workers’ Comp.
             Appeal Bd. (Belmont Ctr.), 711 A.2d 554 (Pa. Cmwlth.
             1998)]. Pursuant to Section 315 of the Act, 77 P.S. §602,
             Claimant had three years from the original date of injury
             in which to file his Claim Petition. Claimant’s alleged
             injury date, as reiterated in his testimony before the
             Judge, was November 22, 2006. Thus, pursuant to


                                          3
              Section 315, he had until November 21, 2009 to file his
              Claim Petition to prevent it from being barred. However,
              Claimant’s Claim Petition was not filed until March 25,
              2015, well over five years after the statute of limitations
              had already expired. Claimant also does not offer any
              argument or evidence as to why the statute of limitations
              should have been tolled in this case. Thus, Claimant’s
              Claim Petition was clearly filed well beyond the three
              year statute of limitation specified in Section 315 of the
              Act, and consequently, the Judge did not err in denying
              his Claim Petition.

Bd. Op., 10/19/16, at 2-3. This appeal followed.


              On appeal,2 Claimant argues he should be permitted to pursue his
claim petition against Employer.          He contends he never received Employer’s
Report of Occupational Injury or Disease, and Employer did not submit that
document to the Bureau of Workers’ Compensation (Bureau). Claimant asserts the
Bureau’s records retention department had no listing of the work accident as of
March 13, 2015, when Claimant requested the information. By failing to report the
accident, Claimant maintains, Employer committed insurance fraud.


              Section 315 of the Act 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. …

       2
         Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed or whether constitutional rights
were violated. Phoenixville Hosp. v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830 (Pa.
2013).



                                              4
             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 ….

77 P.S. §602.


             Section 315 of the Act is a statute of repose, not a statute of
limitations. Beisswanger v. Workers’ Comp. Appeal Bd. (NGK Metals Corp.),
808 A.2d 984 (Pa. Cmwlth. 2002). “As such, unlike a statute of limitations merely
limiting the time period within which a party may pursue a certain remedy, Section
315 totally extinguishes the claimant’s substantive rights created by the Act in
derogation of the common law, as well as remedies, if the claim is not asserted
within the time limit set forth therein.” Id. at 986 (citations omitted). Statutes of
repose are jurisdictional and can be raised any time. Id.


             To toll the application of Section 315, a claimant must prove one of
two things. “He must prove, by a preponderance of evidence, that his claim fits
within an exception to Section 315, or he must prove, by clear and convincing
evidence, that the actions of the employer or its insurance carrier lulled him into a
false sense of security regarding the filing of the claim[.]” Golley v. Workers’
Comp. Appeal Bd. (AAA Mid-Atlantic, Inc.), 747 A.2d 1253, 1255 (Pa. Cmwlth.
2000) (citations omitted).


             Here, it is undisputed that Claimant’s alleged work injury occurred on
November 22, 2006.       Certified Record, Item #2 (claim petition); N.T. at 9.
Further, it is undisputed that Claimant did not file his claim petition within three


                                          5
years of the date of his alleged work injury. Certified Record, Item #2 (claim
petition). Rather, Claimant filed his claim petition on March 25, 2015, more than
five years after the expiration of the statute of limitations. Id. Further, as the
Board recognized, Claimant offers no clear argument or evidence as to why the
statute of limitations should be tolled here. Bd. Op. at 3. Therefore, no error is
apparent in the decisions of the WCJ and the Board that Claimant’s claim petition
is barred by Section 315 of the Act.3


               Accordingly, we affirm.




                                              ROBERT SIMPSON, Judge




       3
          Claimant argues that in September 2009, Employer requested that he sign a waiver of
his right to workers’ compensation. He asserts he refused to sign the waiver and was suspended
for three days until he signed it and was allowed to return to work. Claimant contends this
occurred shortly before the expiration of the three-year limitations period. However, Claimant
did not clearly raise this issue before the WCJ, and he did not raise it in his appeal to the Board.
Therefore, it is waived. See Brewer v. Workers’ Comp. Appeal Bd. (EZ Payroll & Staffing
Solutions), 63 A.3d 843, 847 (Pa. Cmwlth. 2013) (“[F]ailure to raise an issue before the
factfinder or the Board waives the issue on appellate review.”).
        Claimant also contends he filed a third-party suit against the trucking company who he
claims was responsible for the work accident. He asserts that, after a hearing in his third-party
suit, an arbitration panel awarded him a $6000 judgment in October 2014. At that point,
Claimant maintains, he had the evidence he needed to submit to the Bureau. In addition to the
fact that Claimant did not raise this point in his appeal to the Board, he offers no developed
argument as to how this assertion would warrant tolling of the limitations period set forth in
Section 315 of the Act, 77 P.S. §602.



                                                 6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Irvin C. Perkins,                     :
                       Petitioner     :
                                      :
             v.                       :   No. 1949 C.D. 2016
                                      :
Workers' Compensation Appeal          :
Board (Ellwood Quality Steels         :
Company),                             :
                        Respondent    :


                                    ORDER

             AND NOW, this 21st day of September, 2017, the order of the
Workers’ Compensation Appeal Board is AFFIRMED.




                                     ROBERT SIMPSON, Judge
