Supreme Court of PA reviewed the scope of Employer liability for a traveling employee injury after attendance at an Employer-sponsored social event.

The Supreme Court of Pennsylvania recently reviewed the scope of an Employer’s liability for an injury sustained after a traveling employee attended an Employer-sponsored social event.

As we approach the time of the year for Employer-sponsored Holiday and End-of -the- Year social gatherings, the analysis of the traveling employee doctrine by the Pennsylvania Supreme Court is both informative and instructive for employers, insurers and workers’ compensation practitioners.

See: PETERS v. WCAB (CINTAS CORPORATION), No. 1 MAP 2020; 

DECIDED: November 17, 2021, authored by JUSTICE MUNDY 

(Appeal from the Commonwealth Court at No. 1835 CD 2017 dated July 18, 2019 Affirming the decision of the WCAB at No.A16-1263 dated November 16, 2017.)

HOLDING:

An Employee who travels in the course of their work-related duties is presumed to remain within the scope of employment when attending an Employer-sponsored social event. An Employer is responsible for injury sustained by the Employee, after his departure from that work-related event - if he did not abandon his employment prior to the accident, via actions which “were so foreign to and removed from his usual employment that they constitute an abandonment of that employment.”

This case was remanded to the WCJ for additional fact-finding to resolve the conflicting testimony of the Employee and his sales manager, as to whether the Employee was traveling back to his home or traveling to/from another non-work event, at the time of his accident.

Although there was no announcement of a new rule of law, or even a final determination in this specific case, the analysis employed by the Pennsylvania Supreme Court is instructive for Employers and their Workers’ Compensation insurers, when assessing issues of responsibility for injury occurring in work-related travel and social function attendance.

Factual Background

Factual distinctions may determine the compensability of an injury. In the instant case, the facts reflect that this Employee was engaged in work-related travel as a regular part of his work duties. He was employed as a uniform sales representative, which included three half-days in the Employer’s office and travel for the remainder of the work week, to meet with potential customers and present products in his sales region.

Following his last sales appointment, Employee drove pass the highway exit to his home, on his way to an Employer-sponsored event at a local pub. After leaving that event, the Employee was injured in a motor vehicle accident. A claim petition was filed to seek benefits, as Employee alleged the motor vehicle accident occurred during the course of his employment.

Employee testified that his sales manager invited the sales representatives to this pub event. Employee described this event as a celebration to mark the end of a “sales blitz”. These types of events were held on prior occasions during sales blitzes.  He believed these events to be “sort of” mandatory. At the event, he said there was a recap of the work performed during the sales blitz. Food and drinks were paid by the Employer. Employee testified that after he left the event he was involved in a motor vehicle accident, which occurred on his way home.

Conflicting testimony was presented regarding the description and nature of the pub event. Employer testimony from a sales representative and a Sales Manager confirmed this type of event was routinely held during sales blitzes, as a “voluntary perk”. Contrary to the Employee’s testimony, they both emphasized the voluntariness and social nature of the event. They described this as a chance for the sales representatives to relax after the sales blitz. They disputed the Employee’s representation that the sales blitz work was recapped at the event.  The sales representative specifically testified that work was not discussed during the event, rather the conversations were general “chit chat.” 

The Sales Manager testified that he received a call from the Employee later that evening, reporting that he had been in a motor vehicle accident. Significantly, He further testified that during this phone conversation that Employee stated that he was not on his way home from the pub event at the time of the motor vehicle accident, but rather he was on his way from some other event. However, the Sales Manager testified that he could not recall specifically where the Employee said he was coming from. (this becomes relevant in the final analysis of this claim).

Supreme Court Analysis

As noted above, the Supreme Court did not announce a new rule of law regarding the scope of compensability of injury sustained by a traveling employee. As a starting point in its analysis, the Supreme Court cited Section 301(a) of the Act, for the proposition that an employer is liable for compensation for injury or death sustained in the course of one’s employment. An employee’s injury is considered to have arisen in the course of employment in the following two circumstances: 

When an employee is injured on or off the employer’s premises while engaged in furtherance of the employer’s business or affairs; 

When an employee is not furthering the employer’s business or affairs but nonetheless  is on the premises occupied or under the control of the employer; upon which the employer’s business or affairs are being carried on; 

When required by the nature of his employment to be present on his employer’s premises; and sustained injuries caused by the condition of the premises or by operation of the employer’s business or affairs thereon. (301(a). 

In the litigation of a claim petition, the injured worker has the burden of proof to demonstrate that his/her injury was sustained in the course of employment.

In the instant case this Employee was injured off Employer’s premises. Therefore, for this accident to be considered to have “arisen in the course of his employment”, the Employee must have been furthering the business and affairs of the Employer at the time of his motor vehicle accident.

The Traveling Employee Presumption

The Supreme Court reviewed the historical development of the traveling employee doctrine. Employee argued that he was in the course of his employment at the time of his motor vehicle accident, pursuant to this doctrine.

The traveling employee doctrine provides:

When a traveling employee is injured after setting out on the business of his employer,  it is presumed that he was furthering the employer’s business at the time of the injury. The employer bears the burden of rebutting the presumption. To meet its burden, the employer must prove that the employee’s actions were so foreign to and removed from his usual employment that they constitute an abandonment of that employment.

Temporary departures from the work route for the purpose of administering to the comforts of an off-the-premises employee, including authorized breaks for lunch, will not interrupt the continuity of the one’s course of employment.

For example, a traveling salesperson cannot carry out the business of the employer without traveling to present products and solicit business. As such, the act of traveling, in and of itself, furthers the business and affairs of a traveling employee’s employer. So too do the activities incidental to travel such as lodging, refueling, and stopping for food and drink. During their travels, traveling employees are subject to the risks associated with travel that stationary employees are not. Therefore, the “hazards of travel become the hazards of employment”. See:  Ball-Foster Glass Container Co.

Application of the Traveling Employee Doctrine

The Supreme Court rejected the Employer’s argument (and the WCJ, WCAB and Commonwealth Court conclusion) that this Employee abandoned his employment when he passed the highway exit to his home and proceeded to the pub event, as his attendance was not mandatory for his employment nor was the event “work-related.”

It was not disputed that this individual was a traveling employee. As such, he is presumed to remain in the course of his employment, unless the employer rebuts the presumption by showing that his actions, at some point prior to the injury, constituted abandonment of his employment.

The Supreme Court concluded that this Employee did not abandon his employment by attending the pub event. The WCJ found testimony was credible that these types of events were regularly held during sales blitzes. The Court reasoned that it would be difficult to conclude that attending a regularly held type of event constituted an act so foreign to and removed from his regular employment to be considered abandonment of employment.

