Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

HENRY CREWS v. WORKMEN'S COMPENSATION APPEAL BOARD (B & W TUBULAR PRODUCTS GROUP) (02/24/89)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 24, 1989.

HENRY CREWS, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (B & W TUBULAR PRODUCTS GROUP), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Henry Crews v. B & W Tubular Products Group, No. A-92986.

COUNSEL

Joseph E. Fieschko, Jr., for petitioner.

James R. Schmitt, Will, Keisling, Ganassi & McCloskey, for respondent.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.

Author: Smith

[ 123 Pa. Commw. Page 610]

Henry Crews (Claimant) appeals from a decision of the Workmen's Compensation Appeal Board (Board) affirming the referee's decision to grant the suspension

[ 123 Pa. Commw. Page 611]

    petition filed by Babcock & Wilcox Tubular Products Group (Employer). The Board is affirmed.

Claimant contends on appeal that his decision to continue with physical therapy at the YMCA as prescribed by his physician, Dr. Cozza, rather than at the PROS-Keystone Rehabilitation Program facility (Keystone) as recommended by Employer's physician, Dr. Tetalman, does not constitute a refusal of reasonable medical treatment under Section 306(f) of The Pennsylvania Workmen's Compensation Act (Act).*fn1

On July 15, 1984, Claimant sustained a work-related injury to the right lower back. A notice of compensation payable was filed on July 16, 1984 and Claimant began receiving $320.00 per week compensation. Claimant initially sought treatment from the plant physician, then visited a chiropractor and later a neurosurgeon who recommended that Claimant visit Dr. Cozza. Dr. Cozza diagnosed Claimant as suffering from piroformis of the right muscle in his lower back and prescribed an exercise plan. Pursuant to Dr. Cozza's instructions, Claimant began undergoing physical therapy at the YMCA in New Castle.

On January 27, 1986, Employer filed a petition for termination, modification or suspension of benefits alleging that Claimant had refused treatment at Keystone. On January 12, 1987, the referee entered an order granting Employer's suspension petition effective November 27, 1985, the date Claimant refused to be treated at Keystone. The Board affirmed. Claimant thereafter petitioned this Court for review.*fn2

[ 123 Pa. Commw. Page 612]

Claimant argues that his decision to continue the treatment prescribed by Dr. Cozza did not constitute a refusal of reasonable medical treatment and that the referee's finding to the contrary is not supported by substantial evidence. Section 306(f) of the Act requires that if an employee should refuse reasonable medical services offered by Employer, the employee shall forfeit all rights to compensation. In support of his position, Claimant posits that he was satisfied with the treatment that he received from Dr. Cozza and decided not to participate in the therapy program at Keystone. Claimant maintains that the referee's decision also fails to consider that Claimant would have to travel forty-six miles round-trip to Keystone.

The record discloses that Claimant was undergoing therapy on a regular basis at the YMCA in New Castle under the guidance of John Kline. Dr. Cozza testified that Claimant had experienced some improvement but on cross-examination was unable to testify as to the extent of Claimant's improvement or the qualifications of the therapy trainer, and furthermore had never personally observed Claimant participate in the program. More importantly, Dr. Cozza was unable to testify as to when Claimant would be cured of his injuries. Deposition of Dr. Cozza, pp. 10-11, 16. Dr. Tetalman testified that if Claimant were to attend the Keystone program, where he would receive personal supervision of a physical therapist and an exercise physiologist, his condition would be totally resolved within four to six weeks. Deposition of Dr. Tetalman, pp. 10-13; Findings of Fact Nos. 1, 4. Claimant's contention that requiring him to drive forty-six miles round-trip in order to attend physical therapy at Keystone would offset any of the benefits received from the therapy is without merit. Dr. Cozza's office is thirty miles from Claimant's home or sixty-miles round-trip

[ 123 Pa. Commw. Page 613]

    which Claimant has traveled for several years. Therefore, it is not unreasonable to expect Claimant to participate in therapy at Keystone. Clearly, there was sufficient evidence to support the referee's finding.

[ 123 Pa. Commw. Page 614]

Claimant also argues that the referee erred in failing to consider the reasonableness of the therapy offered at the YMCA and that his situation is not similar to the situation in Muse v. Workmen's Compensation Appeal Board (Western Electric Company), 514 Pa. 1, 522 A.2d 533 (1987), where the Pennsylvania Supreme Court held that the focus of the statute is on the reasonableness of service offered. In Muse, the claimant refused to undergo a second surgical procedure even though there was minimal risk involved and the procedure offered a high degree of success. Benefits were suspended for claimant's refusal to undergo the surgery. Likewise, the issue here is whether the medical services offered by Employer are reasonable. Claimant also cites Marcks v. Workmen's Compensation Appeal Board (City of Allentown), 65 Pa. Commonwealth Ct. 107, 442 A.2d 9 (1982) to support his position. However, Marcks is inapposite from the instant case. In Marcks, this Court determined that the referee had failed to make necessary findings regarding medical evidence that were crucial to resolution of the case. The record here discloses that the referee made all necessary findings pertaining to the different treatments prescribed by the medical witnesses.*fn3 It must be noted that questions of credibility and the choice between conflicting testimony is for the referee and not this Court. American Refrigerator Equipment Co. v. Workmen's Compensation Page 614} Appeal Board (Jakel), 31 Pa. Commonwealth Ct. 590, 377 A.2d 1007 (1977).

Finally, Claimant argues that the referee erred in suspending the Claimant's benefits when the Employer merely sought an order directing that Claimant undergo treatment at Keystone. The record demonstrates that Employer filed a petition to suspend benefits, and Section 306(f) of the Act specifically permits suspension of benefits if a claimant should refuse to undergo reasonable medical treatment. The referee thus did not err in suspending benefits.

Accordingly, the decision of the Board is affirmed.

Order

And Now, this 24th day of February, 1989, the decision of Workmen's Compensation Appeal Board is affirmed.

Judge MacPhail did not participate in the decision in this case.

Disposition

Affirmed.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.