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SCHRECENGOST v. O.K. HEILMAN TRUCKING CO. ET AL. (12/29/53)

: December 29, 1953.

SCHRECENGOST
v.
O.K. HEILMAN TRUCKING CO. ET AL.



COUNSEL

Irwin M. Ringold, Pittsburgh, Ralph C. John, Kittanning, for appellants.

John B. Nicklas, Jr., Willard F. Agnew, McCrady & Nicklas, Pittsburgh, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.

Author: Wright

[ 174 Pa. Super. Page 300]

WRIGHT, Judge.

This case arises under the provisions of the Workmen's Compensation Act of 1915, P.L. 736, as amended, 77 P.S. § 1 et seq. The claim petition was filed on June 27, 1944, alleging an eye injury in October 1941. During the course of his employment as a truck driver, claimant was using a hammer to drive a steel pin out of the hinges holding a tailgate when he felt something enter his left eye. A fellow employe wiped the eye with a handkerchief, but no foreign body was removed. Claimant immediately gave notice of his injury to the defendant, and then continued at his regular employment, although complaining of trouble with the eye. He first saw a doctor in August, 1943, and was referred to an eye specialist who hospitalized him on September 23, 1943. An intraocular foreign body was found in the left eye. This substance could not be removed and it has caused a complete loss of vision in that eye. Claimant remained in the hospital until October 9, 1943. He had not lost any time or earnings until he

[ 174 Pa. Super. Page 301]

    entered the hospital, and he resumed work on October 15, 1943.

No formal claim was made for compensation prior to filing the petition on June 27, 1944. However, claimant testified that on October 14, 1943, a day before he resumed work, defendant gave him $40 which defendant 'said it would take the place of the two weeks, the same as compensation pay until the insurance company or until he got it straightened up with the insurance company, until they started to pay'. Defendant admitted the $40 payment but denied that it represented compensation. He testified in this connection as follows: 'Well, Mr. Schrecengost had been losing work and he would have to live and to live they must by food and it is common practice in small business, including my own, to help a man out when he needs help. Now, the $40.00 was given to Mr. Schrecengost as something to carry him along until he obtained some more funds'.

Without making any finding with respect to the $40 payment, the Referee dismissed the claim as barred by section 315 of the Act, 77 P.S. § 602, which provides in part as follows: 'In cases of personal injury all claims for compensation shall be forever barred, unless, within one year after the accident, the parties shall have agreed upon the compensation payable under this article; or unless, within one year after the accident, one of the parties shall have filed a petition as provided in article four hereof. * * * Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of the making of the most recent payment prior to date of filing such petition * * *.'

The original decision of the Referee was affirmed by the Workmen's Compensation Board. Upon appeal

[ 174 Pa. Super. Page 302]

    to the Court of Common Pleas, the case was referred back 'for the purpose of having definite and complete findings of fact, particularly with reference to the circumstances under which the $40.00 payment was made by the defendant to the claimant'. After reconsidering the case, the Referee allowed the claim and made an award of $20 per week, which was sustained by the Board on the basis of the following substituted finding of fact: 'Ninth: We find as a fact that the claim petition in this case was filed within the period of one year from October 14, 1943, at which time the defendant herein paid to ...


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