Appeals, Nos. 246 and 253, Oct. T., 1957, from judgment of Court of Common Pleas of Lancaster County, March T., 1957, No. 37, in case of Henry Leftwrich v. Colonial Aluminum Smelting Corporation, Pennsylvania Manufacturers' Association Casualty Insurance Company, and American Mutual Liability Insurance Company. Judgment reversed; reargument refused December 3, 1957.
David B. Skillman, for insurance carrier, appellant.
Wilson Bucher, for claimant, appellant.
Ralph M. Barley, with him Barley, Snyder, Cooper & Mueller, for insurance carrier, appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 624]
This is essentially a contest between two insurance carriers in a workmen's compensation case. On June 1, 1955 claimant filed his claim petition with the Workmen's Compensation Board, alleging that "The accident occurred while I was tending the drier when hot metal from the drier flew into my right eye" on March 10, 1955 (on which date Pennsylvania Manufacturers' Association Casualty Insurance Company, hereinafter called "Pennsylvania," was the insurance carrier for Colonial Aluminum Smelting Corporation, hereinafter called "Colonial," the defendant). The claim petition further averred that as a result of this accident an infection set in the eye, causing the eventual removal of the eye on April 21, 1955. "Colonial" and "Pennsylvania" filed an answer denying the material allegations of the claim petition. On September 21, 1955 a hearing was held before a referee, at which time the claimant testified that he was hit in the right eye by metal turnings on March 10, 1955 and that he reported the accident to his foreman. Dr. Lombard testified that he first saw claimant on March 10, 1955; that he flushed dust particles from claimant's eye with salt solution and gave him an antibiotic ointment to put in and then referred him to Dr. Deck. He also testified that he saw claimant only once and that was on March 10, 1955. The hearing was then continued owing to the absence of claimant's other medical witnesses, Dr. Deck and Dr. Posey. A second hearing was held January 24, 1956, at which time Dr. Deck testified that claimant had suffered an earlier injury on November 4, 1954 and that, in his opinion, the loss of claimant's eye was the result of the earlier injury (at which time American Mutual Liability Insurance Company, hereinafter called "American," was the insurance carrier for "Colonial"). Dr. Posey testified that he removed the eye on April 21, 1955 and
[ 184 Pa. Super. Page 625]
that "Vision at this time is nil. The eye was blind preoperatively and post-operatively - operation procedure was done for relief of pain." He further testified that the claimant, in giving him his history, said that he was struck in the right eye with a foreign body while feeding an aluminum drier in November; that he was seen by Dr. Deck approximately one week later; that his right eye stayed sore; that the vision of the right eye was normal prior to the November accident. Dr. Posey further said: "As far as I am concerned, it is impossible for me to determine the etiology of this patient's condition." At the close of this second hearing, the referee suggested that claimant amend his claim petition to show the earlier accident of November 4, 1954. Pursuant to the referee's suggestion, counsel for claimant moved for such an amendment and the same was allowed by the referee. Claimant at no time abandoned his contention that he suffered an injury to his right eye on March 10, 1955. The amendment simply added the November 4, 1954 accident and did not delete the original allegation of the March 10, 1955 accident. The referee then asked that notice of a continued hearing be given "American" since that carrier was on the risk on November 4, 1954. On May 8, 1956 the continued hearing was held, at which time counsel for "American" cross-examined Dr. Deck. Dr. Deck admitted that on June 5, 1955 he wrote a letter to "American" in which he stated "I'm positive his injury of March 21 was the cause of the dislocated lens and the secondary glaucoma." It was agreed that he meant "March 10" instead of "March 21." The doctor endeavored to explain the inconsistency between his oral testimony as given at the hearing and his statement in the letter of June 5, 1955, as follows: "Why I wrote that I just don't know, except I thought here's an insurance paper, let me get rid of it. You drive us mad with your insurance
[ 184 Pa. Super. Page 626]
papers." The doctor's letter of June 5, 1955 was offered in evidence by the attorney for "American" without objection. At this continued hearing, counsel for "American" also offered in evidence, without objection, as Exhibit No. 1, the written statement made and signed by claimant on May 20, 1955, which statement had been given to a representative of "American." In this statement claimant said, inter alia: "On November 1954 I was doing my regular job shoveling aluminum turnings into the dryer. The dryer went out and I then stood to the front and side of the dryer and had my goggles off in my hand cleaning them, when the dryer started up again the gas caused the aluminum turnings to fly out of the dryer and some got into my right eye. I reported my injury immediately to Jack and I was sent to Dr. Denny immediately and he, Dr. Denny, sent me to Dr. Roy Deck, Lancaster, Pa., at his office the same day. Dr. Denny did not give me any treatment. When Dr. Deck examined my right eye he washed it out and gave me eye drops to put into my right eye twice a day - in the morning and afternoon. Dr. Deck did not tell me to return for any further treatment after he saw me the first time. After Dr. Deck cleaned my eye out on Nov., 1954 my eye felt good and was all right and did not bother me at all and I did not lose any time from work. On March 21, 1955, I was again shoveling aluminum turnings into dryer when the dryer went out and I was again ...