Workmen's Compensation Appeal Board v. Overmyer Mold Co.

*376POMEROY, Justice,

concurring.

Although I agree with the majority that section 306(f) of the Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531, requires appellee to pay for the chiropractor services incurred by appellant in connection with his work related injury, I cannot join in the majority’s interpretation of section 306(f).

Section 306(f) provides in pertinent part as follows:

The employer shall provide payment for reasonable surgical and medical services, services rendered by duly licensed practitioners of the healing arts, medicines, and supplies, as and when needed: Provided, That the employe may select a duly licensed practitioner of the healing arts of his own choice, unless at least five physicians shall have been designated by the employer ... in which instances the employe shall select a physician from among those designated. . (Emphasis added).

Relying upon the discrete definitions of “healing art” and “physician” contained in the Statutory Construction Act, 1 Pa.C.S.A. § 1991, the majority interprets the italicized portion of the above quoted section to mean that in the event that the employer designates five physicians, the employee must choose from those so designated only if the employee desires the treatment of a physician; if the employee does not choose to consult a physician, the majority concludes that the “unless” clause of section 306 (f) is inapplicable. I am unable to agree.

The provision of section 306(f) allowing employers to designate five physicians and, when the employer does so, requiring the employee to “select a physician from among those designated,” obviously was intended to accord employers some measure of control over the services obtained by the employee without unreasonably restricting the employee’s freedom of choice. The majority’s interpretation renders the proviso clause of section 306(f) *377almost meaningless and fails to effectuate what seems to be the clear legislative intent.

In my view, the proviso clause of section 306(f) must be read as a whole, and the legislature’s use of terms which although having similar connotations are differently defined should not be held to overrule the obvious meaning of the clause. So read, the clause means exactly what it says: the employee is free to make his own selection of a duly licensed practitioner of any of the healing arts unless the employer designates at least five physicians, in which case the employee must select one of the physicians so designated.1 Such a straight-forward reading insures that the purpose of the clause is fulfilled.

There is nothing in the language or purpose of section 306(f), however, which can reasonably be construed as precluding an employee who consults one of the employer’s designated physicians from seeking the services of another practitioner of the healing arts in the event that the consulted physician tells the injured employee that he the doctor is unable to help him. That was the situation in the case at bar. Appellant first sought the services of Dr. Testa, a physician designated by appellee pursuant to section 306(f). Only after Dr. Testa informed appellant that the doctor could not help him did appellant seek the services of Dr. Krupar, a doctor of chiropractic. In my view, therefore, appellant fully complied with the requirements of section 306(f), and appellee must pay for the services rendered by Dr. Krupar. Hence, I concur in the result reached by the majority.2

. Had the legislature intended the proviso clause of section 306(f) to have the meaning that the majority ascribes to it, the legislature undoubtedly would have phrased the clause differently. For example: “Provided, That the employe may select a duly licensed practitioner of the healing arts of his own choice, but if the employe desires to select a physician, and at least five physicians shall have been designated by the employer, then the employe shall select a physician from among those designated.”

. There is no dispute that section 306(f) requires an employer to pay for “services rendered by duly licensed practitioners of the healing arts.” Moreover, appellee does not claim that chiroprac*378tors are not practitioners of the healing arts, nor does appellee challenge the necessity of Dr. Krupar’s services or the reasonableness of his charges.