Opinion
No. 1781 C.D. 2014
07-27-2015
Annette Reppert, Petitioner v. Workers' Compensation Appeal Board (Reading Materials, Inc.), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COVEY
Annette Reppert (Claimant) petitions this Court for review of the Workers' Compensation (WC) Appeal Board's (Board) September 5, 2014 order affirming the Workers' Compensation Judge's (WCJ) decision and order granting Claimant's Claim Petition, granting in part and denying in part Claimant's Petition to Review Compensation Benefits and Review Medical Treatment and/or Billing (Review Petition), and denying Claimant's Penalty Petition. Claimant presents two issues for this Court's review: (1) whether the Board erred in affirming the WCJ's finding that Reading Materials, Inc. (Employer) presented a reasonable contest; and (2) whether the Board erred in affirming the WCJ's denial of Claimant's Penalty Petition. After review, we affirm.
On October 21, 2008 Claimant sustained a work-related injury while employed with Employer. Employer issued a Notice of Compensation Payable (NCP) acknowledging the injuries as a right elbow dislocation and right radius and ulna fractures. Thereafter, Employer issued a corrected NCP acknowledging multiple upper extremity fractures. On June 1, 2011, Employer filed a Notification of Suspension (Notice) stating that Claimant's benefits were suspended effective June 14, 2011, when she returned to work without a wage loss. Claimant did not challenge the Notice.
On October 20, 2011, Claimant filed an initial claim petition alleging that she sustained additional work-related injuries on October 21, 2008. Also on October 20, 2011, Claimant filed a Penalty Petition alleging that Employer violated the WC Act (Act) by refusing to pay for her work-related medical treatment. That same day, Claimant filed the Review Petition alleging that Employer refused to pay for reasonable medical treatment, and that the corrected NCP contained an incorrect description of injury and average weekly wage (AWW). On March 29, 2012, Claimant filed the Claim Petition for specific loss of her right forearm. On June 5, 2012, Claimant filed a second Review Petition alleging an incorrect description of injury.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
The Petitions were consolidated, and WCJ hearings were held November 21, 2011, and February 22 and June 6, 2012. The parties stipulated that Claimant's description of injury should be amended to include a right forearm de-gloving injury; a right proximal ulna fracture; a right elbow dislocation; a stretch-type injury to the radial nerve; muscle damage; skin loss; right arm, shoulder and elbow skin contractures; a right elbow heterotrophic ossification; a cross union between the proximal radius and ulna; anxiety; and depression. The parties further stipulated to a corrected AWW. The WCJ granted Claimant's initial claim petition seeking to add the above-stipulated injuries. The WCJ also granted Claimant's Review Petition to correct Claimant's AWW, but denied the other relief sought therein. The WCJ granted Claimant's Claim Petition for specific loss of the right forearm. The WCJ denied Claimant's Penalty Petition. Claimant appealed to the Board. On September 5, 2014, the Board affirmed the WCJ's decision and order. Claimant appealed to this Court.
"On review[,] this Court must determine whether constitutional rights were violated, errors of law were committed, or necessary findings of fact were supported by substantial competent evidence." Stepp v. Workers' Comp. Appeal Bd. (FairPoint Commc'ns, Inc.), 99 A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).
Claimant first argues that the Board erred in upholding the WCJ's finding that Employer presented a reasonable contest. Specifically, Claimant contends that she was entitled to reasonable contest attorney's fees because Employer offered no testimony or other evidence to challenge her specific loss claim. We disagree.
Under Section 440(a) of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. § 996(a), a claimant who has prevailed in whole or in part in a contested case is entitled to an award of reasonable sum of attorney's fees, unless an employer had a reasonable basis for the contest. The reasonableness of the employer's contest depends upon whether the contest was prompted to resolve a genuinely[-]disputed issue or merely to harass the claimant. The employer has the burden of establishing the reasonableness of its contest. The reasonableness of the employer's contest is a question of law subject to plenary review by this Court.Kraeuter v. Workers' Comp. Appeal Bd. (Ajax Enters., Inc.), 82 A.3d 513, 521-22 (Pa. Cmwlth. 2013) (citations omitted; emphasis added).
