Appeal from the Order of the Workmen's Compensation Appeal Board in case of David W. Morrison v. M. Gordon & Sons, No. A-66227.
Lloyd R. Persun, with him R. J. Woodside and Shearer, Mette, Hoerner & Woodside, for appellants.
Gary M. Lightman, with him Myers & Desfor, for appellees.
Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 14 Pa. Commw. Page 289]
On October 26, 1966, David W. Morrison (claimant), while in the course of his employment with M. Gordon & Sons (employer), accidentally sprayed epoxy into his eye. He claims that this resulted eventually in the functional loss of use of his left eye. Because his eye continued to be irritated after the accident, he went to the Carlisle Hospital and was treated there by Dr. Donald D. Stoner, who then referred him to Dr. I. J. Eisenberg, an opthamologist.
The claimant's condition was originally diagnosed as glaucoma and was thought to be unrelated to his work incident. Allegedly because of this diagnosis, the insurance company denied compensation and so informed Dr. Eisenberg in November 1967. After further study, therapy and surgical intervention, however, Dr. Eisenberg concluded (in August 1967) that the claimant's condition was indeed caused by the accident at work. In a letter dated March 13, 1968 which contained the revised diagnosis, Dr. Eisenberg explained to the insurance company that the condition was a "stromal herpetic keratitis complicated by elevated tension." He further stated that "[t]his is a situation that can
[ 14 Pa. Commw. Page 290]
arise due to injury such as paint or any other cause which may break down the epithelial barrier and permit the herpetic virus to enter."
The claimant's claim petition was not filed until April 25, 1968 and, therefore, the appellant contends that the claim is untimely and thus barred by Section 315 of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602, which at the time in question provided for a sixteen-month statute of limitations after the accident for the filing of a claim. A referee dismissed the claim on this basis, but the Workmen's Compensation Board (Board)*fn1 concluded that proper cause was shown for extending the time during which claimant might be allowed to file his petition. The Board, therefore, remanded the case, directing the referee "to review this matter and issue a decision based upon the merits of the case."*fn2 The attorneys for both parties agreed to submit the original record to a second referee for findings of fact even though he, of course, had not heard the case.
The second referee found that the claimant, after having given proper notice to his employer, was lulled into a false sense of security regarding his claim petition, as a result of which he had not made a timely complaint, and that the accident at work had resulted
[ 14 Pa. Commw. Page 291]
in the loss of the claimant's left eye. The Board affirmed the referee, finding that there was competent evidence to support the determination that the accident caused this injury, citing Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973), ...