What’s Hot in Workers’ Comp, Vol. 27, No. 12, December 2023

TOP 10 DEVELOPMENTS IN PENNSYLVANIA WORKERS’ COMPENSATION IN 2023

By
Francis X. Wickersham

1.    An application for Fee Review is not premature on the basis that treatment is not related to the work injury where a Utilization Review Request has not been filed.
UPMC Benefit Mgmt. Servs., Inc. v. United Pharmacy Servs. (Bureau of Workers’ Comp. Fee Rev. Hearing Off.), 287 A.3d 474 (Pa. Cmwlth. 2022)

The claimant sustained a work injury to her lower back, which was accepted by a medical-only Notice of Compensation Payable. The employer denied payment of a prescribed cream on the basis that the treatment was not related to the injury. The pharmacy filed three applications for Fee Review, and the Fee Review Office denied each on the basis that the issue of causation to the work injury remained outstanding. The pharmacy requested a hearing and argued that the applications were not premature because the injury was accepted by the employer, no party petitioned for Utilization Review and the 30-day period to remit payment lapsed. The Hearing Office concluded that the causation defense was a challenge to the reasonableness and necessity of treatment, which should have been reviewed during the UR process. The Commonwealth Court affirmed this ruling, holding that the employer was obligated to dispute liability through the UR process to render the Fee Review applications premature. A dissenting opinion pointed out that the UR process was not intended to address causation-based challenges and the Fee Review applications were properly dismissed as premature. 

2.    An employer cannot take a credit for an overpayment of workers’ compensation benefits paid for one work injury against an award of benefits for a subsequent work injury.
Columbia Cnty. Commissioners v. Rospendowski, 286 A.3d 436 (Pa. Cmwlth. 2022)

Following a work injury, the claimant returned to work without a wage loss, and her benefits were suspended. However, the employer discovered the claimant had received an overpayment in wage loss benefits for her injury of over $10,000. The claimant suffered a second work-related injury eight years later, and the employer stated it would accept the injury as a medical injury only in order to recover the outstanding overpayment from the earlier injury. The court held that the employer was not entitled to the requested credit against the wage loss benefits for the later injury for the overpayment made relative to the earlier injury. 

3.    Commonwealth Court of Pennsylvania holds that injured workers may be reimbursed for medical cannabis used for treatment of a work injury.
Fegley v. Firestone Tire & Rubber, 291 A.3d 940 (Pa. Cmwlth. 2023)

The claimant was using medical marijuana to help with her chronic back pain for a work-related low back injury she sustained in 1997. A Utilization Review determination found that the medical marijuana was reasonable and necessary, and the claimant filed a penalty petition after not receiving reimbursement. The Commonwealth Court held that reimbursement of a claimant’s out-of-pocket expenses for medical marijuana usage to treat a work injury is required by the Act. The court also rejected the employer’s argument that Section 2102 of the Medical Marijuana Act (MMA) prevented them from paying for the injured workers’ medical marijuana. Section 2103 of the MMA specifies, “Nothing in the MMA shall require an employer to commit any act that would put the employer and any person acting on its behalf in violation of Federal law.” 

4.    Commonwealth Court of Pennsylvania again finds that an injured worker can be reimbursed for medical cannabis used for treatment of a work injury.
Appel v. GWC Warranty Corp., 291 A.3d 927, 929 (Pa. Cmwlth. 2023)

The claimant had sustained a lower back injury at work and underwent two surgeries. He used medical marijuana for his pain and sought reimbursement for his medical marijuana. The Workers’ Compensation Judge concluded that reimbursement was not required under Section 2102 of the Medical Marijuana Act (MMA), and the Appeal Board affirmed. The claimant argued that, although the MMA did not require coverage, it did not prohibit it either. The Commonwealth Court agreed and held that reimbursement for the claimant’s medical marijuana usage was required by the Act. The court again rejected an employer’s argument that they were prevented by Section 2102 of the MMA from paying for the injured workers’ medical marijuana. Section 2103 of the MMA specifies, “Nothing in the MMA shall require an employer to commit any act that would put the employer and any person acting on its behalf in violation of Federal law.”

5.    Supreme Court holds that the exclusivity provision of the Pennsylvania Workers’ Compensation Act precludes an employee bitten by a dog at work from filing a lawsuit against the employer for negligent acts and omissions. 
Franczyk v. Home Depot, Inc., 292 A.3d 852 (Pa. 2023)

The plaintiff was bit by a customer’s dog while working. The defendant allowed the dogs’ owners to leave the store prior to providing identifying information. The plaintiff filed suit against the defendant, claiming there was a failure to sufficiently investigate the incident and negligence in allowing the dogs’ owners and witnesses to leave the premises without obtaining necessary information. The Pennsylvania Supreme Court found that the plain language of the Act precludes a defendant’s liability beyond that provided by the Act. The court found that requiring litigation to continue on this issue would result in absurdities that the Act is meant to prevent. The court also held that permitting the suit would create perverse incentives for employees when injuries caused by a third party occur on the job and would place employers in a position to be faced with lawsuits by employees if third-party information is not obtained. 

