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FRANCES X. FASCIANA v. AETNA LIFE & CASUALTY COMPANY (05/31/85)

filed: May 31, 1985.

FRANCES X. FASCIANA, APPELLEE,
v.
AETNA LIFE & CASUALTY COMPANY, APPELLANT



Appeal from Judgment of the Court of Common Pleas, Civil Division, of Lackawanna County, No. 81 Civil, 7439.

COUNSEL

Paul A. Barrett, Scranton, for appellant.

Alan P. Schoen, Scranton, for appellee.

Wieand, Del Sole and Popovich, JJ. Del Sole, J., files a concurring opinion.

Author: Wieand

[ 343 Pa. Super. Page 2]

Frances Fasciana sustained fractures of her right femur, right clavicle, left ankle, fibula and tibia as a result of a

[ 343 Pa. Super. Page 3]

    vehicular accident occurring on June 26, 1978. Aetna Life & Casualty Co. (Aetna), which had written no-fault insurance coverage for the vehicle which she had been driving, paid work loss benefits and medical benefits, including the cost of physical therapy treatments rendered prior to June 24, 1980. It refused to reimburse her for the cost of physical therapy treatments rendered between June 24, 1980 and October 19, 1982 on grounds that they were not "reasonably necessary." Ms. Fasciana filed this action to recover the cost of such treatments and also to recover counsel fees. Following trial without jury, the court found that she was entitled to recover costs of physical therapy in the amount of $7,037.90, plus interest, and counsel fees in the amount of $2,045.00. Exceptions were dismissed, and judgment was entered on the verdict. Aetna appealed.

The Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, § 103, 40 P.S. § 1009.103, specifically allows recovery for "reasonable charges incurred for . . . reasonably needed and used products, services, and accommodations for . . . medical and vocational rehabilitation services." (emphasis added). Medical and vocational rehabilitation services include physical therapy.

The evidence in this case showed that a metal pin previously inserted in appellee's leg had been removed in January, 1980. Dr. Raklewicz, the treating orthopedic surgeon, recommended that appellee return to her work as a secretary. She did not return to work until April, 1980. After three days she complained of pain, swelling, and weakness in her leg, which she attributed to the need to operate a floor button on dictating equipment. She informed Dr. Raklewicz of her complaint, but he declined to examine or treat her further. Appellee's family doctor, who was continuing to treat her, referred her to Geisinger Medical Center for an orthopedic evaluation. There she was examined by Dr. G.L. Wolfgang on June 4, 1980; he also told her that there was nothing further to be done other than for her to exercise and use her limbs. He advised her to return to work and "strongly recommended

[ 343 Pa. Super. Page 4]

    that she stop shopping around for physicians and get busy with exercises and physical therapy." Ms. Fasciana sought another medical opinion from Dr. Christopher Metzger. He examined her and prescribed physical therapy. Dr. Metzger did not tell his patient how long to continue physical therapy; and appellee continued such treatments until October 19, 1982. When appellee consulted Dr. Metzger in November, 1980, it was his assessment that she was benefitting from physical therapy; and, therefore, he recommended that it be continued. He told her at that time that he could do nothing further for her and that exercise was the best means for strengthening the leg. He testified that the benefits from therapy had peaked by October, 1982 and that future therapy would serve only to maintain strength in the leg.

This evidence was sufficient to support the finding of the trial court that physical therapy was reasonably necessary in the months preceding November, 1982. It is correct, as appellant contends, that there was conflicting evidence. Dr. Metzger's records contained an entry made in June, 1980, that "there is absolutely nothing further that I would offer or could offer at the present time . ...


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