Also, the WCJ found the event to be voluntary and social in nature. However, those facts, do not mean the event was not work related! The Employer hosted and sponsored the event. While work may not have been discussed at the event, the event still benefited Employer by fostering relationships and improving morale. See: Investors Diversified Services.

The Supreme Court could not conclude that this Employee abandoned his employment by attending the pub event. But their analysis did not end there, as there remains a question as to whether the Employee abandoned his employment sometime between leaving the pub event and the occurrence of the motor vehicle accident.

The record reflects conflicting testimony as to where this Employee was coming from at

the time of the motor vehicle accident. The WCJ did not explicitly resolve this conflicting testimony. As the conflicting witness testimony was unresolved, this leaves open the question of whether the Employee took some action after leaving the pub event that could constitute abandonment of his employment.

As often stated, “the WCJ is the ultimate finder of fact and the exclusive arbiter of credibility and evidentiary weight". The Supreme Court remanded this case to the WCJ to resolve the conflicting testimony with respect to whether the Employee was coming from the pub event at the time of his accident or coming from some other unknown non-work event.

Recommendations:

1.    This decision was not an announcement of a new rule of law regarding the extent of compensability for injury to a traveling employee. Rather, this decision reflects an analysis of the existing law with application to the specific facts presented, to reach a different conclusion regarding the compensability of an injury sustained after attendance at a work event.

To properly assess the compensability of an injury to a traveling employee, the Work Comp professional must engage in a thorough investigation of the facts, including the past practices of the Employer.

2.    The assessment of responsibility for injury to a non-traveling employee, sustained after attendance at a work-related event is different.

As cited by the Supreme Court, in the past, a non-traveling employee, injured after attendance at a work related event, may not be in the course of employment after the event has ended and the employee is traveling home. 

Citing: Brown v. WCAB (Liken Employment Nursing Services) (Pa.Cmwlth. 1991), and Canning v. WCAB (Pa. Senate) (Pa. Cmwlth. 2015) The claimant in Brown, who was not a traveling employee, was struck by a motor vehicle while crossing a public roadway after leaving her employer’s annual Christmas party held at the employer’s office. The Commonwealth Court concluded that even if the party benefited the employer by cultivating interpersonal relationships, the claimant was not furthering her employer’s business at the time of her accident because she was injured while returning from the employer’s party and not while attending the social event.

Query: would the result in Brown be different after the Peters decision ?

What about the “special mission” line of cases, which can expand the Employer’s liability to a non-traveling employee?

In preparation of one's defense to a claim, one must carefully investigate the facts presented regarding: (i) the details of the employment; (ii) the details of the event; (iii) the past practices of the Employer regarding events.

 

 

 

 

Two PA Appellate Court Decisions affirm the denial of Claim Petitions where the WCJ authored a reasoned decision.

Two Recent Commonwealth Court decisions provide similar reasoning for the affirmation of the denial of claim petitions by the Workers Compensation Judge.

The Commonwealth Court emphasized that the "Reasoned Decision" standard for review of live testimony does not require the articulation of specific reasons for rejection of testimony that was found to be not credible.

Also the WCJ does not err in failing to make a specific credibility determination of the Employer medical evidence – where the claimant does not meet his/her burden of proof.

Beristain v. WCAB (Broadcom Inc.): No. 46 C.D. 2021;  Memorandum Opinion filed: November 15, 2021

In Beristain, the Claimant appealed the Workers' Compensation Appeal Board (WCAB) order which affirmed the Workers' Compensation Judge (WCJ) denial of Claim petition. The issue on appeal was whether the WCJ failed to issue a reasoned decision under Section 422(a) of the Act. upon review, the Commonwealth Court affirmed the claim denial.

The Claimant petition alleged he suffered a work injury of lumbar disc protrusions caused by the repetitive nature of his job. Claimant’s job duties consisted of polishing and grinding lightweight silicon wafers, which required that he stand and lean forward while rotating his upper body.

The WCJ rejected Claimant’s testimony as not credible based on his personal observation of Claimant. Claimant's medical witness - Dr. Grodofsky was also deemed not credible to establish a causal connection between work duties and Claimant's lumbar spine condition.The WCJ noted that Dr.Grodofsky’s knowledge of Claimant’s work duties came exclusively from Claimant, whose testimony was discredited. The WCJ reasoned that Dr. Grodofsky lacked sufficient knowledge of Claimant’s work duties to support his opinion that their repetitive nature caused the alleged work injury.

Employer's medical expert was Dr. Componovo. In his IME report he stated a MRI showed a disc protrusion at the L5-S1 level but he did not believe this finding was responsible for Claimant’s symptoms. The MRI findings were “extremely mild,” and he did not correlate this finding with Claimant’s subjective complaints. Further, Dr. Componovo was not aware of any mechanism of injury or work exposure that would have caused Claimant’s symptoms. He felt that Claimant’s symptoms were “more likely than not” unrelated to his job.

On Appeal, Claimant argued the WCJ failed to issue a reasoned decision as: (1) the WCJ did not articulate his reasons for finding Claimant’s testimony not credible, and (2) he did not make any credibility determinations with regard to the testimony of Employer’s expert, Dr. Componovo. .

Commonwealth Court Reasoning

The Commonwealth Court analysis began with a review of the well established principle that the burden of proof in an original claim petition rests on the claimant to prove all the elements necessary to support an award of benefits under the Act. Inglis House v. WCAB (Reedy) (Pa. 1993). The claimant’s burden to prove disability never shifts to the employer. See: Morrison v. WCAB (Rothman Inst.) (Pa. Cmwlth. 2010).

An equally well established legal standard is the Section 422(a) requirement that the WCJ issue a decision that allows for adequate review by the appellate courts. Daniels v. WCAB (Tristate Transp.)(Pa. 2003). When the WCJ has the advantage of seeing the witnesses testify and assessing their demeanor, a mere conclusion as to which witness was deemed credible is sufficient to render the decision adequately reasoned under Section 422(a).

In the instance case, Claimant argued, without citation to relevant legal authority, that the WCJ’s rejection of Claimant’s live testimony necessitated additional fact finding beyond the standard articulated in Daniels. The Commonwealth Court stated there is no merit to Claimant's argument. The WCJ is not compelled to specify the basis for his rejection of Claimant’s testimony.

Claimant also argued the WCJ erred when he failed to address Dr. Componovo’s testimony. Claimant asserted this testimony corroborates his evidence that he suffered a compensable work injury.

The Commonwealth Court concluded that the WCJ did not err when he failed to render a credibility determination regarding the testimony of Dr. Componovo. Although Section 422(a) required the WCJ to make “findings of fact and conclusions of law based upon the evidence as a whole,” he was not required to address all the evidence presented. See: Montgomery Tank Lines v. WCAB (Humphries), 792 (Pa. Cmwlth.2002). The WCJ only had to make the findings necessary to resolve the issues raised by the evidence and relevant to the decision. 