"In determining whether a contest is reasonable, we must look to the totality of the circumstances." Grady v. Workers' Comp. Appeal Bd. (Lutz), 26 A.3d 1229, 1232 (Pa. Cmwlth. 2011) (citation omitted). "[T]here was no basis to find that Employer unnecessarily protracted the contest with a dispute that was not genuine or reasonable, nor did the WCJ make any such finding." Id. at 1233. Rather, the WCJ found as a fact that "Employer presented a reasonable contest at all times relevant hereto. The evidence presented by Employer, if found credible, supports its contest." WCJ Dec. at 13, Finding of Fact (FOF) 34 (emphasis added).
Claimant cites Jacobi v. Workers' Compensation Appeal Board (Wawa, Inc.), 942 A.2d 263 (Pa. Cmwlth. 2008) for the proposition that "[a] specific loss is either (1) the loss of a body part by amputation or (2) the permanent loss of use of an injured body part for all practical intents and purposes." Id. at 264 n.1 (emphasis added) (quoting Schemmer v. Workers' Comp. Appeal Bd. (U.S. Steel), 833 A.2d 276, 279 n.5 (Pa. Cmwlth. 2003)). However, the Jacobi Court specifically held:
The case law does not specify what evidence is required in order to prove a permanent loss of use for all practical intents and purposes. Nevertheless, it is clear that a claimant must present medical evidence in order to prove that his loss of use is permanent and for all practical intents and purposes.Id. at 269 (emphasis added). As Jacobi does not address what evidence is required to present a reasonable contest, it does not support Claimant's position.
Here, Claimant presented Jay S. Talsania, M.D. (Dr. Talsania) who testified that Claimant has a permanent loss of use of her right forearm for all intents and purposes. See Reproduced Record (R.R.) at 390a-391a. Employer's expert medical witness Richard J. Mandel, M.D. (Dr. Mandel) expressly opined in his May 17, 2012 report: "With regard to loss of use of the forearm, I disagree with Dr. Talsania. Consistent with my testimony, the loss of pronation and supination does present a significant impairment, but in my opinion, this does not rise to the level of loss of use." Supplemental Reproduced Record at 2a (emphasis added). Thus, Employer presented testimony disputing Claimant's medical evidence. Because there was substantial evidence to support the WCJ's finding that Employer presented a reasonable contest and that Claimant was not entitled to attorney's fees, the Board did not err.
Claimant next argues that the Board erred in denying Claimant's Penalty Petition. Claimant specifically contends that Employer violated the Act by unilaterally stopping Claimant's home care service payments. We disagree.
Section 435(d) of the Act provides, in relevant part:
The department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties as provided herein for violations of the provisions of this act or such rules and regulations or rules of procedure:77 P.S. § 991(d). "The assessment of penalties, and the amount of penalties imposed are matters within the WCJ's discretion." Gumm v. Workers' Comp. Appeal Bd. (Steel), 942 A.2d 222, 232 (Pa. Cmwlth. 2008). "However, 'a violation of the Act or its regulations must appear in the record for a penalty to be appropriate.'" Id. (emphasis added) (quoting Shuster v. Workers' Comp. Appeal Bd. (Pa. Human Relations Comm'n), 745 A.2d 1282, 1288 (Pa. Cmwlth. 2000)). "No penalty may be imposed under [Section 435] [of the Act] absent proof of a violation of the Act or the rules of the department or board." Id. (quoting Spangler v. Workmen's Comp. Appeal Bd. (Ford), 602 A.2d 446, 448 (Pa. Cmwlth. 1992)). "Further, a claimant who files a penalty petition bears the burden of proving a violation of the Act occurred. If the claimant meets his or her initial burden of proving a violation, the burden then shifts to the employer to prove it did not violate the Act." Id. (citation omitted).
(i) Employers and insurers may be penalized a sum not exceeding ten per centum of the amount awarded and interest accrued and payable: Provided, however, That such penalty may be increased to fifty per centum in cases of unreasonable or excessive delays. Such penalty shall be payable to the same persons to whom the compensation is payable.
