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CLARENCE W. DONTON v. WORKMEN'S COMPENSATION APPEAL BOARD (PRESTOLITE BATTERY) (04/21/89)

decided: April 21, 1989.

CLARENCE W. DONTON, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PRESTOLITE BATTERY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Clarence W. Donton, Jr., v. Prestolite Battery, No. A-93980.

COUNSEL

Ronald R. Pellish, Pellish & Pellish, for petitioner.

Stephen P. Ellwood, for respondent.

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

Author: Blatt

[ 125 Pa. Commw. Page 325]

Clarence W. Donton, Jr. (claimant) appeals here from an order of the Workmen's Compensation Appeal Board (Board) which affirmed the referee's decision suspending the compensation of the claimant as of May 21, 1987.

The claimant sustained a work-related injury on July 19, 1985. He had been receiving compensation at the rate of $336.00 per week pursuant to a Notice of Compensation Payable issued August 21, 1985. In late 1985 and early 1986, the claimant was examined by Dr. Michael Dawson (claimant's doctor) and Dr. Ellis Friedman (employer's doctor). Both doctors diagnosed the claimant's injury as a herniated lumbar disc. Both doctors also recommended surgery as the appropriate means for treating the claimant's injury. The claimant refused to allow either of the recommended procedures to be performed on his back because the doctors would not guarantee that the surgery would be successful.

Prestolite Battery (employer) filed a Petition for Review on February 21, 1986, and an Amended Petition for Review on April 7, 1986. On June 23, 1987, the referee issued a decision and order suspending the claimant's compensation. Based upon the testimony of both the claimant's doctor and the employer's doctor, and considering that the claimant would accept no surgery unless positive results were guaranteed, the referee found that the claimant refused reasonable services and had, therefore, forfeited his rights to further compensation under Section 306(f) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 531(4).*fn1

[ 125 Pa. Commw. Page 326]

The claimant appealed the referee's decision to the Board. The Board, citing Muse v. Workmen's Compensation Appeal Board, 514 Pa. 1, 522 A.2d 533 (1987), affirmed the referee's decision. It is from this order of the Board that the claimant appeals.

The issue before this Court is whether the Board erred in affirming the referee's determination that the services the claimant refused were reasonable. Where, as here, the party with the burden of proof has prevailed and the Board has taken no additional evidence our scope of review is limited to a determination of whether constitutional rights have been violated, errors of law committed, or findings of fact have not been supported by substantial evidence. North Penn Transfer, Inc. v. Workmen's Compensation Appeal Board, 61 Pa. Commonwealth Ct. 469, 434 A.2d 228 (1981).

In its opinion affirming the referee, the Board cites Muse as authority for the analysis used in a Section 306(f), refusal of reasonable services case. We are in agreement with the Board. In the instant case, the focus is upon the services available to the claimant and the reasonableness thereof. Muse, 514 Pa. at 7, 522 A.2d at 536. ...


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