Francis X. Wickersham

1.    Commonwealth Court holds that an employer’s failure to reimburse a claimant for out-of-pocket payments for CBD oil is in violation of the Act.
Schmidt v. Schmidt, Kirifides & Rassias, Pa. C. (WCAB), 305 A.3d 1137 (Pa. Cmwlth. 2023)

The employer violated the Act for failing to reimburse the pro-se claimant for out-of-pocket expenses used to purchase CBD oil for treatment of his low back injury. The workers’ compensation judge properly found that CBD oil is a medical supply the employer was obligated to pay for under the Act, that the claimant properly submitted receipts to the employer for reimbursement and that the employer did not pay for medical treatment as obligated to under the Act. In April, the Pennsylvania Supreme Court agreed to hear the employer’s appeal of the Commonwealth Court’s decision. The court will consider the issues of whether CBD oil and other products that may be purchased without a prescription from a health care provider are “medical services” and/or “medicines and supplies” under Section 306 (f.1) of the Act, whether the cost containment regulations of the Act apply to CBD oil, and whether Section 306(f.1) of the Act requires direct reimbursement for out-of-pocket expenses for “medical services” and “medicines and supplies.” If so, are claimants required to submit supporting documentation (medical records, prescriptions, HCFAs) for reimbursement?

2.    Commonwealth Court holds that the claimant, a truck driver, was not subjected to abnormal working conditions from a minor truck fire which was extinguished in two minutes and without physical injury occurring to anyone.
Premium Transportation Staffing, Inc. v. Welker (WCAB), 305 A.3d 1212 (Pa. Cmwlth. 2023)

The claimant was trained to anticipate and respond to fires, had a fire extinguisher on the truck, was not trapped in the cab during the fire, and was able to leave the cab and retreat safely. The fire also lasted two to three minutes and was put out with assistance from another driver.

3.    Although a claimant may not have been at work with a concurrent employer on the date of a work injury with another employer, her relationship with the concurrent employer was sufficiently intact; thus, concurrent wages must be included in calculating her average weekly wage.
Resources for Human Development, Inc. and Gallagher Bassett Services v. Sherry Dixon (WCAB), 306 A.3d 1019 (Pa. Cmwlth. 2023)

The claimant’s concurrent employment was sufficiently intact at the time of the work injury because she continued to work as a home health aide for the concurrent employer after her injury with the employer, as well as after her last day of employment with the employer. 

4.    Injuries sustained by a claimant while commuting are not compensable under the Act as the claimant was not a traveling employee with no fixed place of work.
Jorge Martinez v. Lewis Tree Service (WCAB), 310 A.3d 327 (Pa. Cmwlth. 2024)

The claimant, who was injured in a motor vehicle accident while commuting home from his work as a tree trimmer, was not a traveling employee without a fixed place of employment for purposes of an exception to the “coming and going” rule. The claimant drove his personal vehicle to and from his home, his workday started at the employer’s yard where their trucks were parked, he drove the trucks to job sites and returned to the yard at the end of the workday. Additionally, the claimant was not reimbursed for travel expenses, did not store equipment at his home and was not furthering the employer’s business while commuting home in his personal vehicle. A change of work location during the day, or from day to day, does not make a claimant a traveling employee. 

5.    The Bureau is directed to identify and publish in the Pennsylvania Bulletin a different, nationally recognized schedule for valuing pharmaceuticals.
Federated Insurance Company v. Summit Pharmacy (Bureau of Workers’ Compensation Fee Review Hearing Office), 308 A.3d 329 (Pa. Cmwlth. 2024)

The use of a private publisher’s schedule of pharmaceutical prices in determining average wholesale prices (AWP) to resolve payment disputes for pharmaceuticals was found inconsistent with AWP as used in the Act governing prescription reimbursement in worker’s compensation cases. Furthermore, reliance on private schedule values of AWP to calculate the amount the insurer is to reimburse a pharmacy was inappropriate. 

