Hunter v. Mailey Fid. Cas. Co. , 1927 Pa. Super. LEXIS 197 ( 1927 )

Argued April 21, 1927. These appeals, one by an employer, the other by his insurance carrier, are from an award of $92 compensation made by the referee, affirmed by the board and also by the common pleas.

While at work on July 6, 1924, claimant struck his upper right arm against a rack, suffered severe pain then and throughout the night. He did not report the matter to his employer until September 1924; then a lump appeared at the place of injury, and he consulted a physician. In July 1925 a specimen of the growth was analyzed. He was then absent from work two weeks, while in a hospital, during which period his employer paid him a sum equal to his wages. After that absence, he worked until September 14, 1925, when he entered another hospital, not again resuming work until November 16, 1925. He did not file petition for compensation until December 9, 1925. His award covered the period of his absence from September 14, 1925, to November 16, 1925.

We are satisfied that his own evidence taken with his physician's supports the finding that the disability resulted from the accident.

Appellant's principal contention is that the claim was not filed in time. Section 315 of the act (1915 P.L. 736, 748) provides: "In cases of personal injury all claims for compensation shall be forever barred, unless, within one year after the accident, the parties shall have agreed upon the compensation payable under this article; or unless, within one year after the accident, one of the parties shall have filed a petition as provided in article four hereof. In cases of death all claims for compensation shall be forever barred, unless, within one year after the death, the parties shall have agreed upon the compensation under this article; or unless, within one year after the death, one of the parties shall have filed a petition as provided in article four hereof. Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of the making of the last payment."

Claimant asserts that though his petition was not filed for a year and five months after the accident, it was in time because it was filed within a year of the receipt of the compensation paid to him for the two weeks period during which he was in the hospital and absent from work in July-August 1925. The finding below was that he then received payments of compensation, and we cannot disturb that finding, as the evidence of the employer himself supports the inference made by the referee; "Q. Shortly after this time Mr. Hunter was off from work for a short period? A. Yes. Q. You paid him his wages during that period? A. I paid him as compensation. Q. Isn't it a fact you paid him his wages, $30.00 a week? A. I don't know what you call it, I paid him. Q. You paid him his regular wages, $30.00 a week, while he was gone? A. It don't make any difference what it was, I paid him. Q. The same amount while he was away as while there; in other words you didn't dock him any wages while he was away? A. No. Q. You didn't make these payments as being a Workmen's Compensation payment? A. It would be the same wouldn't it? Q. No. It wouldn't be the same. Did you or did you not make that as a Workmen's Compensation payment, or did you make that as paying his wages during the period of disability? A. I just paid him $30.00. Q. Because he needed the money? A. I just paid him." If the employer understood, as he states — that he was paying compensation, he may be taken at his word. And his conduct was commendable, for he testifies, ......" He had been with me fifteen years and I didn't want to keep it off him, and I knowed he would be back in two weeks."

In our view, the provision in the statute that where payments of compensation have been made in any case, the limitations theretofore mentioned in section 315 shall not take effect until the expiration of one year after making the last payment, relates to both sentences that preceded it in the section, with the effect that the one year period of limitations, in the circumstances disclosed in this record, begins at the time of making the last payment of compensation: see Hughes v. Amer. Intl. Shipbldg. Corp., 270 Pa. 27; Chase v. Emery Mfg. Co.,271 Pa. 265; Smith v. Primrose Tapestry Co., 285 Pa. 145, and cases there cited.

Judgment affirmed.