IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Amore Restaurant and Norguard : Insurance Company, : Petitioners : : v. : No. 129 C.D : Argued: December 9, 2013 Workers Compensation Appeal : Board (Hayes), : Respondent : BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: January 24, 2014 Petitioners Amore Restaurant and Norguard Insurance Company (collectively Employer) petition for review of an order of the Workers Compensation Appeal Board (Board), dated January 4, The Board affirmed the decision of a Workers Compensation Judge (WCJ), which granted the petition for penalties of Carla Hayes (Claimant). For the reasons that follow, we reverse the Board s order. Claimant sustained a work-related injury on March 3, Employer never issued a notice of compensation payable, and Employer never entered into an agreement for compensation with Claimant, which ordinarily would identify the nature of Claimant s injury. The only document in the record that

2 describes Claimant s work-related injury is a compromise and release agreement (the Agreement) that Claimant and Employer executed on October 8, The Agreement contains the following language, located in a box on the form on the top of the first page: To the extent this agreement references an injury for which liability has not been recognized by agreement or by adjudication, the term injury shall mean alleged injury. (Reproduced Record (R.R.) at 85a.) Paragraph 4 of the Agreement provides as follows: 4. State the injury, the precise nature of the injury and the nature of the disability, whether total or partial. Aggravation of left triangular cartilage complex ( TFCC ) tear. It is specifically understood and agreed that this settlement includes any and all injuries incurred by Claimant on or about 3/3/2006, or arising therefrom, regardless of what terms are used to describe the injuries. By agreeing to this settlement, the Claimant agrees that she has sustained no other injuries or diseases arising in the course of employment with this employer or causally related to this employment, and that she has not given timely statutory notice of any other such claims. This settlement is to be a full and final settlement of this claim, without limitation or reservation, and includes any and all claims for benefits payable now or in the future and arising out of or causally related to the injury of 3/3/2006. (R.R. at 85a; emphasis added.) 1 The parties do not dispute that the identified injury pertains to Claimant s wrist area. 1 According to Claimant s Brief, the nature of her injury as reflected in the Agreement was determined after [her] original injury was litigated to conclusion and a decision and Order was issued by the Honorable Patrick J. Cummings. (Claimant s Br. at 2.) The parties apparently did not submit any materials relating to those proceedings. Moreover, the parties submitted only the Agreement, without any documentation referencing proceedings before a Workers Compensation Judge for approval of the Agreement. 2

3 Paragraph 10 of the Agreement provides: 10. Summarize all benefits to be paid on and after the date of this stipulation or agreement for the reasonable and necessary medical treatment causally related to the injury and the length of time such payment of benefits is to continue. Medical bills for dates of services on and after the date of this agreement will continue to be paid by the employer, as long as they are reasonable, necessary, and causally related. (R.R. at 86a.) Thus, under the terms of the agreement, Claimant accepted a lump sum payment for her injury and released Employer from its obligation under the Workers Compensation Act (Act) 2 power) arising from the aggravation of her TFCC tear. to pay for any disability (loss of earning Prior to entering into the Agreement, Employer paid all of the medical bills that Claimant submitted. Once she signed the Agreement, however, Employer unilaterally refused to pay medical bills that Claimant incurred after the date of the Agreement that were for the same treatments previously paid for by Employer. Claimant filed her penalty petition on December 23, 2010, alleging that Employer wrongfully refused to pay her reasonable and necessary medical bills in violation of the Agreement. Claimant sought relief directing Employer to pay the medical bills and penalties for its failure to pay the bills under Section 435(d)(i) of the (Act). 3 Employer filed a timely answer, denying the allegations in Claimant s penalty petition, and the matter was assigned to the WCJ. 991(d)(i). 2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S , Added by Section 3 of the Act of February 8, 1972, P.L. 25, as amended, 77 P.S. 3

