Mrs. Smith Pie Co. v. Commonwealth

426 A.2d 209, 57 Pa. Commw. 274, 1981 Pa. Commw. LEXIS 1201
CourtCommonwealth Court of Pennsylvania
DecidedMarch 4, 1981
DocketAppeals, Nos. 589 and 590 C.D. 1980
StatusPublished
Cited by14 cases

This text of 426 A.2d 209 (Mrs. Smith Pie Co. v. Commonwealth) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mrs. Smith Pie Co. v. Commonwealth, 426 A.2d 209, 57 Pa. Commw. 274, 1981 Pa. Commw. LEXIS 1201 (Pa. Ct. App. 1981).

Opinion

Opinion by

Judge Rogers,

Mrs. Smith Pie Company and its insurer, Centennial Insurance Company1 (Mrs. Smith), have appealed from two orders of the Workmen’s Compensation Appeal Board (Board). The appeals have been consolidated for briefing, argument and disposition. We affirm.

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[276]*276vania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §513 (Act). A hearing was held on September 13, 1974, before Beferee Clement J.. Cassidy, at which Wise testified. Beferee Cassidy continued the hearing until April 14, 1975, when Wise introduced the deposition of Dr. Aaron W. Mallin, a Board certified psychiatrist and neurologist. Dr. Mallin’s unequivocal testimony was that there is no physiological basis for Wise’s condition but that the blindness in his right eye is a product of a psychological hysterical conversion directly related to the accident on February 23, 1973. Dr. Mallin also testified that Wise’s blindness is permanent. Beferee Cassidy again continued the hearings until March 8,1976.

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, 1975,2 Wise was examined at the request of Mrs. Smith by Dr. Nathan Schlezinger. Based on this examination, Dr. Schlezinger agreed with Dr. Mallin that Wise’s blindness was psychological; however, Dr. Schlezinger concluded that further tests conducted in a hospital would be necessary in order to ascertain whether or not Wise’s blindness was permanent.

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 [277]*277petition, the Board. Referee Cassidy then closed the record and on February 16, 1978, issued an opinion with an order awarding benefits to Wise for the permanent loss of his right eye. The Board, without taking additional evidence, affirmed the award by order dated January 7,1980.

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 [278]*278cannot be considered a permanent loss which would entitle a claimant to permanent loss benefits under Section 306(c) of the Act. We do not agree. A work-related nervous disability or mental illness is a compensable injury within the meaning of the Act. De-Baldo Bros., Inc. v. Workmen’s Compensation Appeal Board, 49 Pa. Commonwealth Ct. 632, 411 A.2d 1277 (1980); University of Pittsburgh v. Workmen’s Compensation Appeal Board, 49 Pa. Commonwealth Ct. 347, 405 A.2d 1048 (1979). Thus blindness caused by hysterical conversion occasioned by a work-related accident is a compensable injury. Moreover, Referee Cassidy’s finding that Wise’s blindness is permanent is amply supported by the unequivocal and uncontradicted testimony of Dr. Mallin that, given Wise’s intellectual and psychological make-up, there is no hope of recovery.

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 [279]*279Compensation Appeal Board, 43 Pa. Commonwealth Ct. 314, 315-16, 402 A.2d 315, 316 (1976) (quoting Harrisburg Railways Co. v. Workmen’s Compensation Appeal Board, 17 Pa. Commonwealth Ct. 485, 487-88, 333 A.2d 221, 222-223 (1975)). In the instant case, Mrs. Smith wished to subject Wise to extended hospitalization and to the administration of a “horrible [and] putrid” drug, which has been removed from use in hospitals and which would be of doubtful benefit to Wise. We do not believe that the refusal to allow these procedures was a manifest abuse of discretion.

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.

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Cite This Page — Counsel Stack

Bluebook (online)
426 A.2d 209, 57 Pa. Commw. 274, 1981 Pa. Commw. LEXIS 1201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mrs-smith-pie-co-v-commonwealth-pacommwct-1981.