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H.B. SPROUL CONSTRUCTION CO. v. COMMONWEALTH PENNSYLVANIA (07/08/81)

decided: July 8, 1981.

H.B. SPROUL CONSTRUCTION CO., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ANGELO SANSONE, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Angelo J. Sansone v. H.B. Sproul Construction Co., No. A-76575.

COUNSEL

Kathleen Lenahan, with her, John R. Lenahan, Jr., Lenahan and Dempsey, for petitioner.

Angelo Sansone, respondent for himself.

Judges Mencer, Blatt and MacPhail, sitting as a panel of three. Judge Wilkinson, Jr. did not participate in the decision in this case.

Author: Per Curiam

[ 60 Pa. Commw. Page 415]

The employer*fn1 appeals here from an order of the Board*fn2 reversing the decision of the referee which had suspended compensation payments to the claimant.*fn3 The suspension was ordered by the referee because of the claimant's failure to submit to a medical examination at the employer's request in the course of the claimant's petition for modification of an earlier order.

In 1972, the claimant was awarded workmen's compensation benefits on the basis of total disability as the result of an injury sustained in the course of his employment.*fn4 On April 9, 1973, after a hearing on the petition of the employer's insurance carrier to terminate benefits, the referee modified the award from total disability to a 30 percent partial disability and the Board affirmed this determination. The claimant did not appeal. The claimant filed a petition on March 11, 1975, however, to modify the award from partial to total disability.

At a hearing on May 6, 1975, after both the claimant, appearing pro se, and his medical witness had testified and the claimant had rested, the employer asked that the claimant be examined by Dr. William A. Black, and the claimant refused. On January 16, 1976, upon the further petition of the employer, the Board ordered the claimant to appear for examination by Dr. Black. The claimant again refused and the

[ 60 Pa. Commw. Page 416]

    employer then petitioned the referee to suspend compensation until such time as the claimant complied with the Board's order which was done. Dr. Black eventually examined the claimant on October 4, 1977 and testified at a hearing on the claimant's petition for modification held on January 1, 1978.*fn5 At this hearing, the employer then requested that the claimant be examined by a second doctor, a Dr. Park, and the hearing was continued pending this second examination. On January 16, 1978 the referee issued an interim decision reinstating the claimant's partial disability payments which had been suspended during the period the claimant had refused to be examined by Dr. Black.*fn6 The claimant refused to submit to the second examination and on April 19, 1978 the Board, upon petition of the employer, once again ordered him to appear for such examination. He continued to refuse, and the employer again petitioned to have the award suspended. Then, after a hearing on this petition, at which the claimant appeared but refused to remain, the referee, saying that he acted pursuant to Section 314 of the Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 651, suspended compensation as of May 11, 1978, the date of the claimant's unkept appointment with Dr. Park.

Upon appeal from this suspension of May 11, 1978, the Board deemed the claimant's refusal to appear for a second examination by a second physician to have been reasonable, reversed the referee and remanded the matter to the referee for decision on the

[ 60 Pa. Commw. Page 417]

    claimant's petition to modify compensation. The Board pointed out that the employer's petition, which had prompted the Board to order that the claimant be examined by Dr. Park, had not informed the Board that a petition to modify was pending. It also noted that the Board had already ordered the claimant examined by Dr. Black, and that Dr. Black had actually conducted the examination and thereafter testified at the modification proceeding. The Board noted that (1) the claimant had petitioned to modify compensation, (2) he had testified himself and presented his medical witness and (3) Dr. Black had examined the claimant and had ...


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