Section 306(f.1)(1)(i) of the Act sets forth the type of medical treatment an employer must pay for, and provides in relevant part:
The employer shall provide payment in accordance with this section for reasonable surgical and medical services , services rendered by physicians or other health care providers , including an additional opinion when invasive surgery may be necessary, medicines and supplies, as and when needed. . . .
77 P.S. § 531(1)(i) (emphasis added). A 'health care provider' is defined in Section 109 of the Act FN5 as:
[A]ny person , corporation, facility or institution licensed or otherwise authorized by the Commonwealth to provide health care services , including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employe or agent of such person acting in the course and scope of employment or agency related to health care services.
77 P.S. § 29 (emphasis added).
Boleratz v. Workers' Comp. Appeal Bd. (Airgas, Inc.), 932 A.2d 1014, 1017 (Pa. Cmwlth. 2007) (bold emphasis added).FN5. Section 109 of the Act was added by Section 3 of the Act of July 2, 1993, P.L. 190 (commonly known as Act 44), as amended, 77 P.S. § 29.
Added by Section 3 of the Act of February 8, 1972, P.L. 25. --------
Here, Comfort Keepers provided Claimant's home care services. In regard to Comfort Keepers' services, its CEO Dave Kendall (Kendall) testified:
We are a nonmedical home care company. And our whole mission is to keep people in their own homes and allow
them to have the highest degree of independence while maintaining quality of life, along with dignity. We like to treat them with the same level of respect that we would treat our own family members.R.R. at 256a-257a (emphasis added). The WCJ found that the Act does not require employers to provide WC benefits for the nonmedical home care services Kendall detailed. The WCJ explained:
And when you get to where the rubber hits the road, the kinds of things we do for our clients, which are primarily seniors, but we also do some long-term-care insurance work and we have done a small number of [WC] cases, so this is not entirely foreign to us, but we provide anything from re-engaging someone that might be isolated and depressed, to providing homemaker-type services.
And some examples of that would be things like preparing meals, light housekeeping, grocery shopping, getting folks to appointments that are unable to drive, just kind of keeping the home operating, laundry, linen changes, those types of things.
And then we also provide services of personal care. So we are helping people with what are known in our industry as ADLs or activities of daily living. And the classic examples of those are bathing, dressing, toileting, incontinent care, and transferring.
. . . .
So those are the kinds of things we do with respect to activities of daily living.
. . . .
So we are known as a nonmedical home care provider. And we employ caregivers that are trained to provide the services I just described. And we are a state-licensed facility.
Based on a review of the evidence as a whole, this Judge finds that Claimant failed to prove that Employer violated the Act. Claimant makes a valid argument that home and vehicle modifications to help with activities of daily living
are considered necessary orthopedic appliances (i.e. medical care) for purposes of the Act. However, [] Kendall testified that his employees performed a variety of tasks that this Judge does not believe are all in the same category as home and vehicle modifications. Certainly, self-care such as bathing and dressing might be similar but housecleaning and other such tasks are not in the same category. There are many injured workers who are unable to or have difficulty performing such tasks but the Act does not require the insurance carrier to pay for those services. Although [] Kendall was specifically asked about his anticipated bill for services that would have been rendered if services had not been terminated, there was never a designation as to the charge for the services that might arguably fall into the compensable category similar to home and vehicle modifications. Claimant failed to fully develop the evidence on this issue as well as whether certain tasks were necessary in the same way that home and vehicle modifications are necessary. This Judge finds that testimony merely that there was a prescription for Comfort Keeper services generally is not the same as providing evidence of the specific tasks that may have been necessary. Therefore, this Judge finds that Claimant failed to prove that Employer violated the Act. Furthermore, even if there is a technical violation, this Judge has the discretion to impose penalties and does not find that the situation is egregious enough to warrant a penalty.WCJ Dec. at 12, FOF 33. We discern no error in the WCJ's reasoning. Accordingly, the Board did not err in upholding the WCJ's denial of Claimant's Penalty Petition.
For all of the above reasons, the Board's order is affirmed.
/s/_________
ANNE E. COVEY, Judge
ORDER
AND NOW, this 27th day of July, 2015, the Workers' Compensation Appeal Board's September 5, 2014 order is affirmed.
/s/_________
ANNE E. COVEY, Judge