Summary
missing transcript of expert medical testimony
Summary of this case from Kistler v. W.C.A.B. et alOpinion
Argued September 12, 1973
November 9, 1973.
Workmen's compensation — Remand — Essential evidence — Missing testimony — Record — Refusal of medical services — Aggravation — Findings of fact.
1. It is appropriate for the Commonwealth Court of Pennsylvania to remand a workmen's compensation case to the Workmen's Compensation Appeal Board for further proceedings where evidence essential to the determination of an issue is missing from the record. [100]
2. In determining whether a refusal of medical treatment by an employe justifies denial or modification of workmen's compensation benefits, it is necessary to establish whether such refusal aggravated the employe's injuries, and where such issue is raised, the findings of the Workmen's Compensation Appeal Board should include a specific finding relating to that question. [100]
Argued September 12, 1973, before Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 27 C.D. 1973, from the Order of the Workmen's Compensation Appeal Board in case of Peter J. Matje v. City of Philadelphia, Police Department, No. A-64691.
Application to Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Benefits denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Remanded.
Daniel J. McAleer, with him Stanley Bashman, Charles C. Hansford and Thomas F. McDevitt, for appellant.
James J. Kerwick, with him Howard D. Scher and Benjamin Cherry, for appellees.
This is an appeal from an Order of the Workmen's Compensation Appeal Board (Board) which denied benefits to a partially disabled Philadelphia policeman (Claimant). We are unable to resolve the question of the reasonableness of Claimant's refusal to undergo recommended medical treatment and of the availability of compatible secondary employment under Philadelphia's Rule 32 program which are at issue in this appeal, and must remand because a portion of the testimony, of the City's medical witness, Doctor Raymond Stein, was apparently misplaced by the Board. This testimony is critical to a determination of whether or not medical services in fact were tendered to Claimant by the City, and any attempt at review by this Court, without this testimony, would be meaningless. Del Penn Steel Corp. v. Abrams, 8 Pa. Commw. 226, 302 A.2d 875 (1973).
Moreover, we suggest that the Board specify in its Findings of Fact the extent to which Claimant's refusal of surgery aggravated his injury if indeed it finds that such surgery was offered by the City and Claimant was unreasonable in his refusal to accept surgery. See Patterson v. Lenart, 9 Pa. Commw. 116, 305 A.2d 778 (1973).
ORDER
AND NOW, this 9th day of November, 1973, the Order of the Workmen's Compensation Appeal Board, dated December 7, 1972, is vacated and the record is remanded for further proceedings consistent with this opinion.