William A. Challener, Jr., Alexander L. McNaugher and Robert H. Strub, all of Pittsburgh, for appellant.
Max O. Siegel, Coleman Harrison, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 609]
In this workmen's compensation case, which has been shifted from pillar to post for eleven years and is now before this Court for the second time, the learned court below reversed the decision of the board and awarded claimant compensation. Claimant, a painter, alleged that on May 14, 1941, he suffered an accidental injury in the course of his employment which required the removal of his left eye. Referee Curtis, to whom the claim was first referred, awarded compensation for seven weeks' disability but, having found as a fact that the claimant did not have industrial vision of the left eye prior to May 14, 1941, refused compensation for the permanent loss of the eye under the schedule in § 306(c) of The Workmen's Compensation Act, as amended by the Act of June 21, 1939, P.L. 520, 77 P.S. § 513. On appeal by claimant the decision was affirmed by the board.
Claimant then appealed to the Court of Common Pleas of Allegheny County which referred the claim back to the board 'with directions that a further inquiry be made as to (1) the injury of the left eye sustained by the claimant in 1933 while in the employ of the Jones & Laughlin Steel Corporation; (2) the nature of the impairment of vision of the left eye, if any, which the claimant sustained prior to 1933; (3) the effect of the eye disease 'Aphakia cyclitis' upon the left eye from 1933 and until the accident of 1941, and (4) the compensation, if any, paid the claimant as a result of the eye injury of 1933.' (Emphasis added.) The defendant company appealed to this Court which
[ 170 Pa. Super. Page 610]
held that the order of the Common Pleas Court was not appealable. Diaz v. Jones & Laughlin Steel Corp., 155 Pa. Super. 177, 38 A.2d 387.
However, the Court, in order to prevent their recurrence, referred to manifest errors in the board's treatment and consideration of the case relating to (1) the burden of proof, (2) the question involved, and (3) the standard to be applied in determining if the claimant had lost the use of his left eye to such an extent as to be considered the equivalent of the permanent loss of the eye. Keller, P. J., in an opinion dismissing the appeal, said with respect to the burden of proof 155 Pa. Super. at pages 181, 182, 38 A.2d at page 389: '* * * the claimant made out a prima facie case as to the permanent loss of his left eye, by proving its surgical removal as a result of the injury of 1941. * * * If the employer sought to overcome that prima facie case for compensation by proof that the eye so removed was, even before the injury requiring its removal, so permanently useless as an organ of sight as to be equivalent to the loss of the eye, the burden was on it to prove it, not on the claimant to disprove it.' He further stated 155 Pa. Super. at page 182, 38 A.2d at page 390 that 'the question to be decided by the referee, and ultimately by the board [in view of the amendment of 1939, supra], was not whether claimant had previously, permanently lost the use of his left eye for industrial purposes, -- that is, that it did not have industrial vision -- but whether he had permanently lost its use for all practical intents and purposes.' The standard, as set forth in the opinion of the former President Judge 155 Pa. Super. at pages 183, 184, 38 A.2d at page 390, to be applied in deciding that question, is 'not, whether, before the accident in 1941, with the right eye gone, he could see sufficiently with the left eye to do his work as a painter; but whether using both eyes he had better general vision than he would have with only the right eye. In other words, could he see better, in general, using the left eye in connection with his good
[ 170 Pa. Super. Page 611]
right eye than by using the right eye alone? * * * The employer's approach to the case was wrong, and this affected the compensation authorities' consideration and decision of the issues, to the disadvantage of the claimant; and fully justifies the return of the record to the board for hearing, consideration and determination freed of the errors above pointed out.'
Although that opinion was filed July 15, 1944, for some unexplained and undisclosed reason the record was not remitted to the board from the court below until October 29, 1946. On November 13, 1946, it was referred to Referee Curtis for further hearing. Hearings were held before him on February 4, 1947, and December 7, 1948, and additional testimony taken. Shortly after the final hearing Referee Curtis died and on April 9, 1949, by agreement of the parties, the record was assigned to Referee Gibb for final disposition. Although Referee Curtis did not make a specific finding of fact that claimant sustained injuries by accident on May 14, 1941, he did 'find as a fact that as a result of the aforementioned accident, the claimant became totally disabled on May 19, 1941 and continued as such for a period of seven weeks * * *'; and concluded that 'Since the claimant has met the burden of proof upon him to show that he sustained accidental injuries while in the course of his employment with the defendant on May 14, 1941 * * *, he is entitled to recover compensation' and awarded compensation for a period of seven weeks. But after the record had been referred to Referee Gibb, he, notwithstanding the aforesaid finding and ...