6.    Supreme Court holds that a claimant’s dram shop claim arose out of the maintenance or use of a motor vehicle; therefore, the employer was precluded from subrogating its payment of Heart & Lung Act benefits against claimant’s settlement of the claim. 
Alpini v. WCAB, 294 A.3d 307 (Pa. 2023)

In this case, the claimant sustained multiple work-related injuries when his car was struck by an intoxicated driver. The employer accepted liability for the injuries and paid Heart & Lung Act (H&L) benefits to the claimant, and the claimant signed over his workers’ compensation wage loss benefits to the employer. The Pennsylvania Supreme Court considered whether an employer that paid H&L benefits was entitled to subrogation for a claim in which the claimant was injured and asserted both motor vehicle negligence- and Dram Shop Act-based claims. Section 1720 of the Motor Vehicle Financial Responsibility Law (MVFRL) precludes an employer from subrogating its payment of H&L Act benefits against a claimant’s third-party recovery in an action arising out of the maintenance or use of a motor vehicle. The court held that, based on a clear and unambiguous interpretation of Section 1720 of the MVFRL, the claimant’s action arose out of the maintenance or use of a motor vehicle. Because the action originated from the motor vehicle collision, the employer was precluded from subrogating its payment of H&L Act benefits against the claimant’s third-party settlement of his Dram Shop Act claims with the tavern owners. 

7.    Commonwealth Court holds that an award of specific loss benefits to a claimant who dies prior to payment is not payable to the estate where the cause of death is from the work injury.
Steets v. Celebration Fireworks, Inc., 295 A.3d 312 (Pa. Cmwlth. 2023)

The claimant sustained work injuries resulting from an explosion and subsequently was awarded specific loss benefits for the loss of use of both arms, with payments to begin once total disability benefits ceased. The claimant later passed away due to complications from a work-related respiratory deficiency. The claimant’s estate filed Petitions Seeking Payment of the claimant’s specific loss benefits and penalties for failure to pay previously awarded benefits. The Commonwealth Court held that precedent has established that the specific loss benefits may be paid following the death of an employee if the death is from a cause other than a work injury. The court also held that because the claimant’s death was related to the work injury, the employer’s only obligation under the Act was to pay $7,000 in funeral expenses. 

8.    A Hearing Officer in a Fee Review case does not have statutory authority to remedy an overpayment of medical bills made to the provider by the insurer.
Philadelphia Surgery Ctr. v. Excalibur Ins. Mgmt. Servs., LLC, 289 A.3d 157 (Pa. Cmwlth. 2023)

The Fee Review Section found that the provider was due $14,393.83 for medical services rendered to the claimant. The Hearing Office concluded that the Fee Review Section failed to acknowledge a prior payment made by the insurer to the provider and directed the provider to reimburse the insurer $39,838.05 as an overpayment. The provider appealed, and the Commonwealth Court granted the appeal on the grounds that the Hearing Office did not have the statutory authority to impose the remedy of reimbursement for an overpayment of medical services. Although the Hearing Office had the authority under the Medical Cost Containment Regulations to determine whether there was an underpayment or overpayment, Section 306(f.1)(5) of the Act establishes that the sole focus of the Fee Review process is the amount and/or timeliness of the payment from the employer or insurer; therefore, the reimbursement ordered was not proper. 

9.    An employer does not admit liability for a work injury with a late answer to a Claim Petition where the injury is not well pled.
Alvin Hollis v. C&R Laundry Services, LLC (WCAB), 299 A.3d 1086 (Pa. Cmwlth. 2023)

The claimant suffered injuries as a result of an August 6, 2019, motor vehicle accident while he was driving for the employer. A Claim Petition was filed, and in it, the claimant pled injuries of “left rotator cuff pathology, cervical left-side radiculopathy, and cervical, thoracic and lumbar sprain/strains.” Although a late answer was filed and a Yellow Freight motion granted, the opinion of the employer’s medical expert, that the claimant’s left shoulder tendinosis was not related to the work injury, was accepted and it was found that the claimant was recovered from a sprain and strain of the shoulder. The Workers’ Compensation Judge found “left rotator cuff pathology” was not a well-pled fact, not a medical diagnosis, and not legally sufficient or definitive of the shoulder injury. The Commonwealth Court affirmed, agreeing that “left rotator cuff pathology” was not well-pled, and the claimant was, therefore, not entitled to a presumption of ongoing disability related to his shoulder under Yellow Freight. 

10.    A January 2018 email sent by claimant to employer about emergency foot surgery he had in November 2017 was not sufficient notice of a work injury under the notice provisions of the Act. 
The Hershey Company v. Shawn Woodhouse (WCAB), 300 A.3d 529 (Pa. Cmwlth. 2023)

In this case, the claimant had a pre-existing history of diabetic neuropathy. He developed a right diabetic foot ulcer in June 2017. In November 2017, emergency foot surgery was performed. In January 2018, the claimant sent an e-mail notification to the employer about the surgery. The claimant returned to work in March 2018, but in April 2018, a below-the-knee amputation of his right leg was performed. In December 2019, the claimant filed a Claim Petition for specific loss benefits, alleging his work duties aggravated a diabetic foot ulcer. The petition was granted, which the employer appealed to the Commonwealth Court, arguing that notice was untimely since it was not provided until the Claim Petition was filed in December 2019. The Commonwealth Court agreed and reversed the decisions of the Workers’ Compensation Judge and the Appeal Board. The court noted that when the claimant testified, he admitted that he suspected his amputation was related to his job duties in 2017. According to the court, under Section 311 of the Act, the claimant was required to provide notice of the injury within 120 days of the date of his foot surgery. The court also found the claimant’s January 2018 email about the surgery insufficient for constructive notice under Section 312 of the Act, since it did not specify the surgery was work-related and that his job duties aggravated his pre-existing condition. 

 

What’s Hot in Workers’ Comp, Vol. 27, No. 12, December 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.