Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 3044 C.D. 1983, dated May 1985.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a dissenting opinion in which Hutchinson and Papadakos, JJ., join.
On February 16, 1973, Lester R. Muse (hereinafter "claimant") suffered a bilateral hernia which was classified as a work-related injury. Surgery was performed on June 23, 1973, to correct the impairment and a final receipt was executed on November 21, 1973, with regard to the claimant's workmen's compensation benefits. Benefits were thereafter reinstated in 1977 when it was discovered that the surgery had caused the atrophy of the claimant's right
testicle together with the contraction of the right spermatic cord. The referee found that the cause of this condition was a result of the first surgery. A second operation was recommended by the employer's physician, which the claimant refused.
The employer subsequently filed a petition for modification based upon § 306(f) of the Pennsylvania Workmen's Compensation Act (hereinafter "Act").*fn1 The basis of the employer's petition was that the claimant's refusal of the proffered medical services constituted a forfeiture of all benefits under the Act. A hearing was held before a referee on June 22, 1978. At the hearing the only witness was the employer's physician. The petition for modification was eventually dismissed, the referee having determined that the claimant's refusal to undergo surgery was not unreasonable "considering the nature and extent of the operative procedure as well as the possible complications." Finding of Fact No. 13, Referee's Decision, July 14, 1982, p. 3.
On review the Board reversed the referee's decision, finding that the medical services offered were reasonable. As a consequence the referee was directed to enter an order effecting the forfeiture of the claimant's benefits.*fn2
On appeal the Commonwealth Court reversed. The court stated that the Board erred in finding the referee's determination of reasonableness was a question of law. It held that "[i]n reviewing the referee's decision, [the Board] needed only to determine whether or not the finding that the claimant's refusal to undergo a second operation was not unreasonable was based on substantial evidence." The court further concluded that "even if the claimant's refusal had been unreasonable, the employer would still have had the burden of proving that the refusal led to further injury or to an increase in the claimant's incapacity." Muse v. Page 4} Workmen's Compensation Appeal Board, 89 Pa. Commw. 171, 492 A.2d 102 (1985). From that decision the employer sought allowance of appeal, which was granted. We now reverse.
The employer presents a single issue for review: whether the claimant's refusal to undergo the surgery recommended by the employer's physician constituted a refusal of reasonable medical services pursuant to § 306(f) of the Workmen's Compensation Act. Section 306(f) of the Act reads in relevant part:
(4) In addition to the above service, the employer shall provide payment for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses. The cost for such hospital treatment, service and supplies shall not in any case exceed the prevailing charge in the hospital for like services to other individuals. 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 increase in his incapacity shown to have resulted from such refusal. Whenever an employe shall have suffered the loss of a limb, part of a limb, or an eye, the employer shall also provide payment for an artificial limb or eye or other prostheses of a type and kind recommended by the doctor attending such employe in connection with such injury and any replacements for an artificial limb or eye which the employe may require at any time thereafter, together with such continued medical care as may be prescribed by the doctor attending such employe in connection with such injury as well as such training as may be required in the proper use of such prostheses. The provisions of this section shall apply in injuries whether or not loss of earning power occurs. If hospital confinement is required, the employe shall be entitled to semi-private accommodations but if no such facilities are available, regardless of the patient's condition, the employer, not the
patient, shall be liable for the additional costs for the ...