Francis X. Wickersham

1.    House Bill 1837 Becomes Law 

On December 22, 2021, Governor Tom Wolf signed into law House Bill 1837, which moderately reformed Sections 413(c) and (d) and Section 449(c) of the Pennsylvania Workers’ Compensation Act. The law eliminated the requirement of two witness signatures or a notarized signature on the Compromise & Release Agreement, provided a claimant gives sworn testimony that the full legal significance of the agreement is understood. The law also eliminated the requirement of a notarized affidavit with the Notification of Suspension or Modification form, provided the insurer properly verifies that compensation is being suspended because the claimant has returned to work at prior or increased earnings. The law went into effect in February 2022. 

2.    Supreme Court holds that non-treating medical providers do not have a constitutional right to receive notice and to intervene in Utilization Review proceedings.
Keystone RX, LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Compservices/AmeriHealth Casualty Services), 265 A.3d 322 (Pa. 2021)

In affirming the dismissal of a pharmacy’s Fee Review application, the Commonwealth Court prospectively held that non-treating health care providers, such as pharmacies, must be given notice and the opportunity to intervene in Utilization Review (UR) proceedings. The Pennsylvania Supreme Court reversed, holding that the Commonwealth Court was wrong to conclude that prohibiting providers from participating in the UR process, but treating UR Determinations as binding on subsequent Fee Review Determinations, would threaten providers' due process rights to payment. The court found that when an employer or insurer successfully challenges a treatment, non-treating providers do not have a constitutional entitlement to payment under the Act, simply an expectation of payment in the normal course and, thus, no viable due process claim. 

3.    Supreme Court holds that under Section 440(a) of the Act, a reasonable sum for attorney’s fees shall be awarded when a contested case is resolved in favor of the claimant.
Lorino v. WCAB (Commonwealth of Pennsylvania), 266 A.3d 487 (Pa. 2021)

This case involved litigation of a termination petition for a no-lost-time work injury that was acknowledged by a Medical Only Notice of Compensation Payable where the claimant requested payment of attorney’s fees under Section 440 of the Act. In dismissing the petition, the Workers’ Compensation Judge found there was a reasonable contest and denied an award of Section 440 counsel fees (while awarding fees under Section 442 for a lesser amount). Although the Appeal Board and the Commonwealth Court both affirmed, the Supreme Court reversed, holding that under Section 440(a), when a contested case is resolved in favor of the claimant, a reasonable sum for attorney’s fees shall be awarded but may be excluded where a reasonable basis for the contest has been established. 

4.    Supreme Court holds that claimant did not cease to be in the course and scope of employment once he drove past his home to attend a voluntary happy hour sponsored by the employer. 
Jonathan Peters v. WCAB (Cintas Corporation), 263 A.3d 375 (Pa. 2021)

The Pennsylvania Supreme Court held that the claimant, a traveling sales representative who sustained injuries in a motor vehicle accident on the way home from a non-mandatory but employer-sponsored work event, was in the course and scope of employment throughout the time of the event.

5.    Injury sustained by the claimant on his way to take a cigarette break and get a sandwich was compensable under the “personal comfort” doctrine.
Stanley Henderson v. WP Ventures, Inc. (WCAB), 269 A.3d 1272 (Pa. Cmwlth. 2022)

A claimant's head injury from falling in a park during a smoke break was compensable pursuant to the personal comfort doctrine. According to the court, the claimant’s time away from work was informal in nature, purely devoted to a personal comfort of a physical nature and brief enough that the course of employment was not broken. 

6.    Absent fraud, deception, duress, mutual mistake or unilateral mistake caused by the opposing party, a Compromise and Release Agreement cannot be set aside. 
James Hymms v. Commonwealth of Pennsylvania (WCAB), 281 A.3d 375 (Pa. Cmwlth. 2022)

The Commonwealth Court rejected the claimant’s argument that there was a mistake of fact relative to the settlement amount of his hearing loss claim since it was not based on the actual value of the percentage of his hearing loss, which was higher than the court-approved settlement the claimant agreed to accept. 

7.    Failure by a claimant to complete and return a required Wage and Benefit Reporting Form (LIBC-760) is not proper grounds for an employer to withhold payment of benefits ordered by a Workers’ Compensation Judge. 
Essix Holdings LLC v. Michael Dengel (WCAB), 276 A.3d 830 (Pa. Cmwlth. 2022) 

The employer’s refusal to pay benefits to the claimant following a Workers’ Compensation Judge’s decision approving a stipulation for a claim petition, on the basis that the claimant had not returned form LIBC-760, was a violation of the Act, and penalties were warranted. 

8.    A claimant cannot rely on prior Utilization Review Determinations, which established prescription medications were reasonable and necessary, in order to show in a later penalty petition that these medications were causally related to injury and payable. 
Theresa Skay v. Borjeson & Maizel, LLC (WCAB), 280 A3d. 19 (Pa. Cmwlth. 2022). 

Although the medications at issue were previously found to be reasonable and necessary via the Utilization Review process, the employer’s subsequent denial of payment for them on the basis they were unrelated to the work injury did not violate the Act, as the claimant had the burden of proving causal relationship. 

9.    Commonwealth Court holds that the Workers’ Compensation Appeal Board exceeded its statutory authority in ordering an employer to contribute to the cost of a new home purchased by the claimant. 
Ralph Martin Construction and Lackawanna American Insurance Company v. Castaneda-Escobar, 280 A.3d 1089 (Pa. Cmwlth. 2022)

The Commonwealth Court held that, although a one-time modification to a claimant’s home following a catastrophic injury was compensable under Section 306 of the Act, the purchase of a new home extends the phrase “orthopedic appliances” in Section 306 of the Act beyond a reasonable construction. 

10.    Where employer issues a Medical Only NCP after a Notice of Temporary Compensation Payable, the issuance of a Notice of Denial and Notice of Stopping Temporary Compensation is not required and employer is not prevented from seeking a termination of benefits as of a date that precedes the date the Medical Only NCP was issued. 
Wolfe v. Martellas Pharmacy (WCAB), 281 A.3d 1129, (Pa. Cmwlth. 2022) 

The Medical Only NCP issued by the employer to recognize that an injury occurred, described the injury and indicated that medical treatment for the injury would be paid. The Medical Only NCP did not admit that the Claimant remained disabled as of the date it was issued and thus the opinion of full recovery was not inconsistent with it. 
 

_{What’s Hot in Workers’ Comp, Vol. 26, No. 12, December 2022 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 © 2022 Marshall Dennehey Warner Coleman & Goggin, 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.}