eNotes: Workers’ Compensation – December 2023 – Pennsylvania

SIGNIFICANT CASE SUMMARIES AND CLIENT ADVISORY

Pennsylvania Case Summaries & Client Advisory

CLIENT ADVISORY – Statewide Average Weekly Wage and Maximum Compensation Rate Adjustment for 2024

Every year, the Pennsylvania Department of Labor & Industry adjusts the statewide average weekly wage and compensation rate calculation formula. All injuries that occur on or after January 1, 2024 will be subject to these new parameters.

As of January 1, 2024, the maximum weekly compensation rate will be $1,325.00. This represents a 4% increase from the 2023 maximum compensation rate of $1,273.00. Generally, claimants with an average weekly wage exceeding $1,987.50 will have their compensation rate capped at $1,325.00.

If the claimant’s average weekly wage is between $993.76 and $1,987.50, then the compensation rate is calculated by multiplying the average weekly wage by two-thirds (66 2/3%).

If the claimant’s average weekly wage is between $736.11 and $993.75, then the compensation rate is $663.50.

If the claimant’s average weekly wage is $736.10 or less, then the compensation rate is calculated by multiplying the average weekly wage by nine-tenths (90%).

Questions about this matter can be directed to John Morgan at (267) 861-7580 or jmorgan@tthlaw.com.

Bennett v. Jeld Wen, Inc. (WCAB)
No. 1454 C.D. 2022, 2023 Pa. Commw. LEXIS 213
Commonwealth Court of Pennsylvania

Decided: October 6, 2023

In a now published decision, the Court affirmed the Board’s decision to grant a de novo hearing and deny penalties and unreasonable contest attorneys’ fees to the Claimant when the genesis of the denial of bills arose from an illegal self-referral scheme between a doctor and pharmacy.

Background

The Claimant sustained work-related injuries and sought compensation from the Employer. Despite 12 administrative determinations ordering payment, the Employer failed to pay a Pharmacy for a prescribed compound cream. The Claimant filed a Penalty Petition, and the Workers’ Compensation Judge (WCJ) assessed a 15% penalty and unreasonable contest attorneys’ fees against the Employer. The Workers’ Compensation Appeal Board (Board) vacated the WCJ’s decision and denied the Penalty Petition, prompting the Claimant’s appeal.

Holding

The Commonwealth Court affirmed the Board’s decision, upholding the grant of a de novo hearing and denial of penalties and unreasonable contest attorneys’ fees. The Court determined that the Board did not abuse its discretion in allowing a de novo hearing, considering evidence of a prohibited self-referral, and denying the Penalty Petition. The Court emphasized that Section 425 of the Act authorized a de novo hearing in cases involving fraud, coercion, or other improper conduct, and in this case, there was evidence of improper conduct by the Pharmacy and the prescribing doctor. The Board’s decision was deemed just and proper.

Takeaway

This case reaffirms that Section 425 of the Act provides the Board with the authority to grant a de novo hearings in cases involving fraud, coercion, or other improper conduct. The Court emphasized that evidence of “improper conduct by any party in interest,” including the Pharmacy and prescribing doctor, justified the de novo hearing. Specifically, the Court noted the Pharmacy’s consistent non-cooperation with Employer’s attempts to obtain information regarding a prohibited self-referral, suggesting improper conduct. The Court affirmed the Board’s decision, reinforcing that the unpaid bills were a result of a prohibited self-referral, justifying the Employer’s non-payment. The decision highlights that, under these circumstances, the Board did not exceed its authority, and the Claimant was not entitled to unreasonable contest attorneys’ fees, given the denial of the Penalty Petition.

Questions about this case can be directed to Christopher Scott at (717) 237-7111 or cscott@tthlaw.com.

