Opinion
No. 2127 C.D. 2011 No. 2147 C.D. 2011
06-05-2012
Michelle Lash, Petitioner v. Workers' Compensation Appeal Board (Jay Foulkroad & Son, Inc.), Respondent Jay Foulkroad & Son, Inc. and Zurich Insurance Company, Petitioners v. Workers' Compensation Appeal Board (Lash), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Michelle Lash (Claimant) and Jay Foulkroad & Son, Inc. and Zurich Insurance Company (collectively, Employer) cross-appeal from the October 18, 2011, order of the Workers' Compensation Appeal Board (WCAB), which affirmed as being "evenly divided" the March 31, 2010, order of a workers' compensation judge (WCJ) granting in part and denying in part Employer's petition to review medical treatment (review medical petition) and Claimant's review medical petition, granting one of Claimant's petitions for review of utilization review determination (UR petition), and granting in part Claimant's petition for penalties. Despite characterizing itself as "evenly divided," the WCAB reasoned that it would, in its entirety, remand to the WCJ for findings of fact on the issue of compensable mileage reimbursement. We therefore quash the cross-appeals.
This case has a long and tortuous history that we need not recount in great detail. Suffice it to say that, on July 28, 1993, Claimant sustained a work-related injury leading to her diagnosis of reflex sympathetic dystrophy. In 2009, Claimant and Employer filed with the WCJ the various petitions at issue here. In particular, Employer filed a review medical petition asserting that treatment provided by Michael Hayes, Ph.D. and Attendant Care Services was not causally related to the Claimant's July 28, 1993, work injury. Claimant filed a review medical petition alleging that Employer had failed to pay certain of her medical expenses, including subrogation claims, attendant care, mileage, and pharmaceuticals, and she also filed a penalty petition. Claimant further filed a UR petition, seeking that Employer pay as reasonable and necessary the Ketamine and Mannitol treatments prescribed by Robert J. Schwartzman, M.D. (WCJ's Findings of Fact, Nos. 3, 5-7.)
Ketamine is a general anesthetic, (see WCJ's Findings of Fact, No. 88), and Mannitol is a type of diuretic, (see WCJ's Findings of Fact, No. 90).
After considering the evidence, which included, inter alia, Claimant's testimony, doctors' deposition testimony, medical reports, caregiver affidavits, a check for mileage reimbursement, a mileage reimbursement report and utilization review determinations, the WCJ granted in part and denied in part Employer's and Claimant's review medical petitions. Specifically, the WCJ ordered Employer to "pay past-due charges for Massage Therapy, Attendant Care, and related mileage," (WCJ's Order, 3/31/10, ¶ 1), and to "reimburse [DPW] for its expenditures," (id.), but also stated that, "in [the] future, [Employer] shall have no liability for payment of Massage Therapy, Attendant Care, or mileage expense related to these treatments." (Id.) The WCJ explained that Employer was obligated to pay these expenses "prior to the date of this Decision." (WCJ's Conclusions of Law, No. 19.) The WCJ also granted Claimant's UR petition, ordering Employer to pay for Claimant's Ketamine and Mannitol treatments, and granted in part Claimant's penalty petition, ordering Employer to pay a twenty-percent penalty on Claimant's past-due benefits. The WCJ further ordered Employer to continue paying for Claimant's psychological counseling services, including the services of Dr. Hayes, and ordered Employer to reimburse DPW for its payment of these services. (WCJ's Order, 3/31/10, ¶¶ 3, 5-7.)
The WCJ denied another UR petition not at issue here.
Both parties appealed to the WCAB, which issued the following order:
The Workers' Compensation Appeal Board, being evenly divided, the Decision and Order of the Workers' Compensation Judge is hereby AFFIRMED.(WCAB's Order, 10/18/11, at 1.)
Commissioner McDermott files an Opinion in support of Affirmance in Part, and Remand in which Commissioners Crawford and Frioni join.
Commissioner Wilderman files an Opinion in support of Reversal in Part and Remand, in which Commissioners McIntyre and Krebs join.
The WCAB's "Opinion in Support of Affirmance in Part and Remand of the March 31, 2010 Decision and Order" agreed with the WCJ's reasoning that Employer was obligated to pay DPW's subrogation claims, as well as Claimant's attendant care, massage therapy and mileage expenses through March 31, 2010, but that Employer did not have future responsibility for these expenses. (WCAB's Opinion in Support of Affirmance in Part and Remand (WCAB's Affirm/Remand Op.) at 11.) The WCAB's "Opinion in Support of Reversal in Part and the Remand of the March 31, 2010 Decision and Order" would have reversed the WCJ's termination of Employer's ongoing obligation to pay these expenses. (WCAB's Opinion in Support of Reversal in Part and Remand (WCAB's Reverse/Remand Op.) at 7-8.) However, all of the Commissioners agreed that the WCJ should have made discrete findings of fact regarding the amount of mileage expenses that Employer owed to Claimant. (See WCAB's Affirm/Remand Op. at 12 n.6; see also WCAB's Reverse/Remand Op. at 9-10.)
