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SCHOOL DISTRICT PHILADELPHIA v. WORKMEN'S COMPENSATION APPEAL BOARD AND ANTHONY ROCCO FABIANO (03/05/75)

decided: March 5, 1975.

SCHOOL DISTRICT OF PHILADELPHIA, APPELLANT,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND ANTHONY ROCCO FABIANO, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Anthony Rocco Fabiano v. School District of Philadelphia, No. P.E. 1203.

COUNSEL

Robert T. Lear, for appellant.

Richard A. Weisbord, with him Freedman, Borowsky and Lorry, for appellee.

Judges Kramer, Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 17 Pa. Commw. Page 526]

On August 24, 1972, Anthony Rocco Fabiano (Fabiano), while in the course of his employment with the School District of Philadelphia (employer), fell off a ladder and sustained injuries to his back. Fabiano's injuries were compensable under the provisions of The Pennsylvania Workmen's Compensation Act (Act)*fn1 and the employer has paid the statutory compensation benefits for total disability since the date of the accident.

As part of the medical services provided by the employer, Fabiano underwent an electromyelogram study on January 23, 1973 which indicated essentially normal results. On February 12, 1973, Fabiano was reexamined by an orthopedic specialist who recommended that, if low back pain continued, a lumbar myelographic study be performed. On April 4, 1973, Fabiano was examined by a neurosurgeon who recommended that he submit to a myelogram,*fn2 but Fabiano refused to follow this recommendation.

On November 19, 1973, the employer filed a petition requesting the Workmen's Compensation Appeal Board (Board) to order Fabiano to submit to a myelogram as a part of a complete physical examination.*fn3 The Board,

[ 17 Pa. Commw. Page 527]

    without hearing, denied the petition on May 14, 1974. This appeal followed and we remand to the Board.

Three sections of the Act are relevant to our consideration and disposition of this appeal. In pertinent part, they read as follows:

"At any time after an injury the employe, if so requested by his employer, must submit himself for examination, at some reasonable time and place, to a physician or physicians legally authorized to practice under the laws of such place, who shall be selected and paid by the employer. If the employe shall refuse upon the request of the employer, to submit to the examination by the physician or physicians selected by the employer, the board may, upon petition of the employer, order the employe to submit to an examination at a time and place set by it, and by the physician or physicians selected and paid by the employer, or by a physician or physicians designated by it and paid by the employer. The board may at any time after such ...


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