Appeal from the Order of the Workmen's Compensation Appeal Board in case of William F. George v. Portage Borough Council, No. A-78004.
Nicholas J. Mikesic, for petitioner.
Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for respondent, Portage Borough Council.
Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
William F. George (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board) upholding a referee's grant of Portage Borough Council's (Employer) Termination Petition. In view of the fact that several errors of law were made by the referee, and were affirmed by the Board, we will reverse and remand.
Claimant worked as a police officer for the Employer. On September 5, 1976, while in the course of his employment, Claimant was injured when struck by a series of blows from an assailant's fist to the nose and left side of the Claimant's face and left eye. On September 30, 1976, a Notice of Compensation Payable was executed, describing Claimant's injuries as "comminuted fracture of the nose, abrasions of face and left eye." Employer filed a Petition for Termination on September 8, 1977, alleging that the Claimant's injuries had healed within one month. Claimant denied this allegation, claiming that his eye injury was now permanent in nature.
Claimant has been a diabetic for roughly 25 years and at the time of his injury suffered from diabetic retinopathy, a serious deteriorative condition of the eyes and a manifestation of a diabetic condition. According to the findings of the referee, Claimant's left eye was in an advanced proliferative stage of this condition, which would eventually result in tractional detachment
of the retina. On August 12, 1976, Claimant had only eccentric vision in his left eye, which was described by Employer's medical witness*fn1 as a loss of central vision, requiring Claimant to look to the side of an object in order to perceive it. The referee also found Claimant's visual acuity on August 12 to be 20/400 in his left eye. Claimant was also seen by his ophthalmologist, Dr. Everett, on September 1, four days prior to the injurious event, and no retinal detachment was found at that time. On September 22, 1976, tractional retinal detachment was found to have occurred in the left eye.*fn2
The referee gave two separate reasons for granting the Termination Petition. The first of these reasons has its source in referee's Finding of Fact No. 21: "The cause of the loss of vision of the left eye is tractional retinal detachment and not the result of trauma to the eye of September 5th, 1976." Of course, there must be a causal relationship between the present disability and the September 5 injury, but an examination of the record discloses this determination of who had the burden of proof by the referee:
Alright, now, procedurally, this is how I view the matter, if . . . there is evidence, competent evidence, to ...