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LESTER R. MUSE v. WORKMEN'S COMPENSATION APPEAL BOARD (WESTERN ELECTRIC COMPANY) (05/07/85)

decided: May 7, 1985.

LESTER R. MUSE, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (WESTERN ELECTRIC COMPANY), RESPONDENTS



Appeal from the Orders of the Workmen's Compensation Appeal Board in case of Lester R. Muse v. Western Electric Company, Nos. A-77461 and A-84326.

COUNSEL

C. George Milner, for petitioner.

Earl T. Britt, with him, Catherine Hill Kunda, Duane, Morris & Heckscher, for respondent, Western Electric Company.

Judges Craig and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Williams, Jr. did not participate in the decision in this case.

Author: Blatt

[ 89 Pa. Commw. Page 172]

Lester R. Muse (claimant) appeals here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision granting the petition for modification filed by the Western Electric Company (employer).

[ 89 Pa. Commw. Page 173]

The claimant sustained a work-related injury diagnosed as a bilateral hernia on February 16, 1973 for which he was awarded benefits. He underwent surgery on June 23, 1973 and subsequently executed a Final Receipt on November 21, 1973. His benefits were reinstated in 1977, however, when it was determined by the Board that the surgery had caused the atrophy of his right testicle together with contraction of the right spermatic cord.*fn1 The employer's physician recommended a second operation to surgically remove the claimant's right testicle and spermatic cord, which the claimant refused. The employer then filed its Petition for Modification asserting that the claimant had forfeited any right to further compensation under Section 306(f) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 531.

The referee originally dismissed the employer's petition, finding that the claimant's refusal to undergo a second operation was "not unreasonable considering the nature and extent of the operative procedure as well as the possible complications." The Board reversed, holding that the determination of whether or not the proffered medical services were reasonable was a question of law and stating further that, because all surgery involves certain risks, the surgery recommended here, which involves only minimal risks, must be considered reasonable under Section 306(f) of the Act. The Board then remanded the case to the referee with instructions to determine the amount of benefits forfeited by the claimant. The

[ 89 Pa. Commw. Page 174]

    referee, however, while finding again that the claimant's refusal to undergo surgery was not unreasonable, held that he was "constrained to conclude that the Claimant has refused reasonable surgical services and therefore forfeits all rights to compensation beginning December 8, 1977 which is three months from the date that he was offered such surgery." The present appeal ensued.*fn2

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

If the employe shall refuse reasonable services of duly licensed practitioners of the healing arts, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or any ...


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