12 Pa. Commw. 488 | Pa. Commw. Ct. | 1974
Opinion by
This is an appeal by a claimant from an order of the Court of Common Pleas of Luzerne County which sus
On February 19, 1966, Peter Tarnoski (Appellant) sustained an injury to his right eye while in the regular course of his employment as a millwright in the Walben division of the Nanarr Corporation( Appellee). This accident, which occurred as Appellant was blowing metal scrap chips from a machine cutter, was immediately reported to supervisory personnel of Appellee. At his employer’s behest, Appellant submitted to medical examinations by a physician retained by Appellee on March 26,1966, April 26,1966, May 24, 1966, and December 21, 1967.
Appellant filed the instant specific loss claim petition on August 4, 1969. By way of answer to this petition, Appellee interposed a defense of the sixteen month statute of limitation then applicable under Section 315 of the Workmen’s Compensation Act.
We must agree with the Board and the court below that Appellant’s petition was not filed within the time framework of Section 315 and is now barred. The applicable law on this provision was recently summarized by this Court, per Judge BLATT, in Palmer v. City of Pittsburgh and Workmen’s Compensation Appeal Board, 9 Pa. Commonwealth Ct. 526, 308 A. 2d 179
Having undertaken an examination or treatment of Appellant’s injury, Appellee may well have been under an obligation to notify him of its attitude toward a potential compensation claim. See Angermier v. Hubley Manufacturing Co., 206 Pa. Superior Ct. 422, 213 A. 2d 171 (1965); Meyers v. Lehigh Valley Transportation Co., 138 Pa. Superior Ct. 569, 10 A. 2d 879 (1940).
For the foregoing reasons, the decision of the court below must be sustained.
Affirmed.
Although the record compiled before the Referee and Board does not reveal the dates of these examinations, the parties have stipulated in the court below as to their accuracy.
Section 315 then provided in pertinent part: “In any case of personal injury all claims for compensation shall be forever barred, unless, within sixteen months after the accident the parties shall have agreed upon the compensation payable under this Article; or unless within sixteen months after the accident, one of the parties shall have filed a petition as provided in Article four hereof.” 77 P.S. §602.
In Angermier v. Hubley Manufacturing Co., supra, the Superior Court quoted with approval the following passage from Vol. 1 Skinner, Pennsylvania Workmen’s Compensation Law, 1964, Supplement, p. 85: “Where a claimant at the request of the insurer submits to a physical examination by the insurer’s physician, the insurer is under a duty to seasonably notify him of its attitude toward his claim, and if it fails to do so until after the statutory period for filing a claim petition has run, it will be estopped from asserting that it is too late.” (206 Pa. Superior Ct. at 426, 213 A. 2d at 173.)
We note, however, that in both Angermier and Meyers the claimant ultimately filed a petition within one year of the last examination, thus satisfying the extended statute of limitation there applicable.