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TORTORICE v. CAPITAL BRICKWORK CONSTRUCTION (03/20/69)

decided: March 20, 1969.

TORTORICE, APPELLANT,
v.
CAPITAL BRICKWORK CONSTRUCTION, INC.



Appeal from order of Court of Common Pleas of Philadelphia County, March T., 1968, No. 974, in case of Samuel Tortorice v. Capital Brickwork Construction, Inc. et al.

COUNSEL

Charles F. Quinn, with him Sheer & Mazzocone, for appellant.

John F. Ledwith, with him Joseph R. Thompson, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Watkins, J.

Author: Watkins

[ 214 Pa. Super. Page 249]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County by the claimant-appellant, Samuel Tortorice, that affirmed an order of the Workmen's Compensation Board directing the claimant to submit to shock therapy under pain of forfeiture of benefits under Section 306(F) of the Workmen's Compensation Act of Pennsylvania, 77 P.S. ยง 531.

The claimant on February 7, 1962 was carrying a bucket of gasoline and tripped so that the gasoline splashed over most of his body and, because of his proximity to an open flame, he became a human torch.

[ 214 Pa. Super. Page 250]

The physical injury sustained eventually healed, but psychiatric damage never healed. From February 7, 1962, to the present, he has been totally disabled, first on a physical basis and then on a psychiatric basis.

On July 13, 1965, the referee found, in a petition to terminate filed by the appellee herein, that the claimant continued to be totally disabled but ordered him to submit to therapy at the expense of the defendant-appellee, Liberty Mutual Insurance Company. The order was dated July 13, 1965. The carrier appealed.

The Board affirmed the referee's decision as to total disability but vacated the order for shock therapy holding that there was "no legally acceptable basis for the referee's fourth finding of fact which we vacate and set aside." This fourth finding of fact, so vacated, was the order to submit to shock treatment. The Board's decision was dated April 14, 1966. No appeal was taken from this decision.

The insurance carrier had the claimant re-examined and then filed a petition for modification on the ground that "the disability of this employe has been reduced to 35% partial disability. . . ." This petition was heard by the same referee who had held that the carrier did not sustain its burden of proof in the hearing of July 13, 1965. The referee again held that the claimant was still totally disabled and dismissed the Petition to Modify on April 17, 1967. The carrier appealed.

The Board affirmed the finding of total disability, but although such a request was not contained in the petition to modify, directed the claimant to submit to shock therapy under pain of forfeiture of benefits under Section 306(F), supra. The claimant appealed from the action of the ...


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