***

A second recent Commonwealth Court reported at Sufran v. WCAB (C&S Wholesale);  Memorandum Opinion filed November 15, 2021, articulated a similar analysis and reasoning in the affirmation of another claim petition denial. 

In Sufran, the Claimant appealed WCAB order which affirmed the WCJ decision to deny a Claim petition. The WCJ found that she failed to establish she sustained a work injury. The Claim petition alleged a work-related injury, in the nature of: a rotator cuff sprain; right and left knee pain; upper right arm pain; a knee sprain, which she allegedly sustained while working as a selector for Employer.

The WCJ denied the Claim petition, rejecting Claimant’s live testimony as not credible. This credibility determination was the basis for the WCJ’s rejection of Dr. Levinstein’s testimony, as his understanding of the alleged work injury was based on information Claimant provided. TheWCJ found the testimony of Dr. Levinstein was not credible as his testimony that Claimant did not return to work after February 24, 2017, was contradicted by Claimant’s testimony. Dr. Levinstein opined that Claimant’s alleged work injury was caused by the repetitiveness of her work duties; however, no evidence was presented that established the repetitive nature of those duties. Dr. Levinstein diagnosed and treated Claimant, even though his initial examination failed to reveal any objective findings.

The WCJ rejected Claimant’s and Dr. Levinstein’s testimony as not credible. On this basis,  the WCJ did not address the credibility of Employer medical witness, Dr. Mauthe. The WCJ found there was no credible evidence that Claimant suffered a work injury in the course and scope of her employment. Claimant failed to meet her burden of proof

On appeal Claimant argued: (1) the WCJ failed to issue a reasoned decision as the WCJ did not adequately explain his credibility determinations with respect to Claimant’s and Dr. Levinstein’s testimony; (2) the WCJ’s brief statement rejecting Claimant’s live testimony does not permit adequate appellate review; (3) the WCJ’s credibility findings as to Dr. Levinstein cannot be properly reviewed absent further explanation regarding Claimant’s credibility, given that Dr. Levinstein’s testimony was rejected in part because it relied on Claimant’s information; (4) the WCJ erred when he failed to make any findings or render a credibility determination of Dr. Mauthe’s testimony.

The Commonwealth Court affirmed the denial of the Claim petition and explained that as Claimant testified live before the WCJ - who assessed Claimant’s demeanor and concluded that “Claimant’s live testimony was not credible" -  under the Daniels standard , the WCJ’s conclusion that Claimant lacked credibility is sufficient, and, therefore, the reasoned decision requirement under Section 422(a) was satisfied.

In regards to Claimant's argument with respect to Dr. Levinstein’s testimony, the WCJ clearly articulated multiple objective bases for his credibility determination. While Dr. Levinstein opined that Claimant’s alleged work injury was caused by the repetitive nature of her work duties, Claimant presented no evidence in this regard. Finally, the WCJ found that Dr. Levinstein diagnosed and treated Claimant despite an apparent lack of objective findings in his initial examination.

The Court reasoned, that once the WCJ rejected the testimony of Claimant and Dr. Levinstein as not credible, there was no further evidence of record that Claimant could have relied on to satisfy her burden of proof. Because Claimant failed to offer credible evidence in support of her claim petition, it was not necessary for the WCJ to assess Dr. Mauthe’s credibility to render a reasoned decision.

Practice Pointers:

1. Yes, it is possible to succeed in the litigation of a Pennsylvania workers compensation claim petition. 

One must present sufficient evidence to allow the Workers' Compensation Judge to conclude that the Claimant's medical expert opinion is not based upon the facts established by the evidence.

One may also prevail when conflicting medical expert opinions are presented. If the Employer presents an unequivocal medical expert opinion - which is found to be credible by the Workers' Compensation Judge -  then conflicting evidence may be resolved in favor of the Employer's position. 

2. A successful claim petition litigation result begins with an investigation of the accident circumstances, followed by the discovery of all pertinent medical records and the retention of a medical expert, who will review and address all of the issues presented. 

Pennsylvania Employers – Now is a good time to review your Post-Injury Drug Testing Procedures & Policies.

 

Pennsylvania Employers – Now is a good time to review your Post-Injury Drug Testing Procedures & Policies.

A recent Commonwealth Court decision considered an employee’s entitlement to wage loss benefits when he was  terminated for noncompliance with the Employer’s post-injury drug-testing policy.

See: Bear Staffing v. WCAB (Shawn Logan): No. 949 C.D. 2020; Memorandum Opinion, not reported; Filed October 15, 2021.

The Commonwealth Court concluded the Workers’ Compensation Judge properly determined that the Employer failed to meet its burden of proving that Claimant was discharged for work-related misconduct, the misconduct being his noncompliance with the Employer’s post-injury drug-testing policy. The WCJ’s found the reasons for Employer’s termination of Claimant were not “credible”.  As the WCJ has sole authority over issues of credibility of witnesses, this finding and conclusion was not reviewed by the Court on appeal.

The facts presented warrant our further review...

Factual and Procedural History

Claimant worked for a temporary employment agency, which assigned him to work at a chocolates manufacturer. Claimant slipped and fell, striking his head and back on the ground. He sustained injuries to his head, neck, and lower back. A Claim petition was filed and Employer filed a timely answer. Employer issued an amended Notice of Temporary Compensation Payable; Medical-Only (NTCP-MO), acknowledging Claimant’s work-related injury. Employer subsequently filed a Petition to Terminate based upon it’s IME results.

One day post-injury, Claimant was directed to a drug test at WorkNet in accordance with Employer’s policies.  A WorkNet employee testified she took Claimant through the drug and alcohol testing. A breathalyzer test for the presence of alcohol, returned no indications. For the drug screening, Claimant was required to provide a urine sample. The first sample exceeded the 100-degree temperature threshold for an acceptable sample. The Employer policies required Claimant to provide a second sample under observation. Claimant said he was unable to provide another sample right away, so he was given some water and waited.

A male physician was available to observe Claimant when he provided the second sample. Claimant and the physician went into a bathroom. Shortly thereafter, they came out and Claimant appeared angry. He declared the observation was an invasion of his privacy. Claimant did not provide a second urine sample. The WorkNet employee testified the original sample was outside the required temperature range. As a second sample was not obtained, the drug testing was not completed.

The physician also testified regarding the procedures. He has encountered people who have difficulty providing a second sample as they recently urinated and/or assert that they cannot do so while someone is watching them. The physician testified he went with Claimant and Claimant stated that he was uncomfortable being observed. Claimant appeared angry and objected to “an invasion of his privacy’. He cautioned Claimant that this was something that could cause him to lose his job, but Claimant left without providing a second urine sample.

