Opinion
No. 1227 C.D. 2012
02-13-2013
Sharen Rundle, Petitioner v. Workers' Compensation Appeal Board (Lawn Tech Inc.), Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Sharen Rundle (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying her penalty petition. In doing so, the Board affirmed the decision of a Workers' Compensation Judge (WCJ) that Claimant was not entitled to a new vehicle with an automatic transmission because her work injury made shifting gears painful. Further, the Board held that a vehicle's transmission is not a type of orthopedic device. We affirm.
On May 6, 2003, while shoveling stones for her job with Lawn Tech Inc. (Employer), which is a landscaping business, Claimant sustained an injury to her right arm. She began receiving benefits pursuant to the Pennsylvania Workers' Compensation Act (Act). On January 27, 2009, the parties entered into a Compromise and Release Agreement. The Agreement described Claimant's work injury as a tear to the right wrist; a derangement of the right wrist radioulnar joint; a right brachial plexus injury; a painful neuroma to the right wrist; neuropathy at the right elbow; and radial neuropathy at the right elbow. Reproduced Record at r34 (R.R. ___). Pursuant to the Agreement, Claimant received a lump sum indemnity payment of $72,000, and Employer agreed to remain liable for "all causally related medical expenses." R.R. r35.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
On February 26, 2010, Claimant filed a penalty petition. She alleged that Employer had refused to provide her with safe transportation in the form of a vehicle with automatic transmission. A hearing on the matter was held by the WCJ.
At the hearing, the parties presented the WCJ with a stipulation of facts. By this stipulation, they agreed that Claimant continued to suffer pain in her right shoulder, arm and wrist and numbness in her right hand as a result of her work injury. These problems make it difficult for her to operate a vehicle with standard transmission. Further, Claimant's treating physician, Scott H. Jaeger, M.D., opined that it would be preferable for Claimant to use a vehicle with an automatic transmission. Employer did not contest these stipulated facts; rather, it contested the claim that it had a legal obligation to purchase Claimant a new vehicle.
A letter from Dr. Jaeger was submitted into evidence, stating that Claimant has persistent complaints of pain and that using the stick shift in her car exacerbates her symptoms. Dr. Jaeger asserted that "[i]t would be extremely useful for her to be able to use a standard automatic transmission car, which will prevent much of her symptoms." Certified Record (C.R.), Claimant Exhibit #2.
The WCJ questioned whether Claimant was seeking a new or used vehicle and what amount was at issue, which points were not covered in the penalty petition or in the stipulation. Claimant's counsel responded that Claimant sought a new vehicle in the price range of $18,000 to $20,000. When the WCJ responded that a new vehicle could be purchased for less, Claimant's counsel left open the issue of whether a used vehicle would be satisfactory. Claimant did agree that her vehicle could be used toward Employer's purchase of a new vehicle. Employer responded that a vehicle is not an orthopedic appliance and, thus, Employer was under no obligation to purchase one for Claimant.
Claimant, the sole witness, testified briefly. She stated that her 1999 Kia Sephia has a standard transmission, which makes it difficult for her to drive over long distances. Accordingly, Claimant, who lives with her parents, has to borrow her mother's car, which is equipped with automatic transmission. Claimant acknowledged that she continues to use the Kia for short trips and that its current odometer reading is 87,000 miles. She reiterated that shifting causes inflammation and pain in her neck, shoulder and back, which pain lasts the entire day.
The WCJ denied Claimant's penalty petition. The WCJ credited Claimant's testimony that she drives her vehicle for short trips and uses her mother's automobile for long trips. He also credited Dr. Jaeger's opinion that a vehicle with an automatic transmission would be useful for Claimant. However, he concluded that these facts did not support the legal conclusion that Employer was responsible for paying for a new or used vehicle with an automatic transmission.
The WCJ addressed Griffiths v. Workers' Compensation Appeal Board (Seven Stars Farm, Inc.), 596 Pa. 317, 943 A.2d 242 (2008), on which Claimant relied. Therein, a van, modified for a quadriplegic, was determined to be an indispensable medical device that met the definition of an orthopedic appliance. The claimant in Griffiths was housebound without a modified van. The WCJ found Griffiths distinguishable because Claimant can drive her existing vehicle for short trips and has access to her mother's vehicle for longer trips. Further, Claimant can travel as a passenger in any vehicle.
Claimant appealed to the Board, again arguing that Griffiths established her entitlement to a vehicle with an automatic transmission. The Board rejected Claimant's argument and affirmed the decision of the WCJ.
Claimant now petitions for review to this Court. She argues that the Board erred in concluding Employer was under no obligation to contribute toward the purchase of a vehicle with an automatic transmission. Accordingly, she is entitled to an award of penalties for Employer's unlawful refusal to provide her a replacement vehicle.
Our scope of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith's Frozen Foods Company v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).
Claimant argues that a vehicle with an automatic transmission is an orthopedic appliance. She cannot easily operate the vehicle that she owns, as a direct result of her work injury and, thus, Employer must assist in obtaining a suitable replacement. In support, she cites to Griffiths, 596 Pa. 317, 943 A.2d 242; Zuback v. Workers' Compensation Appeal Board (Paradise Valley Enterprise Lumber Co.), 892 A.2d 41 (Pa. Cmwlth. 2006); and Equitable Resources v. Workers' Compensation Appeal Board (Thomas), 981 A.2d 386 (Pa. Cmwlth. 2009).
