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JAMES SKURKEY v. WORKMEN'S COMPENSATION APPEAL BOARD (FOSTER-WHEELER CORP.) (10/05/87)

decided: October 5, 1987.

JAMES SKURKEY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (FOSTER-WHEELER CORP.), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in case of James Skurkey v. Foster-Wheeler Corp., No. A-86574.

COUNSEL

Bart E. Ecker, Laputka, Bayless, Ecker & Cohn, P.C., for petitioner.

Hugh F. Mundy, with him, Marianne C. Smith, Dougherty, Mundy & Leventhal, for respondent, Foster- Wheeler Corp.

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

Author: Blatt

[ 110 Pa. Commw. Page 82]

James Skurkey (petitioner) petitions for review of an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision granting benefits for the periods from April 9 to May 9, 1980 and from October 10 to November 26, 1980.

The petitioner has had a long history of both work and non-work-related injuries. He is, however, now challenging only the referee's and the Board's conclusion

[ 110 Pa. Commw. Page 83]

    concerning the time from October 10, 1980 to November 26, 1980. Accordingly, we will limit our recitation of the facts to those relevant to that benefit period.

The petitioner, while working for the Foster-Wheeler Corporation (employer) suffered a work-related ankle injury, from which he was temporarily totally disabled as of October 10, 1980. One of his treating physicians, Dr. Gunderson, thereafter released him to return to work on November 26, 1980. The petitioner, however, contends that, when he attempted to return to work, the employer's physician, Dr. Smith, would not let him work because of the possibility of continuing ankle problems. He did not, in fact, return to work until April 5, 1983. The referee, however, concluded that all disability had ceased as of November 26, 1980, and granted benefits for the period from October 10, 1980 to November 26, 1980. The Board affirmed and this appeal followed.

In this unique workmen's compensation case, the petitioner is not challenging the referee's finding that all disability had ceased as of November 26, 1980. Rather, he contends that, where the employer's physician refused to allow him to return to work because of a continuing disability, the Board erred in denying benefits on the basis that he should have returned on the date his treating physician said he was able to do so.*fn1

Preliminarily, we note that a company physician is, under certain circumstances, an agent of the employer, so that the employer is bound by the actions of its physician. Reed v. ...


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