*1 that, to hold given We are therefore constrained evidence, has met final Township’s lack Chambers prongs two Process Gas.
Accordingly, entry stay by we affirm the Commonwealth Court. affirmed.
Order ZAPPALA, J., participate did the consideration decision of this case.
PAPADAKOS, J., dissents. He would not accepted have of this matter. plenary jurisdiction
v. APPEAL WORKMEN’S COMPENSATION BOARD (WILLIAM FICHTORN), Appellees. P. Supreme Pennsylvania. Court of
Argued March 1988. May
Decided *2 Bashline, Pittsburgh, Bashline, & Baginski L.M. Terry appellant. Fichtorn. P. Price, for William Pittsburgh, E.
Leonard FLAHERTY, LARSEN, C.J., NIX, Before *3 STOUT, ZAPPALA, PAPADAKOS McDERMOTT, JJ.
OPINION NIX, Chief Justice. Fichtorn was P. 23, 1977, William appellee November
On Joyce appellant with employment in the course injured appellee, while occurred injury The Corporation. Western struck was vegetation, clearing pipeline a who was at the paid was Compensation a tree limb. eye with right 2, from December week per disability rate $199 total to on returned work 10, Appellee 1978. January to earnings. loss in date without the latter for Termi- filed a Petition 15, 1979, appellant May On Appeal Board Compensation with the Workmen’s nation below, filed referee (the “Board”).1 by Two decisions Board to the by remanded had been 1981 and for to be a Petition was later amended Termination The Petition for by the Board as finally the referee remanded to Suspension, and was 413(a) Pennsylvania See § Petition. Termination Remanded 2, 1915, P.L. June Act of Workmen’s "Act”). (the amended, (Supp.1987) 77 P.S. § Fichtorn, upon appeal referee Mr. instructions by with to specific findings make of fact and conclusions law. It is the third of the referee decision which forms basis of appeal. the instant stipulated
The that the sole parties issue before the referee “whether the has claimant sustained a eye.” loss of The following his referee issued the conclu- sion “Claimant lost the right of law: has use of his for thereto, all intents and practical purposes,” and pursuant ordered from receive his em- or its insurance ployer carrier loss of his referee eye.2 following findings The made the of fact the heart go which to of the controversy: evidence, your 7. After careful review the Referee finds while the claimant did an sustain to which, uncorrected, his right eye, has caused him to use of lose the said the claimant could eye, undergo surgery with a minimal risk of failure only which restore sight right would eye.
8. Your Referee finds that the claimant’s undergo has caused his own refusal by been cor- rective surgery.
9. Your Referee finds that claimant’s refusal surgery corrective is unreasonable under the
undergo However, your circumstances. Referee does not have undergo to order claimant to power surgery. pursuant reviewed the referee’s Board decision appeals Although recog- each the Board party. taken *4 findings quoted nized that do not support the fact above Order, the the Decision upheld referee’s it referee’s and competent Order on that sufficient evidence had theory the the hearing support finding been adduced at the referee’s issue. The Board further pertinent stipulated fact “super- fact in are findings question concluded that weeks, Appellee per period of 275 $199 was awarded week for a weeks, appropriate healing period, ten not to exceed addition to an 306(c)(7) See specific eye. loss 77 P.S. § of his 513(7), (25). §
195 on the referee’s bearing fluous and have no whatsoever specific a loss/’ awarding decision by appellant An to the Commonwealth appeal taken Court, the decision of the Board. The affirmed which stipulation found that eliminated Commonwealth Court surgery, corrective of the reasonableness the issue that claimant sus properly the Board determined and that right vision and use of his “compensable loss of tained a Compen Corporation v. Workmen’s eye.” Joyce Western (William Fichtorn), 103 Pa. Board P. Appeal sation 1107, 204, 210, (1987). Appellant 1110 519 A.2d Cmwlth.Ct. this appeal, requesting for allowance of petition filed loss benefits should be to consider whether Court aby sustained could be corrected awarded when surgical petition procedure. granted We reasonable and reverse. now compensable are recognized types
There three (the under the Workmen’s disability “Act”): total, partial, disability. loss Sections 306(a), (b), (c), (Supp.1987). 513 These P.S. §§ categories have enacted for distinct Total purposes. been awarded to partial disability employees benefits are who and, result, either are injuries sustain work-related as work, in earning power. Specif unable to or witness a benefits, however, regard either payable ic loss are without earning power, or to his employee’s capacity to work statutory criteria for these benefits have long as Hayes, v. Heintz Div. Kelsey been satisfied. Killian 200, 205, (1976). has Appellee alleged Pa. 360 A.2d eye, loss of an which covered that he sustained a 513(7) 306(c)(7), the Act: section permanent injuries For from disability resulting all classes, exclusively shall be following as follows:
(7) eye, sixty-six percen- an and two-thirds For the loss of weeks. wages during seventy-five tum hundred two 306(c)(7), 77 P.S. *5 196
The statute further provides that “permanent
loss of
the use of an
eye
...
