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HAROLD W. MENGES v. WORKMEN'S COMPENSATION APPEAL BOARD (CARNATION COMPANY) (12/10/85)

decided: December 10, 1985.

HAROLD W. MENGES, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CARNATION COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Harold W. Menges v. Carnation Company, No. A-87357.

COUNSEL

Morrison B. Williams, Rudisill, Guthrie, Williams & Nonemaker, for petitioner.

Edward E. Knauss, Metzger, Wickersham, Knauss & Erb, for respondent, Carnation Company.

Judges Rogers and Barry, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 93 Pa. Commw. Page 396]

Harold W. Menges (claimant) has filed a petition for review of an order of the Workmen's Compensation Appeal Board (board) affirming a referee's order that the claimant's workmen's compensation for a work-related disability should be reduced by 50%.

[ 93 Pa. Commw. Page 397]

The claimant sustained a compound fracture and dislocation of the left ankle, and a deep laceration of the left upper shin bone while working for the Carnation Company (employer). He underwent two operations on his ankle. The claimant wears a leg brace, is 100% disabled and was granted compensation for temporary total disability at the rate of $213.00 per week. Dr. John T. Danyo, the claimant's treating physician, has recommended that the claimant undergo further surgery which the doctor believes will reduce his pain and improve the condition of his foot. The claimant has refused this surgery.

The employer filed a petition to terminate or modify the claimant's benefits pursuant to Section 306(f) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 15, 1915, P.L. 736, as amended, 77 P.S. ยง 531(4), which provides in pertinent part:

If the employee 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 increase in his incapacity shown to have resulted from such refusal.

Hearings were held before Referee Edward J. Dumm who concluded that as a matter of law the employer did not meet the burden of proof necessary to terminate or modify compensation for claimant's refusing medical treatment as described in 306(f) of the Act; and ordered the employer to continue payment of compensation to the claimant at a rate of $213.00 per week.

The employer appealed Referee Dumm's decision and order to the board which remanded the case to Referee Harold W. Budding because the record had been closed ...


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