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ROADWAY EXPRESS v. WORKMEN'S COMPENSATION APPEAL BOARD (OSTIR) (02/12/87)

decided: February 12, 1987.

ROADWAY EXPRESS, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (OSTIR), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Michael Ostir v. Roadway Express, Inc., No. A-86297.

COUNSEL

Richard L. Bush, for petitioner.

Terrence V. Gallagher, for respondent, Michael Ostir.

Judges MacPhail and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 104 Pa. Commw. Page 8]

Petitioner, Roadway Express, Inc., appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's order granting Michael Ostir's (Ostir) claim petition and directing Petitioner to pay for Ostir's treatment at a pain clinic, transportation costs and counsel fees.

The undisputed facts are that on March 20, 1981, Ostir sustained a back injury in the course of his employment with Petitioner. As a result of this injury, Ostir was hospitalized and came under the treatment of Dr. Laszlo Kiraly. Examination of Ostir revealed spasms of the left para spinal muscles with pain on pressure. Ostir was again hospitalized in June, 1981 when he underwent intensive conservative treatment. However, his improvement was minimal.

Ostir was referred to a specialist, Dr. Severino Piczon, because of his recurrent pain. Physical therapy and exercise did not produce improvement in Ostir's condition. Dr. Piczon could not provide Ostir with further beneficial therapy and, he recommended that Ostir attend a pain clinic. Dr. Kiraly also recommended a pain clinic and referred Ostir to the Our Lady of

[ 104 Pa. Commw. Page 9]

Lourdes Memorial Hospital Pain Clinic in New York. After examination at the pain clinic, the examining doctor prescribed that Ostir attend the clinic for approximately four weeks.

At that time Ostir was receiving maximum weekly temporary total disability benefits but, in September, 1981, he filed a Claim Petition for additional medical services requesting prior authorization for treatment to be rendered at the pain clinic. Petitioner protested and a hearing was held. The referee concluded that the recommended medical treatment at the pain clinic was reasonable and necessary. The Board affirmed the referee, and Petitioner appealed to this Court. Petitioner asserts that the referee's determinations were not supported by substantial evidence, transportation costs were improperly awarded, and the imposition of counsel fees was in error.

On appeal, our review of an administrative agency's action is limited to a determination of whether the adjudication is in violation of the constitutional rights of the Petitioner, is not in accordance with the law, or whether a finding of fact necessary to support the agency's adjudication is unsupported by substantial evidence. 2 Pa. C.S. ยง 704; Estate of McGovern v. State Employees' Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986).

Petitioner first asserts that the referee's finding that attendance at the pain clinic was reasonable and necessary was in error. Our first inquiry, then, is to determine whether ...


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