A claim for the specific loss of an eye 27 years after the eye was infected is held compensable when the claim is filed within three years of the date the claimant was notified that the condition had progressed to the point where she lost her vision.

The claimant, a licensed practical nurse, developed an infection of her left eye in 1980 when a patient with herpes simplex virus coughed, causing sputum to spray into her eye. The infection and associated loss of vision returned numerous times over the years, and each time the claimant received treatment and the condition dissipated. In 2006, the infection recurred and did not improve with treatment, resulting in the complete loss of vision in the eye by February 2007, which a subsequent cornea transplant could not correct. The claimant filed a claim petition in March 2007, seeking specific loss of the eye. The workers' compensation judge granted the claim petition, finding that, despite the fact that the claimant could not recall the date of the original work incident, there was sufficient evidence of an initial infection in February 1980 during the course of her employment, of which the claimant provided notice to the employer. The workers' compensation judge found the Actual date of injury was May 16, 2007, the date her physician informed her that the scaring of her cornea from the chronic infection had progressed to the point where she was legally blind. The workers' compensation judge further found that the claimant's wage rate was based upon her wages in May 2007, despite the fact she had not worked for the employer for more than 20 years. A specific award of 275 weeks plus a 10-week healing period was awarded. The WCAB affirmed the workers' compensation judge's decision. The Commonwealth Court also affirmed the decision, ruling that the evidence supported the finding that the claimant's loss of sight was the result of the work-related exposure to the virus, including credible claimant testimony. The court upheld the date of injury, since in specific loss cases under §306 (c), the date of injury is when the claimant is notified by a doctor that the loss of use is for all practical intents and purposes and is job-related, and the compensation rate must be based upon the average weekly wage at that time. The employer's argument that the claim was barred by §315 of the Act, which provides for a three-year Statute of Limitations from the date of injury, was rejected because the date of injury is not the date of infection but the date of the specific loss.

Case Law Alert, 2nd Qtr 2010