Both parties appealed to this court from the WCAB's October 18, 2011, order. On appeal, Claimant argues that we should reverse the WCAB's order to the extent that it relieves Employer of any future responsibility for paying the costs of her attendant care and massage therapy. She also asserts that we should remand this case to the WCJ for findings of fact regarding Employer's proper mileage reimbursement of Claimant. For its part, Employer contends that we should reverse the WCAB's order to the extent that it upholds the WCJ's determination that Employer is required to pay Claimant's expenses beyond the date Employer filed its review medical petition. Given the procedural posture of this case, we quash the cross-appeals.
We explained in City of Philadelphia v. Workers' Compensation Appeal Board (Mellon), 885 A.2d 640, 642 (Pa. Cmwlth. 2005) (footnote omitted):
Pursuant to Section 763(a)(1) of the Judicial Code, 42 Pa.C.S. §763(a)(1), this court has jurisdiction over appeals from final orders of government agencies. A final order is one that disposes of all claims or parties, or is defined as such by order or statute. Pa. R.A.P. 341(b); Compservices, Inc. v. Workers' Comp. Appeal Bd. (Hoffmaster-Bellini), 836 A.2d 170 (Pa.Cmwlth.2003). A court order remanding a case to the local agency for further hearings is generally interlocutory and not a final order. Domagalski v. Szilli, 812 A.2d 747 (Pa.Cmwlth.2002). Thus, because the [WCAB's] order does not dispose of all claims or parties and is not one defined as final by order or statute, it is not a final order.
Although appeals are generally only permitted from final orders, in limited circumstances, a party can take an interlocutory appeal. Kramer v. Zoning Hearing Bd. of Upper Saucon Twp., 163 Pa. Commw. 559, 641 A.2d 685 (1994). An interlocutory appeal may be taken when a government unit, such as the [WCAB], remands to the administrative agency "for execution of the adjudication of the reviewing tribunal in a manner that does not require the exercise of administrative discretion." Pa. R.A.P. 311(f)(1). If a local agency must engage in fact-finding to determine an award calculation, administrative discretion is involved, the order is not final and, thus, the appellate court must quash the appeal. P.R. Hoffman Materials v. Workmen's Comp. Appeal Bd. (Zeigler), 694 A.2d 358 (Pa.Cmwlth.1997).
Here, the WCAB's order did not dispose of all of the parties' claims because the Commissioners unanimously agreed that the case should be remanded to the WCJ for findings of fact on the issue of Claimant's mileage reimbursement. The Commissioners reasoned that there was "conflicting evidence and the need for further elucidation" on this issue, (WCAB's Affirm/Remand Op. at 12 n.6), and that "there was conflicting evidence as to exactly what the mileage expenses were and whether they had been paid," (WCAB's Reverse/Remand Op. at 10). Thus, because the WCJ's resolution of this matter requires the use of administrative discretion and not a mere computation, the cross-appeals do not meet the requirements of Pennsylvania Rule of Appellate Procedure 311(f)(1) and are not proper interlocutory appeals. See Mellon, 885 A.2d at 643.
In this respect, the Commissioners who supported affirming the WCJ's decision in part and remanding it in part stated:
The WCJ determined that [Employer] was ordered, and failed, to pay for Massage Therapy, Attendant Care and "related mileage expenses." He did not make a specific dispositive finding on Claimant's evidence or on [Employer's] Exhibits 07 and 08, indicating it has issued checks for mileage reimbursement of $2835.45 and $1716.26. Because of the apparently conflicting evidence and the need for further elucidation . . . we would ask the WCJ to render a determination on this issue which is consistent with the requirements of Section 422(a) [of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended], 77 P.S. §834 [relating to a reasoned decision].
Accordingly, because the WCAB's order is neither final nor an appealable administrative remand, we quash Claimant's and Employer's cross-appeals. See id.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 5th day of June, 2012, the cross-appeals from the order of the Workers' Compensation Appeal Board, dated October 18, 2011, are hereby quashed.
Jurisdiction relinquished.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
(WCAB's Affirm/Remand Op. at 12 n.6.) Moreover, the Commissioners who supported reversing the WCJ's decision in part and remanding it in part stated: [T]here was conflicting evidence as to exactly what the mileage expenses were and whether they had been paid, as Claimant had introduced a document outlining almost ten years of mileage records, and [Employer] introduced evidence it had paid Claimant reimbursement for 4,767 miles of travel. Because the Judge never made credibility determinations in terms of this conflicting evidence, or made any conclusive findings as to what the exact amount of mileage expenses [Employer] owed, his Decision was not reasoned and failed to resolve a necessary issue raised by the parties. Therefore, we would remand for the Judge to make findings as to what the exact amount of mileage expenses Claimant incurred between 12/6/02 and the date of the current Decision. (WCAB's Reverse/Remand Op. at 9-10.)