In Zuback, the claimant sustained a work injury that resulted in the loss of his left arm, left leg, and two right toes. The employer installed two stair glides in his home, so that he could reach the second and third floors. The stair glides did not work properly and when his employer refused to fix them, Claimant filed a penalty petition. Section 306(f.1)(1)(ii) of the Act requires an employer to "provide payment for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses in accordance with this section." 77 P.S. §531(1)(i) (emphasis added). We concluded that the stair glides, which operated much like wheelchairs, were orthopedic appliances. Thus, the employer was required to replace them when they failed.
We denied attorney fees and costs, finding employer presented a reasonable contest.
Employer argues that Zuback does not provide any support to Claimant's contention. Zuback stands for the proposition that an employer will be responsible to maintain the orthopedic applicance it provides. It does not establish that a vehicle's transmission is a type of orthopedic device that must be provided. We agree.
Next, Claimant points to Equitable Resources. In that case, the claimant suffered a work injury that rendered him unable to use his legs and caused bladder and bowel dysfunction. The employer made modifications to the claimant's bathroom to accommodate his work injuries. However, the modifications were not done properly; accordingly, a water leak developed causing damage and mold formations in the walls and floor. The employer refused to pay for the repairs. Because the employer hired the contractor to make the modifications, we found that the employer was responsible for repairing them. Claimant argues that, as in Equitable Resources, Employer is obligated to make modifications to her vehicle.
Employer retorts that Equitable Resources involved an employer's obligation to repair a defective orthopedic appliance. It is irrelevant here because Claimant's existing vehicle is not an orthopedic appliance purchased by Employer, and it is not defective. We agree that Equitable Resources provides no support to Claimant's position.
Finally, Claimant relies upon Griffiths, 596 Pa. 317, 943 A.2d 242. In that case, the claimant suffered a work injury that rendered him a C-5 quadriplegic, confining him to a wheelchair. To transport him to medical appointments and recreational activities, his wife purchased a van at a cost of $28,500. The purchase price consisted of $18,000 in base costs, $500 for shipping and handling, and $10,000 in conversion costs to make the van wheelchair accessible. The employer accepted liability for the conversion costs, but refused to contribute to the base cost of the van. Because the family had no other vehicles capable of transporting the claimant, and because it had to borrow money to pay for the van, the WCJ found that the employer also had to purchase the van. The employer appealed to the Board, and it reversed. It held that the van itself was not an orthopedic appliance and, therefore, the employer was not obligated to pay for it. This Court agreed, but the Pennsylvania Supreme Court reversed.
The Supreme Court identified the issue as whether a van, as opposed to wheelchair modifications, can qualify as an indispensable orthopedic appliance for a claimant who has sustained a catastrophic work injury. The Supreme Court concluded that, "in proper circumstances, a van modified to make it operable by a person who has suffered a devastating work injury, and who otherwise would not be able to operate a motor vehicle, qualifies as an orthopedic appliance." Id. at 339, 943 A.2d at 255. The Supreme Court explained that just as the claimant needed a wheelchair to leave his bed, he needed a van to leave his home. It explained:
Whatever a van may represent to others fortunate to have unrestricted powers of ambulation, in circumstances such as these, the van indeed is an appliance that addresses and is directly responsive to the permanent orthopedic issue brought on by [the claimant's] work injury.Id. at 340, 943 A.2d at 255-56. Because the claimant had lost the ability to stand, "to operate an ordinary vehicle, to ride in a friend's car, to hail a cab ... the van is crucial to restore some small measure of the independence and quality of life that existed before the work injury." Id. at 340, 943 A.2d at 256.
The Supreme Court noted that because of his work injury, "[the claimant] may only avail himself of a vehicle specifically chosen for its capacity to be retrofitted to accommodate his other indispensable prosthetic device - his wheelchair." Id. at 341, 943 A.2d at 256. Nevertheless, the Court explained that the Act did not require that the van be new; that the circumstances of a claimant who already owned a van would be different from one who did not own any vehicle; and it suggested that a claimant who owned a vehicle could be required to use that vehicle as a trade-in to offset the cost of the van. In sum, in recognizing the van as a necessary orthopedic appliance "for some claimants," the Supreme Court provided that "the particular circumstances of the claimant must be considered in determining the precise obligation of the employer." Id. at 342, 943 A.2d at 257. Because of record inadequacies, the Supreme Court remanded the matter to the WCJ for more fact finding.
Claimant argues that Griffiths entitles her to a vehicle that meets her medical needs. Claimant argues that she should not be required to borrow her mother's car or limit her driving to short distances. Employer responds that Griffiths is distinguishable and limited to its facts. The claimant in Griffiths could not ride as a passenger in a standard vehicle and could not take any form of public transportation. By contrast, Claimant can drive her own vehicle and does so for short distances. She has access to her mother's vehicle and can ride as a passenger in any vehicle. She is not homebound by the lack of a vehicle with automatic transmission.
For the claimant in Griffiths a van was an "indispensable device necessary to accommodate [a] sort of catastrophic injury." Griffiths, 596 Pa. at 321, 943 A.2d at 244. Claimant does not need a large or specially equipped vehicle, and she has not lost the ability to drive or ride in "an ordinary vehicle." Id. at 340, 943 A.2d at 256. The "particular circumstances" of Griffiths are not presented here.
Accordingly, the order of the Board is affirmed.
As we find in favor of Employer, we do not reach the issue of penalties. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 13th day of February, 2013, the order of the Workers' Compensation Appeal Board dated June 1, 2012, in the above-captioned matter, is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge