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PRIMOLI v. PHILADELPHIA BRONZE & BRASS CORPORATION ET AL. (11/16/67)

decided: November 16, 1967.

PRIMOLI
v.
PHILADELPHIA BRONZE & BRASS CORPORATION ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, June T., 1966, No. 324, in case of Sante Primoli v. Philadelphia Bronze & Brass Corporation et al.

COUNSEL

Earl Thomas Britt, with him Paul H. Ferguson and Frederick W. Anton, III, for appellants.

Joseph Hakun, with him Sheer & Mazzocone, for appellee.

Ervin, P. J., Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright and Watkins, JJ., absent). Opinion by Spaulding, J.

Author: Spaulding

[ 211 Pa. Super. Page 225]

This is a workmen's compensation case, the facts of which are not in dispute. In 1945, appellee Sante Primoli sustained an eye injury in the course of his employment with Philadelphia Bronze & Brass Corporation, appellant. A compensation agreement for total disability was entered and payments amounting to $272.57 were made between June 8 and October 12 of that year, at which time a final receipt was executed on termination of the disability.

In November, 1961 appellee filed a petition for reinstatement of compensation under § 413 of the Workmen's Compensation Act,*fn1 alleging total loss of vision

[ 211 Pa. Super. Page 226]

    in one eye as a result of the 1945 accident. The referee found that appellee had sustained permanent loss of vision of the right eye with causal connection between this loss and the 1945 injury. The referee further found that § 413 "expressly excepts injuries to the eyes from its limitation provisions," and concluded that the reinstatement petition was timely filed. Compensation for permanent injury was awarded with credit to appellant for the amounts previously paid.

The Workmen's Compensation Board thereafter reversed the referee and denied reinstatement, holding that appellee's petition was filed too late. The trial court then reinstated the referee's award, from which determination the employer and its insurance carrier now appeal, the sole question being the timeliness of appellee's petition. There is no dispute as to causal relationship.

"While the Board is the ultimate arbiter of the facts and its findings are binding on appeal if supported by competent evidence, the appellate court may review questions of law, including whether the law has been properly applied to the facts." Barrick v. Pocono Highland Camp, 208 Pa. Superior Ct. 72, 75, 220 A.2d 662 (1966).

Two provisions of the Workmen's Compensation Act govern the determination of this case. Section 413 provides in part, "The board may, at any time, modify, reinstate, suspend or terminate an original or supplemental agreement or award . . . upon proof that the disability of an injured employe has increased, decreased, recurred . . . Provided, That, except in the case of eye injuries, no agreement or award shall be reviewed, or modified, or reinstated, unless a petition is filed within two years after the date of the most recent payment of ...


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