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In Harley Davidson Inc. v. WCAB (Emig, Jr.), 2003 Pa Commw LEXIS 2003, decided August 13, 2003, the Pennsylvania Commonwealth Court (J. Cohn) affirmed the award of temporary total disability benefits by the WCJ, in a claim petition, alleging an original date of lumbar injury on November, 3, 1993.
The Employee sustained a back injury at work on November 3, 1993, reported the injury to his employer, received medical treatment, was disabled for a few days and returned to work with physical restriction. (This decision is silent regarding the filing of an initial compensation agreement. Presumably there was none, as the subsequent claim petition was filed). Medical expenses were paid by Travelers, the time of injury insurer.
The employer continued to work with restrictions. There were additional dates of "exacerbations or recurrences" during 1998 and 1999. Employee received treatment at the employer’s company medical dispensary on February 9, 1998. A new injury report was not filed, based upon the presumption at this was an ongoing problem. The WCJ awarded temporary total disability benefits from December 16, 1999 through May 10, 2000, for the injury date of November 3, 1993. Claim petitions for injury dates in 1998 and 1999, during insurance coverage by CNA Group, were dismissed.
The Employer appealed this award, arguing, inter alia, that the claim petition was not filed within three (3) years of the date of injury.
In denial of Employer’s appeal, the Commonwealth Court reasoned that THE EMPLOYER’S PAYMENT TO ITS DISPENSARY PHYSICIAN FOR THE TREATMENT OF FEBRUARY 9, 1998, WAS WITHIN THREE (3) YEARS OF THE FILING OF THE CLAIM PETITION ON MAY, 24, 2000. THE COURT NOTED THAT SECTION 315 OF THE ACT, DOES NOT REQUIRE THAT THE SOURCE OF THE MEDICAL PAYMENT IS THE WORKER COMPENSATION INSURER.
The Court also noted that an earlier claim petition was filed and dismissed by the WCJ, but there was no evidence in the record as to this filing date. Also emphasized was the ongoing nature of the employee’s complaints, his continuing performance of work with restrictions and the statutory protection afforded to employees to prevent a " lulling" or false sense of security, whereby medical expense payments would dissuade an employee from timely filing a claim.
It is important to note, that the Commonwealth Court, DID NOT find that medical expense payments in 1998 and 1999, by the subsequent WC insurer CNA, had any effect to "toll" the statute of limitations for the 1993 injury involving Travelers Insurance.