4 During a hearing before the WCJ, Claimant testified in support of her penalty petition. Claimant testified that she underwent eight surgical procedures to her left arm and hand area as a consequence of the aggravated TFCC tear identified in the Agreement. She testified that her injury and the surgeries performed to treat the aggravation of her TFCC tear caused her to have a lack of mobility in her left wrist, and that, following surgery to fuse her left wrist she had no mobility in her left wrist. She testified that, as a consequence of the injury and fusion, she must use her whole arm to do anything, to pick up anything. (R.R. at 49a.) She testified that because of the difficulties she has using her left hand and wrist and the need to lift items using her arm, she has pain in her neck and shoulder area. (R.R. at 49a-52a.) She testified that she did not have any problems with her neck and shoulder areas until after she sustained her work-related injury, and that the chiropractic treatments she received relieved her neck and shoulder pain. (R.R. at 53a, 56a.) Claimant also testified that she sees a pain management physician who administers pain block injections. (R.R. at 59a.) She testified that she obtained the same treatments, both from the chiropractor and the pain management physician, before and after Employer entered the Agreement. She admitted in her testimony on cross-examination that she had not filed a petition to add shoulder and neck injuries to the description of her injury in the Agreement. (R.R. at 63a.) Claimant testified that Employer paid the bills associated with her wrist, neck, and shoulder conditions from the time of her injury up until Employer signed the Agreement, and that, thereafter, Employer stopped paying her medical bills associated with her neck and shoulder conditions: [N]o code has changed, 4

5 because I called the doctor. Everything was the same. As soon as they got my settlement that was it. It was cut off. (R.R. at 72a.) Claimant also offered the deposition testimony of Doctor Gary Latimer, D.C., who testified that he diagnosed Claimant with wrist pain and a secondary diagnosis of myalgia, cervical inner signal dysfunction, cervicalgia, and shoulder pain. Dr. Latimer also testified that his treatment of Claimant was related to her identified work injury i.e., aggravation of her TFCC tear. Dr. Latimer also testified that his treatment was in response to Claimant s work injury and multiple surgeries, that her inability to use her wrist because of its immobility had affected her elbow and shoulder areas, and that strain and stress associated with the compensatory use of these areas resulted in muscle spasms. Employer did not present any live or deposition testimony, but it did submit a print-out of Claimant s medical bills. The WCJ found the testimony of Claimant and Dr. Latimer credible. The WCJ reasoned that Employer s discontinuation of payment for Claimant s treatments with Dr. Latimer the day after Claimant signed the Agreement was not uniform and routine. Moreover, the WCJ also determined that Dr. Latimer s treatment was for conditions causally related to Claimant s work-related injury. The WCJ concluded that Employer violated the Act by failing to continue to pay for Claimant s medical treatment after October 7, 2010, and, based upon that conclusion, imposed penalties on Employer of twenty-five (25) percent. 4 4 Specifically, the WCJ awarded unpaid medical bills for Dr. Latimer totaling $5, and a penalty of $1, (WCJ Decision, Finding of Fact No. 16.) 5

6 Employer appealed to the Board, which affirmed the WCJ. Board noted that Employer paid Dr. Latimer s bills from November 2007 through October 7, 2010, and never challenged the reasonableness or causal relationship of the treatment for Claimant s work-related injury. The Board also noted that the coding for the particular bills and/or procedures was the same before Claimant signed the Agreement and afterwards. Thus, the Board concluded that the WCJ did not err in determining that Claimant s bills for treatments performed after she signed the Agreement were for conditions causally related to her work-related injury. The In its appeal to this Court, Employer raises the following issues: 5 (1) whether evidence supports the WCJ s conclusion that Employer violated the Act by failing to pay the subject medical bills; (2) whether the WCJ improperly expanded the description of Claimant s injury by concluding that the treatments are necessary and reasonable for the injury identified in the Agreement; (3) whether the Board erred in not addressing Employer s claim that Dr. Latimer s billings for massage therapy are not treatments that are payable under the Act; and (4) whether the WCJ issued a reasoned decision as required by the Act. We begin by addressing Employer s challenge to the WCJ s conclusion that Employer violated Section 306(f.1)(5) of the Act, 6 which provides: The employer or insurer shall make payment and providers shall submit bills and records in accordance with the provisions of this section. All payments to 5 This Court s standard of review is limited to determining whether constitutional rights were violated, whether an error of law was committed, and whether substantial evidence supports necessary findings of fact. 2 Pa. C.S P.S. 531(5). 6

