713 A.2d 698
Commonwealth Court of Pennsylvania.Argued April 16, 1998.
Decided May 18, 1998.
Appeal from The Workers’ Compensation Appeal Board, No. A96-0498.
Neil J. Rovner, Harrisburg, for petitioners.
R. Burke McLemore, Jr., Harrisburg, for respondent.
Before SMITH and FRIEDMAN, JJ., and McCLOSKEY, Senior Judge.
FRIEDMAN, Judge.
Frieda Zafran (Claimant) appeals from an order of the Workers’ Compensation Appeal Board (WCAB) affirming the decision of the Workers’ Compensation Judge (WCJ) to dismiss Claimant’s fatal claim petition. We affirm.
On September 21, 1987, Berel Zafran (Decedent) was seriously injured in an automobile accident while riding home from work in an automobile driven by a fellow employee. On July 5, 1989, Decedent filed a claim petition alleging that he sustained a work-related injury in the nature of severe brain damage on September 21, 1987, while in the course of his employment with Empire Kosher Poultry, Inc. (Employer). Employer filed a timely answer denying the allegations in Decedent’s claim petition and alleging that Decedent’s injuries did not occur in the course and scope of his employment. On January 26, 1991, Decedent died. (WCJ’s Findings of Fact, No. 1.)
On June 14, 1991, a WCJ[1] denied Decedent’s claim petition on the basis that, although Decedent was injured in the course and scope of his employment, the Ridesharing Act[2]
barred Decedent’s recovery of benefits.
Page 699
Decedent[3] appealed to the WCAB, and Employer filed a protective cross appeal challenging the WCJ’s finding that Decedent was in the course and scope of his employment when injured. On June 15, 1992, the WCAB affirmed the WCJ’s finding that Decedent was injured while in the course and scope of his employment and reversed the WCJ’s decision with respect to the applicability of the Ridesharing Act, concluding that Decedent is entitled to benefits under the Workers’ Compensation Act (Act).[4] The WCAB remanded to the WCJ for calculation of Decedent’s benefits, costs and attorney’s fees.[5] Employer appealed to this court and, on March 18, 1993, we affirmed the WCAB’s order. Employer filed a petition for allowance of appeal, which our supreme court denied on February 14, 1994.[6]
On February 18, 1994, Claimant, Decedent’s widow, filed a fatal claim petition for compensation as a dependent of a deceased employee. Employer filed a timely answer averring that the petition was filed beyond the statute of limitations/statute of repose. The fatal claim petition was consolidated for hearing with Decedent’s remanded claim petition.[7] Both parties agreed that the WCJ should determine whether Claimant’s fatal claim petition was barred by the statute of limitations before receiving additional evidence. Following hearings on the statute of limitations issue, the WCJ dismissed Claimant’s fatal claim petition as untimely, pursuant to section 315 of the Act, 77 P. S. § 602, because Claimant filed the petition more than three years after the date of Decedent’s death. Claimant appealed to the WCAB, which affirmed the decision of the WCJ. Claimant now appeals from that order to this court.[8]
The right to compensation conferred by
Page 700
section 307 of the Act, 77 P. S. § 561,[9] has always been held by our courts to be in the nature of a death action with death as the cause for compensation. Kujawa v. Latrobe Brewing Co., 454 Pa. 165, 312 A.2d 411 (1973); Auto Serv. Councils of PA., Inc. v. Workmen’s Compensation Appeal Bd. (Compton), 590 A.2d 1355 (Pa.Commw. 1991). Our courts have also held that a widow’s right to compensation under the Act is a separate cause of action, independent of, and not derivative from, the deceased employee husband’s right to compensation, Auto Service Councils; Penn Steel Foundry and Machine Co. v. Workmen’s Compensation Appeal Board (Wagner), 551 A.2d 653 (Pa.Commw. 1988); that is, a widow’s right to compensation is not conditioned upon her husband’s having petitioned for or received compensation for his injury during his lifetime. Auto Serv. Councils; Penn Steel Foundry.
A widow therefore has an independent claim to compensation, “but only if she files her claim within the statutory period after her husband’s death.” Auto Serv. Councils, 590 A.2d at 1359. The period of limitations applicable to this case is set forth in section 315 of the Act, 77 P. S. § 602 (emphasis added), which provides, in part:
In cases of death all claims for compensation shall be forever barred, unless within three years after the death, the parties shall have agreed upon the compensation under this article; or unless, within three years after the death, one of the parties shall have filed a petition as provided in article four hereof.
Here, Claimant concedes that she failed to comply with section 315 of the Act, 77 P. S. § 602, by filing her fatal claim petition more than three years after the death of her husband; nevertheless, Claimant argues that the WCAB erred in affirming the WCJ’s dismissal of Claimant’s fatal claim petition as untimely because the statute of limitations was tolled in this case. We disagree.
Generally, the statute of limitations is tolled only if a claimant shows by clear and precise evidence that the actions of the employer or its insurance carrier lulled the claimant into a false sense of security regarding the filing of the claim. Auto Serv. Councils. If the employer fraudulently or deceptively lulls the claimant into inaction, the employer will be estopped from raising the statute of limitations as a defense. Taglianetti v. Workmen’s Compensation Appeal Bd. (Hospital of the Univ. of Pennsylvania), 503 Pa. 270, 469 A.2d 548 (1983). The principle of estoppel recognizes that an employer should not be able to claim the defense of untimeliness when a claimant’s failure to timely file a petition has resulted from the employer’s own actions. Id.
Here, the record is devoid of any evidence that Employer acted to defraud Claimant. Nor is there any evidence which reasonably could be interpreted as showing that Employer’s conduct misled Claimant or lulled Claimant into a false sense of security regarding the filing of her fatal claim petition.[10] Thus, the WCJ and WCAB did not err in concluding that Claimant’s petition was untimely.[11]
Page 701
Because Claimant failed to file her fatal claim petition within three years after her husband’s death in accordance with section 315 of the Act, 77 P. S. § 602, and because Claimant failed to show conduct by Employer that would toll the statute of limitations, Claimant’s fatal claim petition is forever barred.[12] Accordingly, we affirm.
ORDER
AND NOW, this 18th day of May, 1998, the order of the Workers’ Compensation Appeal Board dismissing Frieda Zafran’s fatal claim petition, dated September 4, 1997, is hereby affirmed.
(Pa.Commw. 1988), aff’d, 143 Pa. 69, 598 A.2d 602 (1991). Here, because Claimant, the burdened party, was the only party to present evidence in connection with the fatal claim petition, our appropriate scope of review is whether the WCJ erred as a matter of law or capriciously disregarded evidence. Russell. A WCJ capriciously disregards evidence when he or she willfully disbelieves an apparently trustworthy witness, whose testimony a person of ordinary intelligence could not possibly challenge or doubt. Butler v. Workmen’s Compensation Appeal Bd. (Commercial Laundry, Inc.), 447 A.2d 683 (Pa.Commw. 1982).
In cases of death, compensation shall be computed on the following basis, and distributed to the following persons:
. . .
2. To the widow. . . .
Claimant further argues that it would have been futile for her to file the fatal claim petition prior to our supreme court’s denial of Ef Employer’s petition for allowance of appeal on Decedent’s claim petition. However, the fact that the decision of whether to award Decedent benefits, pursuant to his claim petition, was pending at the time of his death did not toll the statute of limitations on filing a fatal claim petition. Auto Serv. Councils; see also Lopresti v. Workers’ Compensation Appeal Bd. (Taylor Wharton Co.), 692 A.2d 629 (Pa.Commw.), alloc. denied, 549 Pa. 720, 701 A.2d 580 (1997) (statute of repose on reinstatement petition was not tolled by pendency of related appeal).