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decided: May 26, 1988.


Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of John J. Banicki v. Mackintosh-Hemphill, Div., G. & M. Manufacturing Co., No. A-90227.


David Max Baer, Campbell, Sherrard & Burke, P.C., for appellant.

J. Scott Leckie, Yablonski, Costello & Leckie, for appellee.

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

Author: Palladino

[ 116 Pa. Commw. Page 402]

Mackintosh-Hemphill Division of G. & W. Manufacturing Company (Employer) appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's decision to reinstate benefits to John J. Banicki (Claimant). For the reasons set forth below, we affirm.

Claimant was employed by Employer as a molder's helper. On October 16, 1981, Claimant suffered a work injury when he fell into a pit and sustained a concussion. Claimant returned to light duty work after the accident and eventually returned to his regular job on April 26, 1982.*fn1 Claimant remained at this job until

[ 116 Pa. Commw. Page 403]

December 10, 1982 when he was laid off for economic reasons.

As a result of Claimant's injury, Claimant came under the care of Dr. Thomas Dugan, a neurologist. Dr. Dugan subsequently referred Claimant to Dr. James Huha, a clinical psychologist. Dr. Huha diagnosed Claimant as suffering from a post-traumatic head injury with accompanying depression and anxiety and recommended to Employer that Claimant undergo psychotherapy. Employer then authorized six (6) months of psychotherapy and agreed to pay for these treatments. Claimant commenced psychotherapy on May 3, 1982 and continued with treatment until October 25, 1982.*fn2

On November 3, 1982, Dr. Huha performed a neuropsychological re-evaluation and recommended continued therapy. Dr. Huha sent a written report, dated November 29, 1982, to Employer regarding the results of the re-evaluation and recommendation for continued therapy. After Dr. Huha performed the re-evaluation, Claimant went to one therapy session on December 27, 1982 and advised Dr. Huha that he could not continue treatment while he was unemployed because he could not afford the travel expense to Dr. Huha's office.*fn3 Claimant requested that Dr. Huha recommend a psychotherapist closer to Claimant's home. Claimant did

[ 116 Pa. Commw. Page 404]

    not return to Dr. Huha and did not see a psychotherapist again until March 8, 1983, at which time he consulted Dr. Nissim Benado, a psychiatrist.*fn4

Employer requested Claimant to return to work in June of 1983, but Claimant did not do so. On June 13, 1983, Claimant filed a petition to reinstate benefits, alleging that he had become totally disabled as of March 8, 1983. Employer contested Claimant's petition and asserted that Claimant was not entitled to benefits because Claimant had refused medical treatment.*fn5

After several hearings, the referee determined that Claimant's disability was not the result of his refusal to submit to treatment by a duly licensed practitioner of the healing arts. The referee concluded that treatment was not available to Claimant for reasons beyond Claimant's control. Without taking additional evidence, the Board affirmed the decision of the referee.

On appeal to this court, Employer argues that the referee erred in concluding that Claimant's disability was not caused by a refusal to submit to treatment. Employer argues that the referee should have distinguished between Claimant's ability to attend therapy sessions with Dr. Huha and Claimant's ability to organize

[ 116 Pa. Commw. Page 405]

    a search for a new doctor. Employer further contends that the referee should have distinguished between Claimant's failure to attend therapy from November 3, 1982 to December 10, 1982 (before Claimant was laid off) and Claimant's failure to attend therapy after December 10, 1982.*fn6

Our scope of review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or whether necessary findings of fact are supported by substantial evidence. Bailey v. Workmen's Compensation Appeal Board (Lawton Feed & Supply, Inc.), 105 Pa. Commonwealth Ct. 106, 523 A.2d 415 (1987).

Section 306(f) of The Pennsylvania Workmen's Compensation Act*fn7 provides that "if the employee shall refuse reasonable services of duly licensed practitioners of the healing arts, surgical, medical and hospital services, treatment . . . he shall forfeit all rights to compensation for any injury or increase in his incapacity shown to have resulted from such refusal." An employer who seeks a forfeiture of benefits pursuant to Section 306(f) bears the burden of establishing that the employee is no longer entitled to benefits. Byrd v. Workmen's Compensation Appeal Board (Temco Services Industries), 81 Pa. Commonwealth Ct. 325, 473 A.2d 723 (1984).