7 providers for treatment shall be made within thirty (30) days of receipt of such bills and records unless the employer or insurer disputes the reasonableness or necessity of the treatment provided pursuant to paragraph (6). Generally, [a]n employer who unilaterally terminates benefits... is subject to penalties under the Act. Palmer v. Workers Comp. Appeal Bd. (City of Philadelphia), 850 A.2d 72, 73 (Pa. Cmwlth. 2004). An employer may, however, unilaterally refuse to pay disputed medical benefits without first filing a petition with the [WCJ] where the employer challenges the causal relationship of medical treatment to an earlier work-related injury. Green v. Workmen s Comp. Appeal Bd. (Ass n for Retarded Citizens), 670 A.2d 1216, 1221 (Pa. Cmwlth. 1996). Thus, in a case such as this, where an employer refuses to pay medical benefits unilaterally based upon its belief that there is no causal connection between treatment and a work-related injury, the employer bears the risk of payment for past medical treatments and penalties when a claimant establishes that the treatments are causally related to a work injury. Id. at Under Section 435(d)(i) of the Act, a WCJ may, in his or her discretion, impose penalties against an employer when a claimant demonstrates that the employer violated the Act by improperly terminating benefits. Palmer, 850 A.2d at 74. The WCJ and the Board based their decisions primarily on the fact that Employer paid the same medicals bills that are at issue for many years up until immediately after Claimant signed the Agreement. Both the WCJ and the Board observed that, because Employer had paid the bills, Claimant had no reason to think that she needed to have her other conditions identified as work-related injuries in addition to the aggravation of the TFCC tear. 7

8 This Court has consistently held that an employer s past payment of medical bills does not constitute an admission of liability for an allegedly work-related injury. DePue v. Workers Comp. Appeal Bd. (N. Paone Constr., Inc.), 61 A.3d 1062, 1068 (Pa. Cmwlth. 2013). An employer s voluntary payment of medical expenses [is] not an admission of its liability... and cannot be construed as a promise to continue to make such payment. Id. at Thus, we believe that the WCJ and the Board erred by basing their conclusions on the fact that Employer here continuously paid the medical bills at issue up until the time of the Agreement. Consequently, we must consider whether Employer is correct in asserting that Agreement resolved the issue of whether Claimant s neck and shoulder conditions are encompassed under the terms of the Agreement. 7 Section 449 of the Act, 8 which relates to compromise and release agreements, is relevant to our discussion of this issue, and provides, in part: (a) Nothing in this act shall impair the right of the parties interested to compromise and release... any and all liability which is claimed to exist under this act on account of injury or death. (b) Upon or after filing a petition, the employer or insurer may submit the proposed compromise and release by stipulation signed by both parties to the [WCJ] for approval. The [WCJ] shall consider the petition and the proposed agreement in open hearing and shall render a decision. The [WCJ] shall not approve any compromise 7 We cannot agree with the inference contained in the WCJ s and Board s decisions that Claimant s neck and shoulder conditions are not distinct injuries from her TFCC tear (a wrist injury). While the WCJ may have attempted to view the treatment for those conditions as having some causal relationship to Claimant s wrist injury, those conditions are separate and distinct injuries for the purposes of analysis under the Act. 8 Added by the Act of June 24, 1996, P.L. 350, 77 P.S

9 and release agreement unless he first determines that the claimant understands the full legal significance of the agreement. The agreement must be explicit with regard to the payment, if any, of reasonable, necessary and related medical expenses.... We first note that the Agreement settled finally any dispute between Claimant and Employer regarding the disability aspect of Claimant s identified work injury. Claimant accepted a lump sum payment in return for her agreement not to seek further disability benefits from Employer i.e., weekly benefits for total or partial disability (loss of earning ability) arising from the identified work injury. The Agreement specifically provides that Claimant settled her aggravated TFCC tear and all injuries... arising therefrom. (R.R. at 85a (emphasis added).) Thus the Agreement itself plainly disposes of all other injuries that arose as a consequence of Claimant s TFCC tear aggravation. The Agreement does not encompass a shoulder or neck injury as part of Claimant s aggravation injury, and the record includes no suggestion that Claimant and Employer ever agreed to those injuries or had those injuries adjudicated. Although Paragraph 10 of the Agreement provides that Employer would continue to pay for all medical treatment as long as the treatment is reasonable, necessary, and causally related, (R.R. at 86a (emphasis added)), that provision must be read in the context of the fact that Claimant, in Paragraph 4 of the Agreement, affirmatively agreed that she had sustained no work-related injuries other than the TFCC tear. Thus, Claimant elected to forego the inclusion of any other potentially causally-related injuries, whether currently known or not. Our decision in DePue supports our conclusion regarding the effect of the Agreement in this case. In DePue, Michael DePue, the claimant, sustained a head injury and received compensation benefits in accordance with a notice of 9

