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JAMES BYRD v. WORKMEN'S COMPENSATION APPEAL BOARD (TEMCO SERVICES INDUSTRIES ET AL.) (04/04/84)

decided: April 4, 1984.

JAMES BYRD, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TEMCO SERVICES INDUSTRIES ET AL.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of James Byrd v. Temco Services Industries, No. A-81680.

COUNSEL

Robert J. Murphy, Murphy, Murphy & Murphy, P.C., for petitioner.

Joseph S. Bekelja, Margolis, Edelstein, Scherlis, Sarowitz and Kraemer, for respondent, Temco Services Industries et al.

Judges Craig, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 81 Pa. Commw. Page 326]

Before this Court is an appeal by James Byrd (Claimant) from a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's granting of Temco Services Industries' (Employer) petition to terminate benefits.*fn1

Claimant fell and injured his knee while in the course of his employment on February 18, 1977. Pursuant to a notice of compensation payable, he was granted workmen's compensation benefits of $106.27 per week. While being treated for his knee injury, Claimant continued to limp and complain of pain. Thus, in July of 1977 he was referred to Dr. Martin Beller to undergo a series of diagnostic procedures including x-rays and an arthogram. Dr. Beller diagnosed Claimant's problem as a strain of the knee and prescribed a thereapy program which consisted of quadriceps strengthening exercises, whirlpool treatment, heat and massage. Employer's insurance carrier agreed to the therapy program and it was implemented under the auspices of Dr. Beller on July 21, 1977. The program was curtailed, however, when Claimant cancelled eight of the twelve sessions scheduled through August 16, 1977. On September 29, 1977, Employer filed the petition which is the subject of the instant appeal, asserting that Claimant, by not cooperating in the prescribed therapy program, had effectively refused treatment and had accordingly forfeited his right to compensation under Section 306(f) of The Pennsylvania Workmen's Compensation Act (Act).*fn2 Shortly thereafter, on October 22, 1977, Claimant's knee "buckled" while he was walking and he fractured

[ 81 Pa. Commw. Page 327]

    his kneecap. Claimant ascribed this incident, and his resulting further disability, to a basic weakness of his knee stemming from his work-related injury of February, 1977. Employer denied this in conjunction with proceedings emanating from its termination petition by asserting that, but for Claimant's refusal of treatment for his original injury, he would have fully recovered before the October 22nd incident. At hearings on the termination petition held before a referee, testimony was presented by Claimant, Dr. Beller, an adjustor for Employer's insurance carrier who dealt with Claimant's case and the physician who treated Claimant after his fractured kneecap. Subsequent to the hearings, the referee found as fact that Claimant had missed eight of the scheduled therapy sessions, had no legitimate reason for so doing, and would have recovered had he followed the prescribed course of therapy. The referee therefore concluded that Claimant had refused treatment and thus had forfeited his right to benefits from August 15, 1977, on.*fn3 On appeal of the referee's decision, the Board remanded for a specific finding as to the actual extent to which Claimant's refusal of treatment had affected the disability resulting from his knee injury. See Matje v. City of Philadelphia, Police Department, 11 Pa. Commonwealth Ct. 99, 312 A.2d 470 (1973). The referee made a finding that 100% of Claimant's continuing disability was attributable to his lack of treatment. In this light, the Board affirmed the suspension of benefits and the appeal to this Court followed.

Section 306(f) of the Act reads, in pertinent part:

If the employe shall refuse reasonable services of duly licensed practitioners of the healing arts, surgical, medical and hospital services,

[ 81 Pa. Commw. Page 328]

    treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or any increase in his incapacity ...


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