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MOYER v. EDINGER. (06/15/60)

June 15, 1960

MOYER, APPELLANT,
v.
EDINGER.



Appeal, No. 56, Feb. T., 1960, from order of Court of Common Pleas of Monroe County, May T., 1959, No. 85, in case of Kenneth Moyer v. Paul L. Edinger. Order affirmed.

COUNSEL

John J. Pentz, Jr., with him Charles Bensinger, for appellant.

Raymond F. Lowery, with him George T. Robinson, for appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (gunther, J., absent).

Author: Montgomery

[ 192 Pa. Super. Page 451]

OPINION BY MONTGOMERY, J.

The petition of appellant for compensation was dismissed by the Workmen's Compensation Board for the reason that the notice required by the Act of June 2, 1915, P.L. 736, art. III, §§ 311-312, as amended (77 P.S. §§ 631-632), had not been given to the appellee (employer) within the period prescribed by the statute. The action of the Board was sustained by the court below and this appeal followed.

The claimant alleges that he sustained an injury to his back on November 13, 1957, when, as an employee of defendant, he slipped on a loose stone while handling a piece of lumber weighing between 60 and 70 pounds. At that time he felt a sharp pain in his back, which persisted for an hour or two and then completely subsided. He did not leave work but continued throughout that day and thereafter. However, several days later on the recurrence of pain in the same area of his

[ 192 Pa. Super. Page 452]

    back, he consulted Dr. Horn, who prescribed medication (pills) since he was suffering from a cold, which he thought had settled in his back. Thereafter he continued under the care of Dr. Horn, who treated him with heat and medication. Nevertheless, he continued with his regular employment until April 14, 1958, when, being dissatisfied with the results of Dr. Horn's treatment, he consulted another doctor. At this time the pain in his back still persisted and he had become nervous. After consulting the second doctor, he was hospitalized, placed in traction, observed by a neurological consultant and an orthopaedic surgeon, and his condition was diagnosed as a herniated disc. Until this diagnosis was made, he had never referred to any accident as the cause of his condition, although he had been specifically asked by his doctors whether his back had been injured through accident. It was only after this diagnosis had been made that he recalled the slipping incident. Thereupon, he inquired of his employer the date on which he had been working on the project at which it had occurred and, having been informed of that date, he gave the notice required by the statute on April 16, 1958, which of course was well beyond the time allowed. Appellant did not testify to the giving of any other notice and, in fact, both he and his attorney stated at the hearing before the referee that the reason no notice was given was because appellant until April 16, 1958, thought that the pain in his back was due to cold.

However, appellant does refer to the testimony of A.R. Weingartner, his foreman, whom he called as his witness, to prove that he had "... complained about this pain in his back and he was taking pills potentially for a cold, the way he told me the cold settled in his back...." He argues that, in view of the fact that the foreman had complete knowledge of appellant's duties,

[ 192 Pa. Super. Page 453]

    the notice requirement of the statute was satisfied when he became apprised of the appellant's condition within the statutory period. In support of his argument, he cites Uditsky v. Krakovitz, 133 Pa. Superior Ct. 186, 2 A.2d 525. We cannot agree that this case supports his argument since the facts therein clearly indicate that the complaints of that employee were caused by an unusual occurrence in the course of his employment immediately before the complaint was made, and were not, as in the present case, attributable to cold or other illness. Therein there was a connection between the complaint and the performance of the employee's duties, but here we have nothing to indicate an accident or any other work-connected cause for the complaint. In this connection, it is noted also that the knowledge of the foreman was not acquired until after appellant had seen his doctor and received pills for his cold, which he admitted was several days after the alleged slipping incident. The other cases cited by appellant also show a connection between the complaint and the work being done by the claimant and, for that reason, are readily distinguishable. In Palermo v. North East Preserving Works, Inc., 141 Pa. Superior Ct. 211, 15 A.2d 44, the complaint was made in the course of the work and the claimant was taken off the job that he was doing and given lighter work. In Nemonich v. Pittsburgh Coal Co., 161 Pa. Superior Ct. 239, 54 A.2d 73, the complainant was likewise taken from his job after making his ...


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