Friday, February 22, 2013

Automobile Modifications as Medical Care -No

In a work injury, the Employer is responsible for payment of "reasonable and necessary" medical care, which is causally related to the work injury.

Section 306 (f.1) of the Pennsylvania Workers Compensation Act requires the an employer to:
"provide payment for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses in accordance with this section".

Past appellate case decisions have expanded the definition of "orthopedic appliance" to include devices such as wheelchairs, stair glides, and in more limited circumstances, home modifications and vehicle modifications.

These past decisions do not require a payment for vehicle modification for every injured worker.
The Supreme Court has stated it will review these requests on a case-by-case basis and require payment "in proper circumstances".

Rundle v. WCAB (Lawn Tech Inc.), No. 1227 C.D. 2012, is an unreported panel decision of the Pennsylvania Commonwealth Court authored by Judge Leavitt on February 13, 2013 which addresses these issues.

Factual & Background History

in May 2003, Employee injured her right arm while shoveling stones in the course of her work duties as a landscape laborer. She was paid disability benefits.
In January 2009 she settled her indemnity wage loss benefits for a lump sum via a Compromise & Release settlement. Pursuant to that Agreement, the Employer remained responsible for "all causally related medical expenses".
In February 2010 Employee filed a Petition for Penalties for Employer's failure to provide her with safe transportation. At the hearing, she explained that her right arm injury, with residual pain and numbness, made it difficult for her to operate her personal vehicle, with a standard transmission. Her doctor stated it would be preferable for her to use an automatic transmission, as this would prevent much of her symptoms.
Employer did not contest these fact but argued it had no legal obligation to purchase a new vehicle.
When the WCJ questioned the new vehicle request, Claimant Counsel "left open" the issue of whether a new or used vehicle  would be satisfactory.
She was willing to have the value of her vehicle applied to the new purchase.
Employer argued a vehicle is not an orthopedic appliance, so it had no obligation to purchase one.

The WCJ denied the Penalty Petition. Employee was found credible that she used her mother's automatic transmission vehicle for longer trips and uses her vehicle for shorter trips. Shifting causes inflammation and pain in her neck, shoulder and back. Employee medical was found credible that an automatic transmission would be useful to her. But he concluded Employer was not responsible for a new or used vehicle.
WCJ referenced the recent Pa Supreme Court decision in Griffiths v. WCAB (Seven Stars Farm Inc) (2008). (MDS filed an amicus curae brief to Pa.Supreme Court on behalf of the Pa Defense Institute.)

The general rule from Griffiths is that a vehicle may qualify as an "orthopedic appliance" pursuant to Section 306. Griffiths was a C-5 Quadriplegic. He used a van to transport himself to medical appointments, in addition to other activities. That Employer accepted liability for the van conversion costs but not the purchase price of the van. The Supreme Court considered the van as an orthopedic appliance, providing mobility, similar to a wheelchair.

... back to Rundle with her uncomfortable arm... the Court held the "particular circumstances" of Griffiths were not present.

Practice Pointers:
1. The "generosity" of the workers' compensation system can only be stretched so far...
     IMO it is appropriate to decline the Rundle request and grant the Griffiths request.
    One of the underlying themes of Griffiths was the extent of the Employer responsibility.
    Was a new van due, one "fully loaded" or base model?
    Was the sticker price to be paid or 80% of usual and customary price?

2. The Pa Supreme Court did not establish a "bright line" rule, rather they emphasized that these cases
     must be assessed and decided on a case-by-case basis.

Query: ... change the facts, what if an automatic transmission was requested by an injured employee,
                in a work vehicle so the employee could continue to work...
                a relative no-brainer.

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