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COMMONWEALTH PENNSYLVANIA v. PACIFIC INTERMOUNTAIN EXPRESS (10/20/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 20, 1977.

COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JERRY BUTLER
v.
PACIFIC INTERMOUNTAIN EXPRESS, APPELLANT

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Jerry Butler v. Pacific Intermountain Express, No. A-69458.

COUNSEL

Raymond F. Keisling, with him Will & Keisling, for appellant.

David A. Ody, with him James N. Diefenderfer, for appellees.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 32 Pa. Commw. Page 217]

Pacific Intermountain Express (PIE) has appealed an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's determination that PIE should provide payment for all services rendered by Dr. Ronald J. Brozich to its employee, Jerry Butler.

After Butler sustained a back injury while in the course of his employment, he was advised by his supervisor to obtain medical services from any doctor. Butler chose to be treated by Dr. Brozich, a duly licensed doctor of chiropractic.

[ 32 Pa. Commw. Page 218]

During Butler's third visit, Dr. Brozich explained that he had found a misalignment of the second vertebra. He recommended a 4-month course of treatment which would cost $1,150. At Butler's request, Dr. Brozich called PIE to explain the treatment and the fee, at which time he was apparently authorized to begin the program.

On August 24, 1973, after about a month of treatment, Dr. Brozich and Butler were suddenly informed that the employer would not accept responsibility for further services rendered by the chiropractor. Butler was advised that further treatment could be obtained only from among five designated physicians. Although he once saw one of the physicians, Butler nevertheless continued his course of treatment with Dr. Brozich.

Because PIE refused to pay for that part of Dr. Brozich's fee which concerned services rendered after August 24, 1973, Butler filed a petition claiming payment for services as provided in Section 306(f) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531.*fn1 After several hearings before a referee, at which Butler was unrepresented, a determination was made that PIE should pay Dr. Brozich's fee in its entirety. When PIE's appeal to the Board was dismissed, the employer appealed to this Court.

[ 32 Pa. Commw. Page 219]

The only issue before this Court is whether PIE should provide payment for services rendered by a duly licensed chiropractor, chosen by an injured employee with PIE's initial approval, after PIE subsequently informs the employee that his choice must be restricted to among five designated physicians. We agree with the Board that PIE should pay for the services.

Our Supreme Court has recently determined that an employee's right to reasonable medical services is more fully protected if the choice as to the kind of treatment is left as much as possible with the employee. Thus, in Workmen's Compensation Appeal Board v. Overmyer Mold Co., Pa. , 374 A.2d 689 (1977), the employer was required to pay a bill for services rendered by a doctor of chiropractic during a 3-month course of treatment for a lower back injury. Payment was ordered even though the claimant knew that certain physicians had been designated to treat injured employees and had been clearly warned that extended treatment by a chiropractor might not be paid for by the employer. The Court reasoned that under § 306(f) an employee must choose a designated physician only if he chooses to be treated by a physician. When an employee prefers another kind of treatment, he may choose a duly licensed practitioner of the healing arts, such as a doctor of chiropractic, to render it.

The reasoning of Overmyer applies a fortiori to the instant case, where the employer accepted the treatment on the terms quoted by Dr. Brozich. PIE's subsequent instructions that Butler was no longer to obtain treatment from Dr. Brozich but rather was to seek medical services from among five designated physicians did not diminish Butler's right to receive the kind of treatment he desired.

Therefore, we make the following

[ 32 Pa. Commw. Page 220]

Order

And Now, this 20th day of October, 1977, the appeal of Pacific Intermountain Express is hereby dismissed, and the order of the Workmen's Compensation Appeal Board, dated June 26, 1975, is affirmed. Accordingly, Pacific Intermountain Express is directed to pay to Dr. Ronald J. Brozich the sum of $1,150 in payment of the services rendered the claimant, Jerry Butler.

Disposition

Affirmed.


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