Appeal from judgment of Court of Common Pleas of Somerset County, No. 314 C.D. 1963, in case of Reuben W. Beener v. North American Machine Co., Inc. et al.
Gene E. McDonald, with him Nathaniel A. Barbera, and Lightcap, McDonald & Moore, and Shaver & Barbera, for appellant.
Penrose Hertzler, for appellees.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J.
[ 204 Pa. Super. Page 507]
This is an appeal from the judgment of the Court of Common Pleas of Somerset County entered in a workmen's compensation case in favor of the defendant-appellee, North American Machine Co., Inc., and the intervening defendant-appellee, Old Republic Insurance Company and against Reuben W. Beener, the claimant-appellant.
The claimant was employed by the North American Machine Co., Inc. He was operating a grinding machine when he injured his back on December 5, 1956.
[ 204 Pa. Super. Page 508]
A compensation agreement was executed by the parties and under it the claimant had received compensation for a period of 212 weeks from December 6, 1956 to December 28, 1960, inclusive, with interest, in a total amount of Eight thousand three hundred thirty-five dollars and fifty-eight cents ($8335.58). Several petitions to terminate were filed by the defendants during the period but were denied.
The petition before us on this appeal dated January 13, 1961, is a petition to terminate as of December 28, 1960, not on the ground that disability had ceased, as in prior losing petitions, but in accordance with § 306(f) of the Act of June 21, 1939, P. L. 520, 77 PS § 531, as amended, the pertinent parts of which read as follows: ". . . If the employe shall refuse reasonable services rendered by duly licensed practitioners of the healing arts, surgical, medical and hospital services, treatment, medicines and supplies, tendered to him by his employer, he shall forfeit all rights to compensation for any injury or any increase in his incapacity shown to have resulted from such refusal."
The petition set forth that the defendants had tendered surgical and hospital services for the fusion of the fourth and fifth lumbar vertebrae and the sacrum and that the claimant had refused to submit to surgery. In the claimant's answer he denied that he had refused the recommended surgery but that he was ready to have it performed by a doctor of his own selection, Dr. John Royal Moore, of Temple University Hospital, Philadelphia, Pa. The referee, after hearing, found the following facts:
"Fourth: That the total disability of the claimant since the date of his accident has been caused by an aggravation of a pre-existing condition, a congenital condition in claimant's spinal column, described as a defect in the pedicle of the fifth lumbar ...