Appeal, No. 285, Oct. T., 1963, from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1962, No. 3885, in case of John W. Miller v. Springfield Township Highway Department et al. Appeal sustained, award vacated, and record remanded.
Joseph J. Murphy, with him John F. Dougherty, Jr., and Murphy & Senesky, for appellants.
Joseph D. Shein, with him Shein and Berlant, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 618]
OPINION BY MONTGOMERY, J.
The employer and its carrier have appealed an award of compensation for total disability resulting from injuries sustained by claimant as a result of an accident occurring on November 21, 1958. This was the third accident sustained by this claimant. He had a previous one on December 1, 1954, while in the employ of this same employer and another one four years earlier, the details of which are not disclosed by the record. Although the award before us is based on the 1958 accident, the results of the other two are important in the disposition of the issues now before us.
The two questions before us are: (1) Was the claim filed in time? (2) Does the record support an award for total disability as a result of the accident of November 21, 1958?
Following the accident of November 21, 1958, claimant entered the Presbyterian Hospital on November 24, 1958, and remained there until December 10, 1958. Upon leaving the hospital, he returned to his employment; but he was given lighter work. He continued to work sporadically until May 13, 1959, on which day he entered the Veterans Hospital, where on June 19, 1959, he underwent an operation for a herniated disc (nucleus pulposis at L4 and L5 and at L5 and S1). He never returned to work after May 13, 1959.
The compensation authorities found, and the lower court affirmed, "That by making payment to the claimant of full wages from the time of the accident November 21, 1958 to June 26, 1959, during part of which period no services were performed by the claimant, the defendant employer unintentionally lulled the claimant into a sense of security culminating in the filing
[ 202 Pa. Super. Page 619]
of the instant petition eight days beyond the statutory limitation of 16 months."
Although the board found that claimant had been paid his full wages by his employer from November 21, 1958 to June 26, 1959, this is not entirely supported by the record. Claimant admitted that he had not been paid during his eighteen day confinement in the Presbyterian Hospital:
"Q. You lost no pay from the time of this accident in December, '54 up until the time you went into the hospital on May 13, '59; is that correct, isn't it?
"A. Well, when I went in the Veterans-- the Presbyterian Hospital, they didn't pay me for the time I was in there. For the time I was in, they didn't pay me for ...