6.    Exclusion of counsel fees from payment of future medical benefits on the basis that claimant’s future medical expenses are speculative was contrary to Section 306(f.1)(7) of the Act, which prohibits providers from billing a claimant for any costs relating to care under the Act.
Patrice Williams v. City of Philadelphia (WCAB), 312 A.3d 976 (Pa. Cmwlth. 2024)

Although the claimant’s future medical expenses were undetermined, such that the amount of counsel fees based on medical expenses could not yet be determined, there was no requirement that the fee agreement could only apply to past or fixed medical expenses. Moreover, the Act’s prohibition on a medical provider billing a claimant for any costs related to medical care for a compensable injury applies to amounts deducted from the medical provider’s bills for counsel fees. 

7.    Under Section 440 of the Act, an unreasonable contest will always result in an award of attorney’s fees and a reasonable contest may result in an attorney’s fee award.
Glenny Torres v. Amazon.com Services LLC (WCAB), 313 A.3d 486 (Pa. Cmwlth. 2024)

An award of attorney’s fees is mandatory when a workers’ compensation judge resolves a contest in favor of the claimant and finds the basis of the employer’s contest was unreasonable. An employer is not automatically absolved from exposure to attorney’s fees whenever its contest is deemed reasonable in a workers’ compensation matter; instead, a workers’ compensation judge has discretion to either award or exclude attorney’s fees if the workers’ compensation judge determines the contest is reasonable.

8.    A pharmacy staffed by a pharmacist supplied by an employee leasing agency is a provider as defined by Section 109 of the Act. When a physician has ownership interest in said pharmacy, a referral to the pharmacy violates the Act’s self-referral prohibition.
700 Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office & SWIF, 315 A.3d 914 (Pa. Cmwlth. 2024)

Drugs and pharmaceutical services fall within “goods and services” as governed by the anti-referral provision of the Act. Thus, Fee Review applications associated with prescriptions filled for a claimant initiated by a pharmacist were properly denied for originating from a prohibited self-referral. The pharmacy did not dispute that the prescribing physician had a financial interest in the pharmacy.

9.    Commonwealth Court holds that a claimant who was the sole proprietor is required to provide notice of a work-related injury to the workers’ compensation insurance carrier within 120 days of occurrence of the injury. 
Erie Insurance Property & Casualty Company v. David Heater (WCAB), 316 A.3d 1104 (Pa. Cmwlth. 2024)

Where a claimant is both the injured employee and the sole proprietor/employer, the “employer” to whom the claimant must notify of a work-related injury under the Act is the insurer that bears the ultimate liability for the claim. This allows the insurer to ensure that the prompt and complete investigation into the claimed injury, which would normally be performed by a disinterested employer, can be performed to protect against stale claims. Failure of the sole proprietor/claimant to give notice to his workers’ compensation insurer within 21 days of his injury, as required, precluded his Claim Petition. On December 17, 2024, the Pennsylvania Supreme Court agreed to hear the claimant’s appeal of the Commonwealth Court’s decision. They will consider the issue of whether the 21-day notice requirement of Section 311 of the Act is satisfied when the claimant gives notice solely to the employer.

10.    Acts 121 and Act 126 signed into law by Governor Shapiro.

On October 30, 2024, Pennsylvania Governor Josh Shapiro signed into law two significant workers’ compensation bills that were recently passed by the State Legislature. Act 126 establishes direct deposit for the payment of wage benefits to claimants. Act 121 relates to first responders and post-traumatic stress injuries (PTSI). First responder claimants will no longer have to prove that a psychiatric injury was caused by abnormal working conditions. The law applies to specified categories of public employees, stipulates that PTSI must result from an individual undergoing a qualifying traumatic event and limits benefits to 104 weeks. A diagnosis to be made by a licensed psychologist or psychiatrist is required, and claims must be filed within three years of a diagnosis. 

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_{What’s Hot in Workers’ Comp, Vol. 28, No. 12, December 2024 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.}