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WILLIAM A. FOWLER v. COMMONWEALTH PENNSYLVANIA (11/17/78)

decided: November 17, 1978.

WILLIAM A. FOWLER, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JERAS CORP. (TROJAN POWDER CO.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of William A. Fowler v. Jeras Corp. (Trojan Powder Co.) No. F.M. 3592.

COUNSEL

Graham C. Showalter, for petitioner.

Jack I. Kaufman, with him James N. Diefenderfer, for respondents.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 38 Pa. Commw. Page 504]

This is a petition for review filed by William A. Fowler (Claimant) from a decision of the Workmen's Compensation Appeal Board (Board) disposing of Claimant's request for future medical expenses, counsel fees and costs. The Board affirmed the referee's findings with respect to each item and also affirmed the referee's finding that the Claimant had received an over-payment of $522.50, which said sum the Board

[ 38 Pa. Commw. Page 505]

    ordered could be offset by Jeras Corp. (Jeras) against any obligations Jeras incurred by reason of the Board's new order.

When the petition for review was filed with this Court, Jeras filed a motion to dismiss and a motion to quash the petition. By order dated August 31, 1977, President Judge Bowman denied the motion to dismiss but granted the motion to quash the matters set forth in paragraphs 6(b) and 6(c) of the petition which related to Claimant's request for counsel fees for the period from November 23, 1973, to October 30, 1975, and costs for the same period. No appeal was taken from that order. Even though these matters were briefed by Claimant (and by the Board as well) we consider the prior order of this Court dated August 31, 1977, to be a final disposition of those matters and consequently they will not be discussed in this opinion.

Claimant was injured on August 8, 1962, while in the employ of Jeras. He suffered fractures of both legs, and an arm injury requiring the amputation of his left arm at the carpo-metacarpel level. A compensation agreement was executed by the Claimant and his employer on August 14, 1963. Since that time there have been numerous petitions before the Board. The most recent one was in the form of a supplemental petition for further medical expenses, costs and counsel fees. It is from the Board's decision on that petition that the instant appeal was taken.

The referee found that the Claimant would require further medical services for a period in excess of three (3) years from October 30, 1975. He found that those services were causally related to the restoration of Claimant's earning power. Claimant presented no testimony on the estimated cost of those services. The referee made no finding of fact with respect to the cost of such services. The Board estimated the cost

[ 38 Pa. Commw. Page 506]

    of such services at $500.00 per year based upon the cost of past services. The Claimant objects that the Board erred because it considered the cost of past medical services for the last five years only, whereas it should have considered the past seven years. Had the Board done so, the result would have been an award in excess of $900.00 per year rather than $500.00. The burden of proving the estimated cost of future medical services is upon the Claimant. Workmen's Compensation Appeal Board v. Host Motel of Wilkes-Barre, Inc., 17 Pa. Commonwealth Ct. 624, 333 A.2d 833 (1975). Under the statute in effect at the time of Claimant's injury*fn1 the Board was authorized to order further medical, surgical and hospital expenses but was required to specify the maximum period and the maximum cost for the employee's rehabilitation. The Act also provided that the cost of such hospital treatment, service and supplies should not exceed the prevailing charges for similar services to other individuals. Denne v. Plymouth Coal Mining Co., 91 Pa. Superior Ct. 429 (1927), held under the provisions of a similar statute that the amount of such costs should be reasonable and that the amount was primarily a question of fact to be determined under the evidence by the fact-finder. Here, the Board decided that it was reasonable to measure future services by the cost of past services. Claimant does not disagree ...


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