April 3, 2008

Digest of
Appellate Decisions
March 2008

Griffiths v. WCAB (Seven Stars Farm, Inc.),
148 MAP 2005 (Pa. Supreme Ct. 2008)

Purchase of a van in addition to the cost of retrofitting was an appropriate expense, since the van was deemed an “orthopedic appliance” under the Act; Act’s cost containment provisions were not applicable to the purchase or cost of retrofitting.

The Pennsylvania Supreme Court reversed the decision of the Commonwealth Court, which partially reversed the Commonwealth Court, Board and WCJ decisions. Claimant had been rendered quadriplegic as the result of a work injury and was confined to a wheelchair. After a four-month hospitalization, Claimant’s wife rented two different vans that had been modified to transport Claimant. Claimant needed transportation to medical appointments and to get out. Two different vans had been rented in order to compare features before purchase. Claimant finally purchased a third type of van, ending up with a final cost that was thousands less than the cost of either rented van. Employer, while stipulating to its liability for payment of eighty percent of the conversion costs, refused to pay anything for the base costs of the van itself.

Claimant filed the instant penalty petition, alleging that Employer was obligated to pay for not only the van rentals, but the van purchase. The WCJ granted the petition, noting that the modifications to the van were an expense for “orthopedic appliances” under the Act and concluded that payment for the modifications were of no benefit unless Claimant had a van. Since transportation was necessary to Claimant’s medical treatment, and Claimant had no resources to purchase a van otherwise, the WCJ found the payment for the van itself reasonable. The WCJ declined to apply the cost containment provision of the Act, since Employer and its insurer were not health care providers.

The Board affirmed the decision, except for the part that necessitated payment for the van itself, since it was not an orthopedic appliance under the Act. An en banc decision of the Commonwealth Court partially reversed the decision, ruling in favor of Employer in both the van purchase and cost containment issues.

On appeal, the Court noted that the van issue was one of first impression, and reviewed decisions of other states and then reviewed the particular wording of the Act. The Court determined that Claimant had not purchased the van as a “lifestyle choice.” The need for the modified van was a direct result of the work injury and the need for transportation to treatment. The Court held that the van was an appliance that addressed and was directly responsive to the permanent orthopedic issue brought on by Claimant’s injury.

A contrary decision would result in two classes of claimants: those who could afford to purchase a van and who would receive retrofitting, and those less fortunate financially who could not make the purchase and would not receive benefits. The Court cautioned that the Act did not provide for a windfall; a claimant’s lifestyle and resources may be relevant in fixing the appropriate expense owed by employer to secure an appropriate vehicle.

Finally, the Court overturned the ruling of the Commonwealth Court and held that the cost containment portions of the Act did not apply in this instance, since Employer was not a health care provider. Accordingly, the matter was remanded to the WCJ for further proceedings. Justice Eakin dissented and disagreed that the van could be construed as an “orthopedic appliance.”

Sueta v. WCAB (City of Scranton and PMA Group),
1905 C.D. 2007 (Pa. Cmwlth. 2008)

Relevant code section requires that medical records provided in response to a URO request need only be mailed within 30 days, and were not required to be received within that period.

Commonwealth Court vacated the order of the Board, which affirmed the WCJ’s decision to dismiss Claimant’s utilization review petition. Employer had made a UR request in 2005 regarding Claimant’s work injury from 1989. The URO requested Claimant’s records from the health care provider in question and asked him to respond within 30 days. Provider mailed the records with an office postmark within the appropriate time period, but they did not arrive until twelve days after posting.

The WCJ did not find the posting to be timely because the postage mark was from an office meter, not the U.S. Post Office. Absent a timely mailing, the WCJ ruled that he did not have the jurisdiction to review the URO’s determination. The Board affirmed, but did not accept the WCJ’s rationale. The Board held that mailing the records and a legal holiday extended the deadline for their receipt by the URO another four days. Since the records were received later than that, the WCJ had no jurisdiction to her Claimant’s petition.

On appeal, Claimant argued that the regulations called for the medical records to be mailed within 30 days of the request, not to be received within that time frame. Claimant contended that there was no basis for the mailing calculation made by the Board, and that her doctor complied with the only timeframe set forth by regulation. The Court agreed and held that the code section clearly governed only when records had to be mailed, not when they had to be received. The matter was vacated and remanded to the WCJ for a URO determination.

Mason v. WCAB (Joy Mining Machinery and AIG Claim Services),
1906 C.D. 2007 (Pa. Cmwlth. 2008)

For the purposes of terminating disability benefits, voluntary acceptance of a disability pension supports the presumption that a claimant has left the workforce unless it can be shown otherwise.

Commonwealth Court reversed the decision of the Board, which terminated Claimant’s benefits. Claimant had been employed as a welder when he sustained an injury in 1992. He began receiving total disability benefits two years later that were modified to partial benefits when he returned to work. A re-aggravation of the injury reinstated total benefits in 1995 for another year when they were returned to the partial rate. The benefits were suspended in 2000, but Claimant did not contest the suspension. Two years later, Claimant stopped working altogether when he underwent surgery on his knees. Claimant applied for reinstatement with Employer, but was denied. When Employer did not offer him other positions, Claimant filed for a disability pension, which was granted.

Claimant last worked for Employer in 2005. Prior to that time, Claimant met with a vocational counselor who identified several positions for Claimant. Employer filed the instant petition to terminate benefits, arguing that Claimant had voluntarily removed himself from the workforce. The vocational counselor testified that Claimant had been given several leads, but failed to follow up on them. Claimant testified that he had not received all the leads.

The WCJ found that Claimant was not credible and had not searched in good faith for new work, since he feared losing his Social Security and Employer-funded disability benefits. As a result, Claimant’s benefits were modified. Employer appealed and contended that the benefits should have been suspended, since Claimant had removed himself from the workforce. The Board agreed and ruled that the burden had shifted to Claimant to show that he had not withdrawn. When Claimant had failed to respond in good faith to suitable employment within his capabilities, the Board concluded that he was unable to meet his burden for continued benefits. Claimant then appealed.

The Court noted that, when a Claimant voluntarily accepted a pension, he is presumed to have left the workforce unless he can show otherwise. The Court found that the WCJ had incorrectly found that Claimant had not left the workforce on the mistaken belief that all Claimant had to show was that his work-related injury forced him to retire. The WCJ did not make findings as to whether Claimant established that he was seeking employment following his retirement. Accordingly, the Court vacated the Board’s decision and remanded the matter back to the WCJ to make the findings necessary to determine whether Claimant had left the workforce.

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