Employer’s Executive Vice President and COO, testified about its drug-testing policy and the actions after Claimant’s testing. The Employer policies concerning drug and alcohol testing following work-related injuries are covered in the hiring process. Claimant signed an acknowledgment of these policies when he was hired.

When Claimant was released for restricted duty work, he sent a letter to Claimant, indicating the Employer was unable to offer Claimant future work due to his failure to comply with the post-injury drug-testing policy. Mr. Johnson testified the termination of Claimant’s employment was due solely to the violation of the policy. If Claimant had not violated their policy, Employer would have found work for Claimant within his restrictions, without a loss in earnings.

Workers’ Compensation Judge Decision

The WCJ found that “Claimant is also credible and convincing that he was not purposefully refusing to provide a urine sample as required by . . . Employer’s work policy.” The WorkNet employee and physician were found to be credible regarding their attempts to obtain a second urine sample; however, the WCJ credited Claimant’s testimony “as to Claimant’s inability to provide the second urine sample and not his refusal to provide that sample.”

The WCJ found that Claimant met his burden of proof to establish he sustained work-related injuries that rendered him unable to perform his job. The WCJ concluded, Employer failed to establish that Claimant fully recovered from his work injuries. (Claimant’s medical evidence  reflected diagnoses of: a scalp contusion, post-concussive syndrome, post-traumatic cephalgia, cervical strain/sprain, thoracic sprain/strain, lumbosacral strain/sprain with evidence of radiculopathy).

The Appeal Board affirmed the WCJ’s decision, reasoning the WCJ determined that Claimant’s discharge from employment resulted from his inability rather than his bad faith refusal to comply with Employer’s drug-testing policy. The Employer failed to establish the requisite “bad faith willful misconduct” necessary for the suspension of Claimant’s disability benefits.

Commonwealth Court Reasoning for its Conclusions

On appeal Employer argued the WCJ erred in awarding Claimant ongoing disability benefits where he was terminated for failing to comply with Employer’s drug-testing policy, as his termination, rather than his injury, was the cause of his subsequent wage loss.

Employer acknowledged the WCJ made credibility determinations regarding Claimant’s inability to provide a second urine sample - but this should not be the end of the analysis, as the WCJ also credited the WorkNet employee and physician descriptions of the Claimant’s failure to provide a second sample, including Claimant’s angry behavior and use of profanity. Employer argued this demonstrated that Claimant refused to cooperate with the testing and there was a lack of good faith.

Employer argued it terminated Claimant and was unable to offer him future work due to his failure to comply with the drug-testing policy - this was the sole reason for his loss of earnings.

Employer compared this case to Edwards v. WCAB (Sear’s Logistic Services) (Pa. Cmwlth. 2001) where an employee sustained a work injury and took a post-injury drug test, which indicated his use of an illegal drug. Employer terminated him due to this result. The Court affirmed the suspension of benefits following his employment termination, as the employee “was discharged for violating the employer’s policy prohibiting a use of illegal drugs. His loss of earnings after discharge was a result of his own action, not the work injury”.

In the instant case, the Court did not reverse the benefit award based upon Edwards, as this WCJ credited Claimant’s explanation that he was unable to provide a second urine sample while being observed, and that he did not intentionally refuse to comply with Employer’s drug-testing policy.

When an employer alleges the claimant’s loss of earnings is the result of a post-injury involuntary discharge, the employer has the burden of proving that suitable work was available or would have been available, but for, the circumstances which lead to the claimant’s discharge.See: Reyes v. WCAB (AMTEC) (Pa. Cmwlth. 2009) quoting Second Breath v. WCAB (Gurski) (Pa. Cmwlth. 2002).

A claimant is not entitled to disability benefits where the loss of earnings is a result of a discharge for bad faith conduct that was committed by the claimant subsequent to the injury or was not known to the employer until after the injury. See;  Vista International Hotel v. WCAB (Daniels) (Pa. 1999) and BJ’s Wholesale Club v. WCAB (Pearson)(Pa. Cmwlth. 2012).

The WCJ must determine whether a claimant was discharged for conduct evidencing a lack of good faith. This is a question of fact to be determined by the WCJ.

The Court noted the short-coming in this Employer’s argument is that case precedents emphasize the initial credibility determination of the WCJ, in his role as fact-finder, as to whether the claimant acted in bad faith with respect to an employer’s rule or policy, resulting in the discharge. See, e.g., Vista International Hotel, 742 A.2d at 659.

The Court concluded  the WCJ properly determined that employer failed to meet its burden of proving that claimant was discharged for work-related misconduct. The WCJ specifically found the reasons for employer’s termination of claimant were not credible.

The WCJ expressly credited Claimant’s testimony that he did not intentionally refuse to comply with the drug-testing policy. Instead he was unable to comply as he could not produce a second urine sample while observed. The WCJ’s findings support the conclusion that Claimant did not act in bad faith with respect to the Employer’s drug test policy, even though his failure to comply resulted in his termination.  Once again, the Court emphasized the WCJ has sole authority over issues of credibility of witnesses.

PRACTICE POINTERS:

       1.        We recommend review of the Employer post-injury drug testing policies with your legal counsel and Human Resources professionals.

       2.        Address this issue of an Employee asserting he/she is unable to provide a first or second urine sample. Do your testing policies require observation of the employee? Are there alternative policies or procedures that will allow for valid testing?

       3.        A simple Google search - will identify the validity issues raised by the receipt of a urine sample that exceeds the 100-degree temperature threshold for an acceptable sample.

Review the testing procedures utilized to maintain the test site integrity.

 

Important PA Work Comp Update: Notification of Suspension/Modification; LIBC-751 form must be Notarized. COVID suspension of Notary Requirement has ended.

 Bureau of Workers Compensation message - 

Notary Requirement for LIBC-751 (Notification of Modification/Suspension) as of Oct. 1, 2021

 

As of Sept. 30, 2021, the suspension of regulations governing the notary requirement on the Notification of Suspension/Modification (LIBC-751) ended. As of Oct. 1, 2021, the signature required on the LIBC-751 should be properly notarized. The Notification of Suspension or Modification Pursuant to Section (C) & (D); LIBC-751 form allows the Employer and Insurer to suspension or modify the indemnity wage loss benefit status of the injured worker, upon a return to work, without the necessity of having the worker sign a document.  The LIBC- 751 document must be signed by the employer, notarized and filed within seven (7) days of the return to work. The Notice must be provided to the worker. If the worker disputes the change of status, a "challenge" may be filed within 20 days by completing the appropriate section of the LIBC form. A prompt hearing will be scheduled before a Workers' Compensation Judge.  In the WCJ Challenge hearing, the only issue before the WCJ is the worker's status. If the worker is no longer employed  or working at reduced wages, indemnity wage loss benefits will be reinstated. If the Employer/Insurer wishes to pursue a Suspension or Modification remedy - they must file a separate petition.

