57 Pa. Commw. 274 | Pa. Commw. Ct. | 1981
Opinion by
Mrs. Smith Pie Company and its insurer, Centennial Insurance Company
On February 23, 1973, Melvin L. Wise was injured in the course of his employment with Mrs. Smith when oven cleaning acid splashed in his eyes, resulting in the complete loss of vision in Wise’s right eye. On March 14, 1974, Wise filed a claim petition for benefits for the permanent loss of his right eye pursuant to Section 306(c) of The Pennsyl
Mrs. Smith did not offer any testimony or adduce any evidence at either the September 13, 1974, or the April 14, 1975, hearing. However, on August 14, 1975,
Mrs. Smith took no action on Dr. Schlezinger’s report until the March 8, 1976, hearing, when it asked Beferee Cassidy for a further continuance so that it might take and offer Dr. Schlezinger’s deposition for the record and in addition petition the Board for an order that Wise be hospitalized for further testing and treatment. Beferee Cassidy refused the continuance on the ground that Mrs. Smith had had sufficient time in which to depose Dr. Schlezinger and to
On May 25, 1976, more than nine months after Dr. Sehlezinger had examined Wise and more than two months after Referee Cassidy had closed the record, Mrs. Smith filed a petition with the Board seeking an order directing Wise to submit to hospitalization for testing and treatment. The Board first granted the prayer of the petition but then vacated that order on Wise’s objection. The Board then referred the petition to Referee Carl M. Lorine for a hearing, which was held on March 10, 1977. Dr. Sehlezinger testified at this hearing that he wanted to hospitalize Wise for ten days to two weeks in order to perform certain tests, including the intravenous administration of a narco-hypnotic drug called tincture valerian, which Dr. Sehlezinger described as ‘ ‘ the most horrible, putrid stuff you ever saw.” Dr. Sehlezinger stated that the purpose of this drug is to make the patient suffer, thereby diminishing his repressed feelings of anger and aggression. Dr. Sehlezinger also testified that the drug had been removed from hospital use because it is so acrid. Finally, Dr. Sehlezinger stated that his treatment of Wise might or might not effect a cure of his blindness. Referee Lorine issued an opinion and order dated January 11, 1978, denying the prayer of Mrs. Smith’s petition. The Board, in an opinion and order dated January 4, 1980, affirmed Referee Lorine’s determination.
Mrs. Smith first contends that the Board’s affirmance of Referee Cassidy’s award of benefits was erroneous because, as a matter of law, the loss of the use of an eye due to purely psychological condition
Mrs. Smith next contends that Referee Lorine and the Board erred in denying the prayer of Mrs. Smith’s petition for hospitalization of Wise. Mrs. Smith correctly states that Section 314 of the Act, 77 P.S. §651, gives a claimant’s employer the right to conduct one medical examination of a claimant, which in this case was done by Dr. Schlezinger on August 14, 1975. However, in the absence of a claimant’s consent, subsequent examinations of a claimant may be obtained only upon petition to the Board, which may order the employee to submit to such further examinations which the Board deems reasonable and necessary. Id. Mrs. Smith says that its request for the hospitalization of Wise was reasonable and necessary.
The decision to order further examination of a claimant “ ‘is a matter for the sound discretion of the compensation authorities, and nothing less than a manifest abuse of that discretion will justify the interference of the court.’ ” ' Grande v. Workmen’s
Finally, Mrs. Smith contends that it was denied due process by Referee Cassidy’s refusal to grant a continuance on March 8, 1976; by Referee Cassidy’s issuance of an order awarding benefits to Wise prior to the disposition of Mrs. Smith’s petition for hospitalization; and by the Board’s refusal to remand the matter to Referee Cassidy for the introduction of Dr. Schlezinger’s testimony when the Board denied the prayer of Mrs. Smith’s petition for hospitalization.
We do not believe that either Referee Cassidy’s refusal to grant Mrs. Smith a continuance for the taking of Dr. Schlezinger’s deposition or the Board’s refusal to remand the matter for the introduction of Dr. Schlezinger’s testimony constituted a denial of due process. Due process requires, inter alia, that a party have the opportunity to present its case. Seven months elapsed from the time Dr. Schlezinger examined Wise until the March 8,1976, hearing before Referee Cassidy. Mrs. Smith therefore had ample opportunity to depose Dr. Schlezinger prior to the March 8, 1976, hearing at which it could have offered the doctor’s deposition. Balancing Mrs. Smith’s desire to present Dr. Schlezinger’s testimony against
Similarly, neither Referee Cassidy’s refusal to grant Mrs. Smith a continuance so that Mrs. Smith could petition the Board for the hospitalization of Wise nor Referee Cassidy’s issuance of his order awarding Wise benefits prior to the disposition of Mrs. Smith’s petition denied Mrs. Smith due process. Again, Mrs. Smith was aware for seven months prior to March 8, 1976, that further examination of Wise in a hospital would be necessary.
We also note that the Board disposed of Mrs. Smith’s appeal from Referee Lorine’s decision denying the prayer of the petition for hospitalization before it decided Mrs. Smith’s appeal from Referee Cassidy’s decision awarding benefits. If the Board reversed Referee Lorine’s decision and granted the prayer of Mrs. Smith’s petition for hospitalization, it undoubtedly would have vacated Referee Cassidy’s award of benefits and remanded the matter back to Referee Cassidy for the receipt of Dr. Schlezinger’s testimony and the results of his hospital testing of Wise. Instead, the Board affirmed Referee Lorine’s denial of the prayer of Mrs. Smith’s petition and we have held that this action was not an abuse of discretion. Hence, even if Referee Cassidy’s refusal to grant a continuance and his issuance of an order prior to the disposition of the prayer of Mrs. Smith’s petition for hospitalization was error, it was harmless.
Orders affirmed; an appropriate judgment order will be entered.
Order
And Now, this 4th day of March, 1981, the orders of the Workmen’s Compensation Appeal Board dated
Centennial Insurance Company is a member of the Atlantic Companies.
Some of the dates and characterizations of the proceedings contained in Mrs. Smith’s brief do not correspond to the record.