...
shall be considered as the
equivalent of the
such ... eye.” (Emphasis added.)
306(c)(24),
77
513(24).
P.S.
Phillips v. Work
§
men’s Compensation
Board,
Appeal
6,
16 Pa.Cmwlth.Ct.
(1974). Thus,
The loss of use of a is permanent member not where surgery will function, restore some or all of its and thus a specific loss will not be found. See 1 Pa. Work. Barbieri, Comp. 5.21(21). Thus, question of correctibility of the injury is properly at issue in a See, loss case. Criner e.g., Co., v. McKee Glass Pa.Super. 627, 60 A.2d (1948). There is no dispute the instant appeal as to the fact that, state, its present appellee’s right virtually useless. The testimony opthalmologists appearing for each party bears out this Appellant conclusion. argues, however, appellee’s that since condition can be corrected by a reasonable surgical procedure, appellee has not sustained specific loss, since the injury permanent, thus, and appellant should not required be to compensate appellee pursuant loss provisions of the Act.3 Appellant required provide payment would be appellee for the surgical expenses medical and correcting incurred in restoring appellee's eyesight. 306(f)(1) See Section compensa- may receive whether a The issue of part when condi- body loss of a for the permanent tion *6 has never through surgery reasonable can remedied tion be However, our by this Court. addressed specifically been Ap- v. recent decision Muse Workmen’s in (1987) useful Board, 514 Pa. provides 522 A.2d peal in inquiry.4 our guidance Muse, sustained a work-related injury,
In
the claimant
The
therefrom.
claimant received
totally
was
disabled
and
306(a)
pursuant
section
disability benefits
appropriate
to correct
performed
511.
was
Surgery
the
71 P.S. §
receipt
executed a final
impairment and the claimant
terminating his benefits. Benefits were reinstated several
later,
that
caused
surgery
when it
discovered
years
was
physician
of another condition. The employer’s
the onset
re-
operation,
which the claimant
recommended
second
Thereafter,
for
employer
petition
filed a
modifi-
fused.
306(f)
the Act. That section
cation based on section
in
as follows:
provides
pertinent part
service,
In
(4)
employer
addition
the above
shall
medicines and
provide payment
supplies, hospital
for
treatment,
orthopedic
and
supplies
appli-
services and
ances,
hospital
The
for such
treat-
prostheses.
and
cost
ment,
in
and
shall not
case exceed
supplies
any
service
for
prevailing
hospital
like services
charge
shall
reason-
employe
other
individuals.
refuse
If
the heal-
duly
practitioners
able services
licensed
services,
arts,
hospital
medical and
treat-
ing
surgical,
ment,
all
supplies,
medicines and
he shall
rights
forfeit
any injury
any
increase in his
compensation for
such
shown to have resulted
incapacity
refusal.
from
531(4)
added).
306(f)(4), 77
(Emphasis
P.S.
Board,
Compensation Appeal
did
In Muse v. Workmen’s
the claimant
Instead,
allege
Muse sustained a work-related
loss.
Mr.
injury diagnosed
compensated
was
as a bilateral hernia and
on the
disability. Although
with a
basis
total
Muse
concerned
differ-
reasoning
helpful
analyzing
the issue as
ent section of the
its
procedure
would
re-
to the reasonableness
of the medical
be
quired
body.
of the affected member of the
to restore
function
Our decision Muse held that a claimant’s refusal of
reasonable medical services constitutes a forfeiture
dis-
ability
under
Act.
Muse v.
Com-
Workmen’s
pensation
Board,
Pa.
Appeal
at
can be done medical for reasonably arts the benefit of claimant, that he not be in his handicapped health or prospects gainful and fulfilling employment____ can cured drys Who be and won’t soon sympathy the most willing helpers. wearies ought any One not in context avoid reasonable medical in- procedures to cure firmities are a burden to life and the prospects life.
Id.,
199 for all intents and injured practical member of use of the permanent The loss of use of a member not purposes.” all of its restore some or procedures medical will where being whether claim- framing Thus the issue as function. his includes eye necessarily loss of ant sustained procedures medical will the issue as whether reasonable portion of the loss function. restore some Muse challenges applicability next Appellee Muse, In grounds. on em- appeal procedural instant disability to terminate the claimant’s ployer sought that the claimant refused reasonable medical theory on that would have corrected his and would treatment him return to work. The authori- statutory have enabled regard action in this was Section employer’s for the ty 531(4). 306(f)(4) 306(f)(4) dispute is no that Section There disability well as to cases. loss cases as applies provisions “The of this provides follows: subsection injuries earning whether or apply section shall 306(f)(4) 77 occurs.” P.S. power Hanyok v. Coal & Coke Pennsylvania See also (1944). Corporation, Pa.Super. A.2d How seeks to avoid the Muse ever, inquiry by asserting appellee treatment specifically that since he was not offered medical he did not “refuse reasonable services” employer, inapplicable section is this case. This and thus above *8 longer There no a argument statutory is devoid of merit. tender the services requirement actually that the employer provisions forfeiture of Section employee to before the Act, 531(f)(4), 306(f)(4) apply. 77 P.S. While appel § prior to the 1972 theory may lee’s tender have been valid Act, require the tender Amendments to the it is clear that viable, longer by ment it has eliminated is no as been legislature. Amendments, 306(f) of the
Prior the 1972 Section in read as follows: pertinent part services rendered employe If shall refuse reasonable arts, healing surgi- by practitioners licensed duly cal, treatment, services, medical and hospital medicines and supplies, tendered to him his employer, he shall rights any forfeit all compensation injury any increase in his incapacity shown to have resulted from refusal____ such The of this section provisions shall injuries where no loss of apply earning power occurs. added.) (Emphasis
1915, 2, Ill, 306(e); 1919, 26, P.L. 736 June art. June § 642, 1; 1927, 13, 186, 1; 1937, P.L. P.L. April 4, June § § 1552, 306(f) 1. 1939, P.L. Renumbered and amended § § 520, 21, 1; 1945, 18, P.L. May 671, June amended P.L. § 1; 14, 1369, May P.L. § § However, above, noted the 1972 Amendments to the Act eliminated the tender requirement previously contained 306(f). Section simply contemplates Section now an reasonable services. See refusal of employee’s 306(f)(4) Act, 531(4). 77 P.S. Reading this section conjunc- 306(f)(1) Act, tion 531(1), with Section it is clear that legislature maintaining employer’s obligation pay treatment, for reasonable medical while duty on the imposing employee to avail himself of these Thus, no having services. affirmative showing tendered medical services need made before employer be an may 306(f)(4) invoke provisions the forfeiture 77 P.S. § Alternatively, suggests appellee that forfeiture of bene- fits under this Section ordered in a may only be termination rather proceeding, than in an entitlement proceeding, which was conducted this This argument ignores case. essential distinction between case and a disability loss case. matter,
In a an disability employee sustains a work- related and compensation is awarded for that period Thereafter, he during which is unable to work. the employ er disability seek terminate on the may authority 306(a) 306(b) Sections 77 P.S. §§ specifically provide which shall paid be so A long disability proceed- as the continues. termination *9 commenced, on the basis ing perhaps will then be 531(4), simply on the 306(f)(4) of the P.S. or § In a longer is no disabled. ground employee that case, subsequent pro- there is no need for a specific loss specific loss qualifying determination that ceeding after a However, includ- legislature since the has been sustained. 306(f)(4) the context of Section loss cases within ed 531(4), is clear the issue of an 77 P.S. it that of the § be may refusal of reasonable medical services employee’s i.e., at the entitlement forum, appropriate considered at the Thus, hearing. appellee’s objections applicability to are Muse in this without merit. appeal Muse in the loss reasoning persuasive The as cases. If an can be disability context well treatment, it is reasonable medical axiomatic corrected with injured body part permanently of the is not that use A who declines to avail himself reasonable lost. surgical procedures medical ameliorate condition not same to collect permitted should at the time be benefits permanent designed permit loss. The Act was not cure.5 compensation to elect between employees The in this case a cataract extrac- suggested surgery Superior a 1940 case tion. observations Court pertinent: are dealing with similar issues substantially (77 306(c) of the PS By Workmen’s § 513), loss of is due for the an special loss of the use provided “permanent and it further arm, foot, hand, of a ... shall be considered as leg, eye, such can it equivalent of the loss” of member. How if use permanent said the loss is can be be leg restored If one had a or arm operation? an broken one not being, it would useless for the time but would be permanent that such was a loss say parlance common ne- injured person while the refused or member 531(1), required pay employer be Pursuant would expenses. surgery medical/surgical If the employee’s for the does member, injured employee would be well restore use of the rights at that within his under the Act to seek juncture. *10 glected to avail himself of surgical treatment if such treatment the would restore use of the member. While a the removal of requires cataract more skill and the patient incur would more risk than in the of a setting bone, it is a of matter common that knowledge cataracts are removed regularly with a minimum danger. of v. 153, 157, 140 Pa.Super. Reigle Sholly, 14 A.2d 167 (1940). case, in however,
In record the instant the Board-certi- fied ophthalmologist, Dr. Yockey, testified that claimant’s vision could be restored if he a cornea implant, underwent that there some but was risk all if losing sight eye that such a If procedure undertaken. the referee on re- accepts mand this it testimony, well a may justify finding proposed that medical procedures would be unreason- may able. One quite properly determine that even substan- tially impaired preferable vision one is the possibil- ity complete loss the use of that member.
The issue of what constitutes “reasonable” surgery
course,
particular
will,
in a
case
constitute a factual
will
a
inquiry
by
which
be conducted
referee.
If the evi
dence establishes that
the recommended surgery involves
minimal
risk to the
patient
and offers a high probability
success,
reasonable,6
the proposed surgery is
and are
upon
denied
claimant’s
properly
rejection
of the specified procedure. See
v.
Muse Workmen’s Com
Board,
pensation Appeal
Pa.
522
514
at
A.2d at 536.7
Factors which the
may
claimant
adduce to rebut the conclu
sion
treatment
the following:
reasonable
include
suffering,
inconvenience, etc.,
extent of the pain,
[T]he
operation in
entailed
connection with the benefit
self-evident, however,
procedures
generally
It
is
that
which are
threatening
per
viewed
life
se
are
unreasonable.
Muse,
requires
employer
7. As
noted
demonstrate
before the referee that the recommended medical
treatment
reason-
presentation,
may
able. At the
conclusion
this
either
case,
theory
employer
rest
on
his
has failed to meet his
burden,
may
he
adduce evidence to rebut the
reasonableness of
Muse,
proposed
particular
supra,
treatment
case.
at
Pa.
LARSEN, J., dissenting opinion files PAPADAKOS, J., joins. *11 Justice,
LARSEN, dissenting. the Commonwealth opinion I on the basis dissent (1987) (per 204, 519 A.2d Court, 103 Pa.Cmwlth.Ct Colins, J.). Crumlish, As that court S.J.; P.J. and Barbieri, Ap- stated, agree “we with [Workmen’s a properly before us do have Board we peal] of reasonable under issue refusal presented services] [of at 103 Pa.Cmwlth.Ct. 306(f)....” the parties stipulation A.2d at 1109. The of that issue. our consideration precludes PAPADAKOS, dissenting opinion. J., this joins
v. EICHELBERGER, Petitioner. Robert Scott Pennsylvania. Supreme Court 13, 1988. June