PA Work Comp Act allows for assessment of 50% penalty for delay in Fatal Claim Award

 

Timely benefit payment is required by the Pennsylvania Workers' Compensation Act. Section 428 of states that an employer violates the Act if it fails to make payments within 30 days of the date on which its obligation to pay arises. 

Section 430(b) of the Act specifically cautions that “any insurer or employer who . . . refuses to make any payment provided for in the WCJ’s decision without filing a petition and being granted a supersedeas shall be subject to a penalty as provided in section 435.

Only a grant of supersedeas relieves an employe/insurer of its obligation to pay an award.

 A recent appellate decision addressed the propriety of a WCJ assessment of a 50 % penalty for delay in payment of a Fatal Claim petition award. 

See: City of Philadelphia v. WCAB (Thompson) 217 C.D. 2020; May 26, 2021; (order for publication September 28, 2021) 

Factual & Procedural Background

A WCJ order granted a Firefighter Cancer Fatal Claim. The WCJ ordered Employer to pay indemnity benefits, funeral expenses, reasonable litigation costs and statutory interest. “Claimant is entitled to weekly benefits at the rate of [50%] of Decedent’s average weekly wage at the time he last worked in 2010 …”.

Employer appealed this award to the WCAB. The Board issued a denial of supersedeas.

Claimant filed a penalty petition as Employer failed to pay benefits following the WCJ’s fatal claim petition award and the Board’s order denying supersedeas.

After the penalty petition hearing, WCJ found Employer admitted that it had not paid Claimant any indemnity benefits. Instead, Employer argued that its failure to comply with the WCJ’s order and the Board’s denial of supersedeas was justified because it was unclear whether Claimant’s benefit rate was 50%, as provided for in the WCJ’s order, or 51% as provided for in the Act. Employer also asserted that it was unable to calculate Decedent’s AWW and the benefit rate.

In the WCJ penalty petition decision (rendered prior to Board remand order) WCJ rejected Employer’s arguments.  WCJ found the initial decision and order was “clear that 50% of Decedent’s AWW calculated at the time he last worked for Employer in 2010 should be paid with a statutory interest.

WCJ further found that irrespective of whether the benefit rate should have been 50% or 51% percent, this is not sufficient grounds for the Employer to blatantly disregard the WCJ order and the WCAB supersedeas denial.

WCJ stated -  while there was no earning documentation submitted in the claim petition litigation, Employer cannot credibly argue an inability to calculate an AWW and compensation rate inasmuch as wage records are within the complete control of  Employer.

Employer cannot credibly argue an inability to ascertain Claimant’s last date of work and/or retirement date as any attendance records for Claimant are within the complete control of the Employer. Any information presented by Claimant would have come directly from attendance records generated by Employer.

WCJ noted -  If a Board order calculates the wages differently than what was paid by Employer, Employer would have a Supersedeas Fund remedy for reimbursement of any overpayment.

WCJ found – the Employer arguments “to be disingenuous” as the initial WCJ order was clear and the information missing was within the control of Employer.

WCJ Penalty petition decision - Employer violated the Act. WCJ imposed a 50% penalty upon Employer for failing to comply with the WCJ order and the Board’s order denying supersedeas.

Note: the Board subsequently remanded the Employer appeal of the Fatal Claim award for the WCJ to reconsider the merits of the fatal claim petition based on intervening case law; the PA Supreme Ct decision in Sladek.

Employer appeal Penalty award to WCAB

Employer argued that Claimant had an affirmative duty to establish Decedent’s AWW and thus Employer did not violate the Act. 

WCAB- rejected Employer’s contention that the WCJ’s decision was unclear as to the date to be used to calculate the AWW and benefits due, as these issues are decided by statutory law “and the benefits due were discernable.”

WCAB - Employer presented no evidence of a good faith payment. Employer violated the Act. WCJ did not abuse her discretion in imposing a penalty.

Employer appeal of penalty petition award to Commonwealth Court

CW CT -  “It is well-settled that where an employer fails to commence payment of compensation in accordance with a WCJ’s order, the failure to make payment constitutes a violation of the Act and the employer is subject to the imposition of penalties”.

CW CT - Section 428 states that an employer violates the Act if it fails to make payments within 30 days of the date on which its obligation to pay arises. Further, section 430(b) of the Act specifically cautions that “any insurer or employer who . . . refuses to make any payment provided for in the WCJ’s decision without filing a petition and being granted a supersedeas shall be subject to a penalty as provided in section 435 … “Indeed, only a grant of supersedeas relieves an employer of an obligation to pay.” 

CW CT reviewed prior decisions assessing 50% penalties. The CW CT concluded - WCJ did not abuse her discretion in imposing a 50% penalty for Employer’s significant delay in tendering payments for indemnity benefits to Claimant after the Board denied supersedeas.

… As both the WCJ and the Board recognized, Employer was (and presumably continues to be) in possession of records that not only pertain to—but also serve as a sufficient basis to verify—Claimant’s actual wages and AWW. Employer does not assert that it did not have access to such information.

Recommendations/ Practice Pointers 

As suggested by the Appeal Board, a best practice is to issue payment of a disputed award. Only submission and grant of a supersedeas request, allows the Employer to withhold benefit payments during the pendency of one's appeal.

Denial of the supersedeas request, requires timely benefit payment. 

As a general rule, the claimant has the burden of proof to establish each element of the claim petition. This would include the first date that benefit are requested, together with submission of documentation of the average weekly wage. 

However, in this instance, the WCJ, WCAB and Commonwealth Court concluded the Employer has access to this information - such that, its explanation of its failure to commence payment, lacked merit. 

 

A WCJ approved Compromise and Release Settlement cannot be negated by a subsequent allegation there was no "meeting of the minds" regarding MSA medical expenses.

Lehigh Specialty Melting, Inc. v. WCAB (Bosco): No. 569 C.D. 2020

Employer’s Petition to Review requested relief and enforcement of the terms of an approved Compromise and Release settlement. Consistent with the terms of a C&R settlement, Employer obtained a Medical Set-Aside (MSA) approved by CMS. Claimant refused to execute the paperwork necessary to secure the MSA (as agreed upon in the C&R) as the MSA did not include expenses for medical marijuana. Lehigh Specialty Melting, Inc. 

WCJ Decision granted Employer's Petition. WCAB Order reversed.    Commonwealth Court reinstated WCJ decision.