In this case, Employer presented the deposition testimony of Dr. Huha who indicated that Claimant had cancelled an appointment scheduled for December 14, 1982 and that he [Dr. Huha] had warned Claimant of

[ 116 Pa. Commw. Page 406]

    the consequences of discontinuing therapy.*fn8 Dr. Huha also testified that he urged Claimant to continue treatment and advised Claimant to consult a doctor closer to home if he could not return to Dr. Huha's office for treatment.*fn9 Finally, Dr. Huha testified that no one ever told him that he could not continue to treat Claimant.*fn10 Employer also presented the testimony of Mr. David Kapsha, Employer's Industrial Relations Manager, who indicated that Employer would pay for continued treatment (after the November 3, 1982 reevaluation) and that this information was communicated to Claimant.*fn11

Claimant testified that the reasons he discontinued therapy were his financial difficulties, his wife's illness, and his inability to become organized as a result of his depression.*fn12 Claimant also presented the testimony of his wife, Shirley Banicki, who stated that she attempted to find a new therapist for Claimant, but was delayed in

[ 116 Pa. Commw. Page 407]

    doing so because of her own illness.*fn13 Claimant's wife also indicated that Claimant was suffering organizational and memory problems which prevented him from locating a new doctor.*fn14

Based upon the above testimony, the referee in this case found that the record was devoid of unequivocal evidence or testimony to establish when Employer authorized additional psychotherapy. Finding of Fact No. 23. The referee further found that there was no indication in the record that Claimant was advised by Dr. Huha to receive therapy between November 3, 1982 and December 10, 1982. Finding of Fact No. 24.*fn15 The referee determined that although Claimant requested Dr. Huha and Mr. Kapsha to refer him to a psychiatrist closer to home and that Dr. Huha and Mr. Kapsha were in a better position than Claimant to arrange for alternative treatment by another psychiatrist, no action was taken on Claimant's request. Findings of Fact Nos. 30-31. Finally, the referee noted that since March 8, 1983, Claimant has been treated by Dr. Benado and has adhered faithfully to the regimen of treatment prescribed. Finding of Fact No. 30(h).

The referee determined that a distinction should be drawn between an injured employee's refusal to submit

[ 116 Pa. Commw. Page 408]

    to treatment and an inability to submit to treatment. Finding of Fact No. 29. Concluding that Claimant had not refused medical services but was unable to submit to treatment for reasons beyond his control, the referee determined that Claimant suffered a recurrence of his work injury as of March 8, 1983 and was therefore entitled to benefits.

Employer contends that the facts of this case are analogous to those presented in Byrd. We disagree. In Byrd, this court determined that an employee had forfeited his entitlement to benefits because he effectively refused medical treatment when he cancelled eight of twelve physical therapy appointments. The employer's insurance carrier in Byrd had specifically authorized these appointments.

In the case at bar, the referee determined that Employer had not presented unequivocal evidence to establish that it authorized continued treatment. We note that questions of credibility and evidentiary weight are to be resolved by the referee as fact-finder. Smith v. Workmen's Compensation Appeal Board (Westinghouse Electric Corp.), 90 Pa. Commonwealth Ct. 246, 494 A.2d 877 (1985). Further, in performing his role as fact-finder, the referee is free to accept or reject the testimony of any witness, in whole or in part. Stratton v. Workmen's Compensation Appeal Board (Babcock & Wilcox), 93 Pa. Commonwealth Ct. 454, 501 A.2d 709 (1985). Further, unlike the employee in Byrd, Claimant attempted to, and ultimately did, locate another psychiatrist.

[ 116 Pa. Commw. Page 409]

Based upon the findings of fact made by the referee, which are supported by substantial evidence, we cannot conclude that the actions of Claimant were so unreasonable as to constitute a refusal to submit to treatment by a duly licensed practitioner of the healing arts. See St. Joe Minerals Corp. v. Workmen's Compensation Appeal Page 409} Board (Margetic), 73 Pa. Commonwealth Ct. 189, 458 A.2d 295 (1983); Patterson v. Lenart, 9 Pa. Commonwealth Ct. 116, 305 A.2d 778 (1973).

Accordingly, we affirm.


And Now, May 26, 1988, the order of the Workmen's Compensation Appeal Board in the above-captioned matter is affirmed.



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