Appeal from the Order of the Workmen's Compensation Appeal Board in case of Sigmond Lenart v. Frank O. Patterson, t/a Patterson Supply Co. and Pennsylvania Manufacturers' Association Insurance Company, Insurance Carrier, No. A-63915.
Harold V. Fergus, Jr., with him Scott H. Fergus and Fergus, Martin and Fergus, for appellants.
Paul N. Barna, with him Barna and Barna, for appellee.
Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.
On August 23, 1967, Sigmond Lenart (Lenart), while in the course of his employment with Frank O. Patterson, trading as Patterson Supply Company,*fn1 of Monongahela, Pennsylvania (Patterson), suffered an accidental injury resulting in a comminuted fracture of the tibia and fibula of his left leg. On September 7, 1967, Lenart and Patterson executed a compensation agreement and, in accord with its terms, Lenart was paid the sum of $52.50 each week from August 23, 1967 to December 3, 1968, for total disability resulting from the accidental injury of August 23, 1967.
Patterson filed a termination petition, dated January 20, 1969, alleging that on December 4, 1968, Lenart was able to return to work without a loss in earnings. Following a hearing, the Workmen's Compensation Referee dismissed Patterson's termination petition and ordered payments of compensation under the said compensation agreement to be reinstated and to continue for an indeterminate period, not to exceed the limitations provided by law. Patterson appealed to the Workmen's Compensation Appeal Board (Board) from the Referee's decision. The Board affirmed the Referee's determination and dismissed Patterson's appeal. Patterson then filed this appeal.
Since Patterson initiated proceedings to terminate compensation payments being made to Lenart under a compensation agreement, the burden of proof is upon Patterson to show (1) that Lenart's disability from the accident has ceased and (2) that Lenart was no longer entitled, after December 4, 1969, to such payments. Pellegrino v. Baldwin-Lima-Hamilton Corporation, 5 Pa. Commonwealth Ct. 150, 289 A.2d 531 (1972).
Where, as here, the decision of the Board is against the party having the burden of proof, the question on appellate review is whether the findings of the Board are consistent with each other and with its conclusions of law and its order and can be sustained without a capricious disregard of competent evidence. Sherred v. Pittsburgh, 7 Pa. Commonwealth Ct. 401, 299 A.2d 381 (1973); Frombach v. United States Steel Corp., 2 Pa. Commonwealth Ct. 556, 279 A.2d 779 (1971). "To constitute a capricious disregard there must be a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence could not possibly have avoided in reaching the result." Brown v. Atlantic and Gulf Stevedores, Inc., 2 Pa. Commonwealth Ct. 481, 483, 279 A.2d 372, 373 (1971).
Patterson raises three questions here which we will briefly discuss. First, he asserts that Lenart is not entitled to benefits because of that portion of Section 306(e) of the Workmen's Compensation Act,*fn2 as amended and renumbered, 77 P.S. § 531, which reads as follows: "If the employe shall refuse reasonable services of duly licensed practitioners of the healing arts, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or any increase in his incapacity shown to have resulted from such refusal."
The difficulty with Patterson's contention is that the record does not disclose that Lenart either (1) refused medical services or (2) that any of his injuries or any increase in his incapacity was a result of his refusal. Lenart was in a full leg cast from groin to foot from the date of the accident, August 23, 1967, until March 18, 1969, with the exception of a five-day period in March of 1968.*fn3 Following bone graft surgery and the placement of an intermedullary nail from the knee to the ankle on March 27, 1968, Lenart was again placed in a leg cast. Upon his release from the hospital on April 13, 1968, his doctor testified that "I advised [Lenart] when to see me in the office or the hospital with specific instructions as to follow-up care."*fn4 The doctor never disclosed what the instructions were or more importantly when it was that Lenart was to see him. Lenart testified that the doctor told him "to come back"*fn5 and "we're going to leave this cast on a little bit longer than what we did the last time."*fn6 The initial cast and its replacement were on seven months. In any event, Lenart did not return for nearly twelve months. However, we view this, not ...