September 21, 2021 ordered that the Memorandum Opinion filed on July 13, 2021 shall be designated OPINION and it shall be reported.

The Commonwealth Court ruled that once a C&R has been approved, a claimant cannot ask a workers’ compensation judge to negate it based on the contention that there was no meeting of the minds. After WCJ approval, the only means for a party to negate the C&R is to convince a WCJ that the agreement was entered into as a result of fraud, deception, duress, mutual mistake, or unilateral mistake caused by an opposing party’s fault. As none of these conditions exist in the case sub judice, the WCJ decision was reinstated.

Factual Background 

The parties entered into a Compromise and Release Agreement (C&R), which was approved in a 2014 WCJ decision. An amended 2014 WCJ order specified that Employer was to continue to pay medical expenses associated with Claimant’s work injury until it funded a Workers’ Compensation Medicare Set Aside Arrangement (MSA) approved by the Center for Medicare & Medicaid Services (CMS).

In 2018, Employer filed a Petition to Seek Approval of a C&R, a Petition to Review Medical Treatment and/or Billing and a Petition to Review Compensation Benefits.

The gist the three petitions was that Claimant entered into a C&R wherein he agreed not only to a lump sum settlement but also to the potential establishment and funding of an MSA.  Claimant agreed to timely complete all paperwork necessary for Employer to apply for and secure an MSA or Allocation. Thereafter, when Employer obtained a set-aside approved by CMS, Claimant refused to follow through with executing the paperwork necessary to secure the MSA.

WCJ Decision

The WCJ found Claimant testimony was credible that he knowingly and voluntarily agreed that if Employer obtained approval of an MSA and properly funded it, Claimant’s medical benefits would end.

Summary of the WCJ findings of fact reflect -

Claimant agreed to cooperate with Employer’s efforts to obtain an MSA. Under the C&R, Employer’s only obligation [if it chose to exercise it], was to obtain approval of an MSA and fund the same. There was no provision that Employer needed to pay for anything other than the MSA. Employer’s evidence demonstrated that it submitted an MSA to CMS, the MSA was approved, the paperwork was forwarded to Claimant and Claimant’s refused to sign the paperwork because the MSA did not include all of Claimant’s ongoing work-related medical treatment - including medical marijuana.

Employer resubmitted the MSA proposal to CMS, which again approved it with a “notation that medical marijuana is not covered by Medicare and is thus not considered part of an MSA". WCJ found the Employer’s obligation was solely to obtain an MSA and fund it, “not to obtain an MSA and cover other services not covered by Medicare.”  The evidence clearly shows that Claimant failed to cooperate by signing the documents needed to finalize the MSA. Employer could not obtain final approval of the MSA.

The WCJ noted Claimant’s position -  he wants to be reimbursed for his past usage of medical marijuana and he does not want to agree to the MSA unless there is some provision for the funding of his future use of medical marijuana.

The WCJ concluded that Claimant was attempting to re-write the C&R to include payment for non-Medicare covered services as part of Employer’s obligation. However, Claimant has shown no basis for a re-writing of a contract. The WCJ concluded as a matter of law that (claimant's request) is not part of the legal obligation that the parties contractually agreed to in the C&R.

The WCJ decision stated that, if Employer wished to end its obligation for Claimant’s medical benefit payments, it was to obtain a new MSA structured settlement quote and forward the paperwork to Claimant for signing. 

If Claimant signs the MSA paperwork, Employer and its Insurer are relieved of all future liability of medical expenses related to the work injury.  If Claimant does not sign the MSA paperwork, then Employer may send Claimant a check for the value of the MSA and its obligation to pay for work-related medical expenses shall end.

Claimant Appeal to WCAB

The WCAB agreed with Claimant that the WCJ has no authority to require Claimant to execute the MSA documents. Citing Stroehmann Bakeries v. Workers’ Compensation Appeal Board (Plouse), 768 A.2d 1193 (Pa. Cmwlth. 2001). The Board determined that a C&R is enforceable only where there has been a “meeting of the minds” on all of its terms.

WCAB reasoned - circumstances have changed and medical use of marijuana is now approved in Pennsylvania. Claimant contends that medical marijuana is a reasonable treatment for his work injury. Employer disagrees. Accordingly, there is no meeting of the minds. The C&R provision requiring Claimant execute documents for the approval of the MSA and final settlement of his claim for medical benefits - is not enforceable.

Commonwealth Court Appeal of Employer

The Commonwealth Court analysis began with a review of section 449 regarding approval of a C&R agreement -

The workers’ compensation judge shall not approve any C&R unless he first determines that the claimant understands the full legal significance of the agreement. The agreement must be explicit with regard to the payment, if any, of reasonable, necessary and related medical expenses.

The Court reviewed the C&R terms - Claimant’s wage loss benefits were settled for a lump sum payment;  the C&R did not resolve Claimant’s medical benefits but, instead, provided Employer with the option of funding an MSA or continuing to pay the medical bills related to Claimant’s work injury.

The C&R specifically stated Employer shall continue to remain liable for payment of all reasonable and necessary medical expenses related to Claimant’s work injury through CMS approval of an MSA and Employer’s funding of the same. Claimant agrees to timely complete all paperwork necessary for Employer and its Insurer/Third-Party Administrator to apply for and secure an MSA or Allocation. (emphasis in original).

The Court emphasizeded the C&R was approved by a WCJ, who confirmed via Claimant’s testimony that Claimant understood its terms. Although the medical aspect of Claimant’s workers’ compensation claim was left open at the time, the language clearly demonstrated that the parties agreed that Employer could submit an MSA for CMS approval at a later date. If the MSA was approved by CMS, and Employer chose to fund it, Employer would be absolved of further responsibility for Claimant’s medical bills. As part of this agreement, Claimant agreed to cooperate by preparing all necessary paperwork for Employer to submit the MSA proposal.

Now, Claimant refuses to cooperate as he had promised in the C&R because the MSA and/or Employer will not pay for his use of medical marijuana, which became legal in Pennsylvania approximately two years after the C&R became effective. Claimant relied upon Stroehmann to suggest there is no meeting of the minds and a new C&R was required to relieve Employer of its responsibility for Claimant’s medical expenses.

The Court rejected Claimant’s assertion that Stroehmann requires the C&R to reflect a “meeting of the minds”, noting - nowhere in Stroehmann is the expression “meeting of the minds” used. The focus of Stroehmann was on bringing final resolution to workers’ compensation claims in a way that had not been available to parties in workers’ compensation litigation prior to 1996.

The Court explained that a WCJ’s evaluation of a C&R is primarily focused upon the claimant’s understanding of the terms of the agreement. The fact that the parties have agreed upon a resolution of the claim seems indicative of a meeting of the minds.

