
    Workmen’s Compensation Appeal Board of the Commonwealth of Pennsylvania and Rose L. Norman, Widow of Peter Norman v. A. R. Bar, Inc. and Westmoreland Casualty Company, Insurance Carrier, Appellants..
    
      Argued December 4, 1975,
    before Judges Kramer, Wilkinson, Jr. and Rogers, sitting as a panel of three.
    
      Earl T. Britt, with him Duane, Morris & Heckscher, for appellants.
    
      Sylvan D. Einhom, with him Winer and Einhorn, P.C., and James N. Diefenderfer, for appellees.
    
      January 12, 1976:
   Opinion by

Judge Rogers,

A. R. Bar, Inc., an employer, and its insurance carrier have appealed from an order of the Workmen’s Compensation Appeal Board affirming a referee’s decision granting benefits to the widow of Peter Norman.

Mr. Norman was employed as a janitor at A. R. Bar, Inc.’s bar and night club at a salary of $50 per week. On April 14, 1969, a case of beer fell and injured his right foot. Mr. Norman consulted Dr. Jacob Levin on April 24, 1969. Dr. Levin then ascertained, as he later testified at the referee’s hearing, that Mr. Norman was diabetic, that his injured foot was infected, and that he complained of nausea, vertigo, insomnia and pain. Dr. Levin treated the foot, and administered medication, including increased dosages of insulin. The decedent continued his visits to and treatment by Dr. Levin until May 17, 1969, after which date, contrary to the doctor’s advice, he discontinued visiting the doctor and returned to work. Mr. Norman again consulted Dr. Levin on July 1, 1969. The doctor found that the decedent’s foot was turning dark, thus evidencing the “beginning of gangrene” and that the decedent was generally ill. Dr. Levin had the decedent admitted to a hospital under the care of a surgeon and an internist. Mr. Norman died on July 11, 1969. The official death certificate listed the causes of death as hepatorenal failure and hemorrhage due to advanced cirrhosis, diabetes mellitus and uremia.

The claimant had the burden of proving that her husband’s death was causally related to his injury at work. Since she prevailed below, we must affirm unless we conclude that constitutional rights were violated, the law was erroneously applied or the findings of fact are not supported by substantial evidence. Workmen’s Compensation Appeal Board and Barta v. Envelope Manufacturing Association, 18 Pa. Commonwealth Ct. 111, 334 A.2d 318 (1975).

The appellants advance two grounds for overturning the Board’s decision: the first, that the referee’s finding that Mr. Norman’s death was caused by the injury to his foot is not supported by the evidence, and the second, that the Board erred in not denying compensation by reason of the decedent’s failure, after May 17, 1969 and until July 1, 1969, to comply with his doctor’s instructions not to return to work and to continue in the doctor’s care.

Dr. Levin testified that on July 1, 1969, Mr. Norman’s foot was infected and had the appearance of the beginning of a gangrenous condition, and that the injury to the foot had thrown his “whole diabetic control out of wack.” It was his opinion that Mr. Norman would have lived “a good many more years if he had not had the accident.” The appellants’ medical witness, who testified from medical reports, testified that Mr. Norman’s foot was not infected or gangrenous at the time of death and that the accident of April 14,1969 did not contribute to his demise. An impartial medical witness offered the opinion that the injury was an aggravating causative factor that led to Mr. Norman’s death, but that it was not the primary cause of death. The appellants say that the opinions of Dr. Levin and the impartial medical witness were based on a mere supposition that Mr. Norman’s foot was gangrenous and that this was an unsubstantial basis for their conclusion that the death was hastened by the injury. The fallacy with the appellants’ argument is that Dr. Levin did not base his opinion solely on the presence of gangrene. It is clear that the decedent’s foot was badly infected. Dr. Levin testified that the injury, whether or not gangrenous, aggravated the decedent’s diabetes and led to the primary cause of death. This was substantial evidence supporting the referee’s finding on causation and we may not disturb the finding merely because another expert testified to the contrary. Weaver v. Workmen’s Compensation Appeal Board, 15 Pa. Commonwealth Ct. 292, 325 A.2d 673 (1974).

The appellants’ second argument is based on Section 306(f) of The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §581, which at the time applicable provided in part as follows:

“If the employee shall refuse reasonable services rendered by duly licensed practitioners of the healing arts ... tendered to him by his employer, he shall forfeit all rights to compensation for any injury or any increase in his incapacity shown to have resulted from such refusal.”

The contention is that Section 806(f) requires that benefits be denied because Mr. Norman returned to work and failed to consult with his own doctor after May 17, 1969 and until July 1, 1969. The fatal flaw in the thesis is that employer did not tender Dr. Levin’s services; they were obtained by the decedent. Therefore, Section 306 (f) has no application. Bird v. Brown, 157 Pa. Superior Ct. 49, 41 A.2d 881 (1949). The appellants’ brief seems to assert that it has been held that a claimant’s refusal to cooperate with his own physician works the forfeiture provided by Section 306(f). The cases cited for this proposition, Zbieg v. Rochester & Pittsburgh Coal Company, 175 Pa. Superior Ct. 308, 104 A.2d 158 (1954), and Visnic v. Westmoreland Coal Company, 155 Pa. Superior Ct. 199, 38 A.2d 539 (1944), do not support it. In neither case does it appear that the medical services assertedly refused were other than those tendered by the employer.

Order

And Now, this 12th day of January, 1976, it is ordered that:

1. The Commonwealth of Pennsylvania, Department of Labor and Industry pay to Dr. Harry Shubin, 1829 Pine Street, Philadelphia, Pa., the sum of $140.00 for his services as an impartial medical witness; and
2. Defendant pay compensation to Claimant at the rate of $25.50 per week commencing July 11, 1969 and for the duration of her widowhood, together with interest on all deferred payment of compensation. 72 P.S. §4651-4. The jurisdiction conferred therein was exclusive. See Kaufman v. Holcomb, 357 Pa. 514, 55 A.2d 534 (1947). Since the Commonwealth, as a sovereign, can only be sued by its consent, and since its consent for contractual suits has been conditioned on the claimant’s use of the Board of Arbitration of Claims, Orsatti may only establish the full counterclaim before the Board of Arbitration of Claims. Since the Board has already dismissed Orsatti’s claim, for failure to comply with the time limits established by the Legislature in its conditional granting of consent to be sued, 72 P.S. §4651-6, and since the court does not have jurisdiction to consider the whole of appellant’s counterclaim, the court was correct when it sustained the Commonwealth’s preliminary objections on the theory of Commonwealth v. Berks County, supra. [364 Pa. 447, 72 A.2d 129 (1950)].  