Mark R. Schmidt v. Schmidt, Kirifides and Rassias, PC (WCAB)
No. 1039 C.D. 2021
Commonwealth Court of Pennsylvania

Decided: November 14, 2023

CBD oil was found to be a “medicine” and “supply” under the Workers’ Compensation Act

Background

The Claimant sustained a work-related injury to his lower back. Following the work injury, the Claimant’s medical treatment consisted of pain management, medications, and cannabinoid (CBD) oil. The Employer refused to reimburse the Claimant’s out-of-pocket expenses for his purchase of the CBD oil on the basis that CBD oil was not a pharmaceutical drug, but rather an over-the-counter dietary supplement. The Claimant filed a Penalty Petition alleging that the Employer violated the Act by failing to reimburse his out-of-pocket costs for medical treatment. The WCJ granted the Claimant’s Penalty Petition, finding that CBD oil was a medical supply and thus subject to reimbursement pursuant to the Act. On appeal, the Board reversed the WCJ, concluding that CBD oil cannot be reasonable and necessary medical treatment because requiring the Employer to pay for cannabis or cannabis-derived products violated federal law. The Claimant appealed to the Commonwealth Court.

Holding

The Court held that CBD oil fit within the definitions of “medicines” and “supplies” under the Workers’ Compensation Act. Section 306(f.1) of the Act provides that the employer must provide payment for reasonable surgical and medical services rendered by a physician or other health care provider, including “medicines and supplies, as and when needed.” In reaching this finding, the Court looked to the meaning of medicine and medical supplies and found that both are used in treating disease, illness or injury. In finding that the WCJ properly determined that the Employer violated the Act by not reimbursing the Claimant for the CBD oil, the Court relied upon the fact that the CBD oil had benefited the Claimant’s well-being by reducing his pain, eliminating the need to increase the use of highly addictive opioid medications, and forestalling expensive and risky surgery.

Takeaway

This opinion establishes that CBD oil may be compensable pursuant to the Act as a medical “supply,” though other case law suggests a contrary result in other circumstances. In a situation where a claimant is requesting reimbursement for out-of-pocket expenses related to CBD oil, there are other avenues to challenge reimbursement, such as the Utilization Review process, challenging the reasonableness and necessity of the “medicine” or “supply.” Due to the anecdotal pain-relieving properties, and the fact that CBD oil has not been accepted by the FDA, a Utilization Review may prove successful.

Questions about this case can be directed to A. Catherine McLaughlin at (412) 926-1421 or cmclaughlin@tthlaw.com.

Premium Transportation Staffing, Inc. v. Welker (WCAB)
No. 1329 C.D. 2022
Commonwealth Court of Pennsylvania

Decided: November 30, 2023

A truck driver’s witnessing of a relatively minor truck fire that was overturned did not qualify as an abnormal working condition, and therefore a mental injury was not compensable.

Background

The Claimant, a truck driver, experienced a relatively minor truck fire lasting two to three minutes. Despite the fire being safely managed and extinguished without harm, the Claimant alleged PTSD resulting from the event. The Employer contested, arguing that the truck fire did not constitute an abnormal working condition. The Employer further contended that the truck fire was not extraordinarily unusual, highlighting the Claimant’s ability to handle the situation safely and the absence of significant harm. Despite the Employer’s arguments, the Workers’ Compensation Judge (WCJ) awarded compensation, finding the event to be an abnormal working condition. On appeal, the Workers’ Compensation Appeal Board (Board) affirmed, agreeing that the truck fire was abnormal for a truck driver. The Employer appealed to the Commonwealth Court.

Holding

The Commonwealth Court determined that the Board erred in affirming the WCJ’s finding that the Claimant’s mental injury arose from an abnormal working condition. The Court emphasized that the truck fire, an event that the Claimant was trained to anticipate and was equipped to stop, did not meet the standard of being “extraordinarily unusual and distressing” as required by precedential cases. The Court highlighted that the truck was equipped with a fire extinguisher and the Claimant had seen truck fires, as well as the burned remains of trucks, on previous occasions. The Court concluded that the relatively minor truck fire experienced by the Claimant did not qualify as an abnormal working condition, overturning the Board’s decision and denying the award of Workers’ Compensation benefits.

Takeaway

To qualify as an abnormal working condition warranting Workers’ Compensation benefits, an employment event must be extraordinarily unusual and distressing, with consideration given to a claimant’s ability to anticipate and respond to the event based on training and industry expectations.

Questions about this case can be directed to Matt Mangapora at (412) 926-1437 or mmangapora@tthlaw.com.