Once a C&R has been approved, a claimant cannot ask a workers’ compensation judge to negate it, based on the contention that there was no such meeting of the minds. After approval, the only means for a party to negate the C&R is to convince the workers’ compensation judge that the agreement was entered into as a result of fraud, deception, duress, mutual mistake, or unilateral mistake caused by an opposing party’s fault.     None of these conditions exist in the matter sub judice.

To the extent any of these reasons could even remotely apply to the present case, only mistake might come at all close. Having said as much, we stress that we do not equate a change in law, after the C&R’s approval, with a "mistake" at the time the C&R was negotiated and approved by the WCJ.

At the time the parties entered into their C&R, and it was approved, there was apparent agreement on its terms. The only notable change is that medical marijuana became available in Pennsylvania.

However, given that (1) medical marijuana was neither contemplated nor legal in Pennsylvania when the C&R was approved, (2) Claimant never appealed approval of the C&R, (3) Claimant accepted $155,000 to resolve the indemnity portion of his claim, (4) Claimant agreed to cooperate in Employer’s efforts to secure an MSA, (5) it was up to Employer’s sole discretion whether to fund the MSA, and (6) CMS will not fund medical marijuana, despite changes in State law -  The Court cannot agree with Claimant that a new C&R is required for Employer to exercise its option to resolve the medical portion of Claimant’s workers’ compensation claim.

The Court referenced the Pennsylvania Superior Court’s opinion in Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943 (Pa. Super. 2004). regarding a trial court’s enforcement of a settlement agreement. The Felix Court stated that “settlement agreements are enforced according to principles of contract law. Courts will enforce a settlement agreement if all its material terms are agreed upon [sic]. A settlement agreement will not be set aside absent a clear showing of fraud, duress or mutual mistake.” Felix, 848 A.2d at 947 The Superior Court added that “it is well settled that a party assumes the risk of his or her own inability to perform contractual duties.” 

The Commonwealth Court reasoned – that in the instant matter - we are not faced with a party’s inability to perform contractually agreed upon duties. We are presented with something more substantial - an unwillingness to perform.

Thus, as per the Superior Court in Felix and in light of the inability of the WCJ to require Claimant to sign the MSA paperwork, we see no error in the WCJ’s decision to enforce the settlement agreement rather than set it aside. The remedy imposed by the WCJ, i.e., requiring Employer to obtain a new quote for the MSA from CMS and giving Claimant two weeks to review and sign the paperwork, followed by the opportunity for Employer to send Claimant a check for the value of the MSA should Claimant choose not to cooperate, is reasonable.

The Court noted - Employer is correct that the Board’s standard would open a Pandora’s box that could potentially unravel countless C&Rs - based on the contention that there was no “meeting of the minds” at the time the agreements were approved. This, in turn, would defeat the true meaning of Stroehmann - which was to underscore the value of bringing permanent resolution to workers’ compensation claims by encouraging settlements and stressing finality.

PRACTICE POINTERS

1. Negotiate and itemize specific settlement terms regarding wage loss medical expense and all other type of payment due at the time of settlement and at any future point. 
2. Draft specific settlement terms regarding the obligations of each party, particularly regarding future medical expense liability. Consider options and alternatives that are available to each party.
3. Present testimony before the WCJ of the claimant's understanding of: specific settlement terms; payments due; future benefit rights; future obligations. 

PA Work Comp total disability benefit status reinstatement, after unconstitutional IRE, is the date of filing of the Petition to Reinstate

In a series of Memorandum Opinions issued throughout 2021, the Pennsylvania Commonwealth Court has consistently held that a Claimant is entitled to reinstatement of  total disability benefit status, as of the filing date of the Claimant Petition to Reinstate, where the change in benefit status was based upon an unconstitutional IRE.

Marcellini v. WCAB (Brighthouse Life Insurance Company and Travelers Indemnity Company) No. 1014 C.D. 2020; Memorandum Opinion filed September 13, 2021

In Marcellini the Commonwealth Court dismissed Claimant arguments that (1) the White decision and its progeny are erroneous regarding the correct date for reinstatement and (2) the claimant has a “vested right” to workers’ compensation benefits.

Procedural Background

Claimant appealed the WCAB decision that reinstated her total disability benefits as of July 18, 2017, the date she filed her petition for reinstatement. (After the 1^st WCJ decision there was a remand to WCJ, to consider the effects of the Whitfield decision and Act 111 enactment. The WCJ decision was unchanged.) The WCAB affirmed the WCJ decision. On appeal, Claimant argued the WCAB erred, as properly she was entitled to reinstatement as of March 19, 2009 - the date her status was modified from total to partial on the basis of an unconstitutional impairment rating evaluation (IRE).

In affirming the WCAB decision, The Commonwealth Court relied upon a recent decision in Whitfield. That opinion held a claimant, who showed that her work-related disability continued, was entitled to reinstatement of her total disability status, as of the date she filed her reinstatement petition.

The Whitfield Court reasoned - Simply because Protz is being applied to a case that arose from a work injury and a change in disability status that predates it does not mean it operates retroactively…. This (Protz) decision does not alter the claimant’s past status. Rather, it gives effect to the claimant’s status as it existed at the time she filed her reinstatement petition. Citing: Whitfield, 188 A.3d at 617.

The Commonwealth Court compared the date of reinstatement ordered in Dana Holding Corporation v. Workers’ Compensation Appeal Board (Smuck) (Pa. Cmwlth. 2018), aff’d, 232 A.3d 629 (Pa. 2020), to that ordered in Whitfield. In Dana Holding, claimant had appealed the modification of compensation based upon an IRE, and that appeal was pending when Protz was decided.

In the Dana Holding situation, the Court held that the claimant was entitled to reinstatement as of the date of the IRE. By contrast, in Whitfield, claimant did not appeal the modification but, rather, filed a reinstatement petition following the Protz decision. Because the claimant in White had not appealed the initial modification, this Court held that she was entitled to reinstatement as of the date of her petition, not the date of the change in her disability status from total to partial. See White, 237 A.3d at 1231 (explaining the different paradigms of Dana Holding and Whitfield).

In the instant case,  Claimant did not challenge the validity of her 2009 IRE until after Protz was decided in 2017. On this basis, the Board properly reinstated her total disability status as of the date she filed her petitions. Citing: White, supra.

Claimant argued she has a vested right in workers’ compensation benefits. She argued she was deprived of a vested right to total disability compensation by an unconstitutional procedure. This requires the 2009 modification of her disability status to be set aside. However, as noted by the Court in Perillo v. Workers’ Compensation Appeal Board (Extended Healthcare Services, Inc.) (Pa. Cmwlth., a claimant does not have a vested right in workers’ compensation benefits and, thus, there is no entitlement to reinstatement of total disability benefits effective as of the date of the prior invalid IRE.

