10 Pa. Commw. 518 | Pa. Commw. Ct. | 1973
Opinion by
Lucas Kushner was injured in Ms employment by Strick Trailer Company on February 16, 1962. He was paid workmen’s compensation benefits for total disability under an agreement until September 16, 1962 when he executed a final receipt and returned to work. On June 16, 1964, Mr. Kushner suffered a recurrence of symptoms from the injuries sustained on February 16, 1962 and underwent surgery. While in the hospital he instructed Ms wife to obtain from Strick the forms necessary to reinstate Ms workmen’s compensation. Mrs. Kushner was advised by a clerk in Shriek’s personnel office that her husband was not entitled to additional workmen’s compensation. Strick sent the Kushners an application for sick benefits under a company plan. Mr. Kushner, realizing that these were not applications for workmen’s compensation, directed his wife to again request forms for application for workmen’s compensation. Again the personnel clerk advised Mrs. Kushner that her husband was not entitled to workmen’s compensation but that he could obtain sick benefits. Mr. Kushner then applied for sick benefits and received payments on this account for thirty months. His disability continuing, Mr. Kushner filed a petition to reinstate the original compensation agreement on November 21, 1966, a date four years and two months after he executed a final receipt, and two years and five months after he and his wife had been in communication with Strick concerning reinstatement of compensation.
The compensation authorities properly treated the claimant’s application as a petition to set aside a final receipt. The employer and its carrier defended on the ground that the petition was not timely filed. The ref
The time for filing a petition to set aside a final receipt is found at Section 434
Obviously, Mr. Kushner’s application filed in November 1966 was too late if the two year period commenced to run when he executed the receipt in September 1962. He contends, however, that the representations of the employer by its clerk in June 1964 should estop the employer from pleading the two year limitation. He relies on the cases of Guy v. Stoecklein Baking Company, 133 Pa. Superior Ct. 38, 1 A. 2d 839 (1938); Rowles v. State Workmen’s Insurance Fund, 141 Pa. Superior Ct. 193, 14 A. 2d 551 (1940); Angermier v. Hubley Manufacturing Company, 206 Pa. Superior Ct. 422, 213 A. 2d 171 (1972); and Iwaskewycz v. United States Steel Corporation, 7 Pa. Commonwealth Ct. 211, 298 A. 2d 62 (1972). These authorities,
Further, Mr. Kushner did not file his petition until more than two years after the employer’s activities which he contends extended the two year limitation. Mucha v. Bayard & Co., Inc., 177 Pa. Superior Ct. 138, 108 A. 2d 925 (1954) holds that where the declarations and conduct of the employer should estop the employer, the claimant must nevertheless file within the statutory time limitation after the declarations or conduct relied upon.
Affirmed.
Here quoted as unamended by the Acts of February 8, 1972, P. L. , No. 12 and of March 29, 1972, P. L. , No. 61.