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BOSTIC v. DREHER ET AL. (09/16/65)

decided: September 16, 1965.

BOSTIC
v.
DREHER ET AL., APPELLANTS



Appeal from judgment of Court of Common Pleas No. 8 of Philadelphia County, Dec. T., 1964, No. 1725, in case of Alvin L. Bostic v. George Dreher et al.

COUNSEL

Paul J. Senesky, with him Joseph J. Murphy, and Murphy & Senesky, for appellants.

Carl M. Mazzocone, with him Sheer & Mazzocone, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J.

Author: Wright

[ 206 Pa. Super. Page 258]

This is a workmen's compensation case. The insurance carrier has appealed from an order of the court of common pleas sustaining the refusal of the compensation authorities to terminate compensation. The primary question involved is whether the claimant was

[ 206 Pa. Super. Page 259]

    justified in refusing to submit to a second myelogram.*fn1

Alvin L. Bostic, the claimant, was employed by George Dreher as a laborer. On July 10, 1962, while loading a conveyor, claimant was struck by a stone and injured his lower back. An open agreement was executed calling for payment of compensation for total disability. On October 14, 1963, the insurance carrier filed a petition for termination alleging that claimant's disability had ceased, to which petition claimant filed an answer. After taking testimony, the Referee found that claimant was still totally disabled, and that claimant was "reasonably apprehensive" about submitting to a second myelogram. The termination petition was therefore dismissed and compensation payments were continued. The Board affirmed the Referee. As previously indicated, the court of common pleas affirmed the Board, and the insurance carrier has appealed.

The record discloses that the original myelogram by Dr. Frederick Goeringer, Chief Orthopedic Specialist at the Misericordia Hospital, revealed a small defect at the interspace between L-5 and S-1. According to claimant's testimony, he was willing to submit to a laminectomy and Dr. Goeringer wanted to perform that operation. However, the insurance carrier objected and demanded that claimant submit to a second myelogram. Its witness was Dr. Leonard Klinghoffer, a staff specialist in orthopedic surgery at Graduate Hospital, University of Pennsylvania, who first examined claimant on November 6, 1962. He was of the opinion that claimant "probably had a herniated disc". He attempted to treat claimant by pelvic traction, but this did not improve the condition. Dr. Robert Andrew, neurosurgeon, was then called into consultation.

[ 206 Pa. Super. Page 260]

With regard to the first myelogram, Dr. Klinghoffer testified as follows: "Dr. Andrew wasn't impressed with it too much and he thought he would like to see another myelogram. If this questionable finding was seen again, then it would have significance. On the basis of this alone he didn't think he would want to make a diagnosis of a herniated disc".

Section 314 of The Pennsylvania Workmen's Compensation Act*fn2 requires an injured employe to submit himself for physical examination, and provides that refusal or neglect to do so, without reasonable cause or ...


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