The Court explained that the Pennsylvania Supreme Court has limited the scope of the protection to vested rights: “It must be something more than a mere expectation, based on an anticipated continuance of existing law. It must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from a demand made by another.” Perillo, slip op. at 5, n.10.

Because workers’ compensation benefits can be changed at any time, “there are no vested rights in workers’ compensation benefits.” Perillo, slip op. at 4. In the instant case, the Court reject Claimant’s premise that she had a vested right to total disability compensation.

PRACTICE POINTERS

1. Continue to pursue the Impairment Rating Evaluation (IRE) as a remedy to limit the duration of total disability benefit payment. After the injured worker receives 104 weeks of total disability benefits, file an IRE request for designation of an expert to conduct an evaluation.

2. As the IRE physician is limited to address only issues of MMI status and the degree of impairment – if you wish to contest the extent or duration of work-related disability – an Independent Medical Examination (IME) is the remedy to pursue.

 

PA Bureau of Work Comp Fee Review Hearing Office may determine – who is a “medical provider” with standing to pursue a fee review remedy.

Fee Review provides a forum to medical providers to contest the amount or timeliness of the payments received from an employer or insurer. In 2019, The Commonwealth Court issued a decision, allowing jurisdiction to the Hearing Office to address the issue of whether an entity was a provider. The definition of “who is a provider” continues to be disputed.

See: Harburg Medical Sales Co. v. PMA Management Corp. (Bureau of Workers’ Compensation, Fee Review Hearing Office), No. 635 C.D. 2020; August 30, 2021

Harburg Medical Sales Co., appealed two adjudications of the Bureau of Workers’ Compensation, Fee Review Hearing Office, that denied Harburg’s requests for de novo hearings to contest the Bureau’s administrative denial of fee review applications on the ground that Harburg was not a provider within the meaning of Section 109 of the Workers’ Compensation Act and, therefore, lacked standing to invoke the fee review process.

Factual Background

A worker sustained an injury in the course of his employment . After he developed chronic pain, his doctor sent orders for certain pain treatment modalities to Harburg. Upon receiving the orders, Harburg communicated with various distributors (never identified, except—at one point—as Amazon, in these proceedings), advanced payment for the items, and directed them to be delivered to Maximo’s residence via UPS or FedEx. Thereafter, Harburg billed PMA Management Corporation.

Following a dispute between Harburg and PMA as to the amount properly payable for the items, Harburg filed fee review applications with the Bureau.

Upon the Bureau’s denial of the applications, Harburg sought further review by requesting de novo hearings.  PMA moved to dismiss the applications on the grounds that Harburg was not a provider and that the Hearing Office lacked jurisdiction to address the issue of whether an entity was a provider. The Hearing Office denied the motion to dismiss based on the then-controlling case law. The Hearing Office relied on Selective Insurance Co. of America v. Bureau of Workers’ Compensation Fee Review Hearing Office (The Physical Therapy Institute), 86 A.3d 300 (Pa. Cmwlth. 2014), which the Commonwealth Court subsequently overruled.

Subsequently, the Commonwealth Court issued two decisions impacting the instant case. In Armour Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (Wegman’s Food Markets, Inc.), 206 A.3d 660, 671 (Pa. Cmwlth. 2019) (en banc) (Armour I),  the Court held that the Hearing Office had jurisdiction to determine whether a supplier was a provider.

Thereafter,  the Commonwealth Court directed the Hearing Office in a related series of cases to adjudicate the threshold issue of whether Harburg was a provider. See: PMA Mgmt. Corp. v. Bureau of Workers’ Comp. Fee Rev. Hearing Off. (Harburg Med. Sales, Co., Inc.) (Pa. Cmwlth., No. 1757 C.D. 2017, filed Apr. 12, 2019).  Pursuant to that directive, Hearing Officer David Torrey conducted a hearing and concluded that Harburg was not a provider. Harburg filed this appeal.

Decision and Reasoning of the Court

In determining that Harburg does not meet the definition of provider, the Commonwealth Court noted that Harburg is neither licensed nor authorized by the Commonwealth to provide health care services.

Additionally, there are no government agencies specifically authorizing Harburg to distribute medical supplies, no state or federal quality standards for suppliers of such items, and no continuing education requirements for operating a medical supply company. Review of the facts do not warrant a legal determination that Harburg is an agent of a licensed health care provider.

The Court rejected Harburg’s argument that the Hearing Officer’s decision violated Harburg’s due process rights by depriving it of a forum to contest the amount or timeliness of the payments received from the employer or the insurer.

Even though Harburg may have rendered convenient services or assisted injured workers to obtain equipment or supplies that were part of his or her treatment plan, the pertinent legislation does not dictate that any person or entity which does so be afforded an opportunity to invoke the fee review process.

Pursuant to the clear language of Section 306(f.1)(5) of the Act, only providers have standing to do so. If the General Assembly wishes to expand the definition of provider in legislation pertaining to medical cost containment and the fee review process, then it needs to enact appropriate laws.

The Court concluded that Harburg was not deprived of its due process rights. In Armour I, the Commonwealth Court held that “it offended due process . . . as well as the Act’s careful scheme for resolving fee disputes to place the question of whether a putative provider is actually a ‘provider’ beyond the reach of judicial review.” Armour I, 206 A.3d 670. The Court determined that the Hearing Office has jurisdiction to determine whether a supplier is a provider.

In the instant case, Harburg was given a full hearing on this issue and afforded due process; it simply did not agree with either the result or the consequences necessarily following therefrom—its inability to invoke the fee review process. Determining the legal status of Harburg ends our inquiry. As Hearing Officer Torrey concluded: “It may well be that some medical supply houses are, somehow, providers under the Act, and have standing to file Requests in this forum. However, on the evidence presented in this case, Harburg is not one of them.”

PRACTICE POINTERS:

Carefully review medical billing statements. Is the statement from the medical provider or from another entity? If not a provider, the employer/insurer may seek dismissal of the review request.

2.      Fee Review provides a forum to medical providers to contest the amount or timeliness of the payments received from an employer or insurer.

3.      Utilization Review provides a forum to employers, insurers and claimants to request prospective, concurrent or retrospective review of the reasonableness or necessity of medical treatment expense.

4.      The Employer and Insurer have additional remedies to contest medical expenses. A Petition to Review may challenge the causal relationship of a medical expense and the work injury. A medical expense may be denied outright – but a WCJ may ultimately determine the denial was unreasonable and assess counsel fees.

5.      When reviewing medical expenses, consider your options. What is the focus of your dispute ? Is it the expense amount, the frequency of care or type of care? Discuss your remedies with your work comp counsel.