10 compensation payable. Twelve years after the injury, DePue and his employer entered into a compromise and release agreement which provided DePue with a lump sum payment of $175,000 for future wage loss benefits and his employer s agreement to pay for all reasonable and necessary medical bills. The agreement in that case described his injury as any and all injuries suffered... including but not limited to the accepted injuries of a severe closed head injury with seizure disorder and short term memory loss. Id. at Following a hearing during which DePue testified regarding his understanding of the terms of the agreement, a WCJ approved the compromise and release agreement. Two years after the agreement was approved, DePue filed a penalty petition alleging that his employer neglected, failed, or refused to pay his medical bills. Several months later, DePue also filed a petition to review his benefits, in which he asserted that the description of his work injury was incorrect. Both petitions concerned an injury to DePue s left shoulder, which was an injury he claimed arose from the same incident that caused his head injury. As in this case, the employer previously had been paying his medical bills for that condition without objection. The WCJ who addressed both of DePue s petitions concluded that res judicata barred DePue s review petition, based upon DePue s awareness of the shoulder injury and his specific agreement not to include that injury in the compromise and release agreement. Id. at The Board affirmed the WCJ s decision, holding that the agreement was final and binding and that DePue could not raise an issue that he could have and should have litigated in the compromise and release agreement proceedings. Id. at

11 This Court on appeal rejected DePue s arguments that the description of the injury was erroneously omitted in the agreement and that his employer had routinely paid the bills in allegedly full knowledge and/or belief that the treatments were causally related to his work-related injury. The Court also rejected DePue s argument that the rules of contract construction supported his claim in light of the language of the compromise and release agreement to encompass any and all injuries sustained at his employer s workplace. The evidence in the record demonstrated that DePue and/or his counsel had specifically discussed the shoulder injury in the process of developing the compromise and release. The Court also concluded that DePue s reliance upon the legal doctrines of promissory and equitable estoppel had no merit. As we noted above, we held that DePue could not rely upon his employer s previous payment of medical bills for his shoulder injury to estop the employer from challenging the right to payment for such bills. Id. at We held in DePue that the General Assembly [i]n enacting Section 449 of the Act... intended a [compromise and release] agreement to be on equal footing with civil settlements in order to promote a public policy of encouraging the parties to settle disputes and bring them to finality. DePue, 61 A.3d at Once a WCJ approves a proposed compromise and release agreement, the agreement is final, conclusive, and binding on the parties. Id. at Moreover, after a WCJ approves a compromise and release agreement, the parties to the agreement are precluded from raising later any issue that they did not expressly reserve. Id. For instance, if a claimant does not expressly reserve his right to add a new injury to the description of his work injuries, he [is] precluded from doing so. Id. 11

12 Similarly, in this case Claimant s agreement with Employer specifically defined the injuries encompassed within the Agreement. Similar to this case, the agreement in DePue described the injury as any and all injuries suffered... including but not limited to the accepted injuries of a severe closed head injury with seizure disorder and short term memory loss. Id. at As noted above, the Agreement here settled finally and completely the injuries for which Employer was responsible, including any and all injuries incurred by Claimant on or about 3/3/2006, or arising therefrom, regardless of what terms are used to describe the injuries. (R.R. at 85a (emphasis added).) In order to anticipate a situation such as this, where a claimant thinks or believes that he or she may have additional injuries arising as a consequence of an initial work-related injury, it is incumbent upon such a claimant to reserve a specific right in the compromise and release agreement to add additional causally-related injuries. Here, by accepting terms in the Agreement that specifically preclude recognition of such injuries that have arisen as a consequence of the identified injury, Claimant agreed to forego benefits related to any such injuries. Because we agree with Employer that the WCJ and the Board erred in concluding that Employer violated Section 306(f.1)(5) of the Act, we need not address the remaining issues raised by Employer. Accordingly, we reverse the Board s order. P. KEVIN BROBSON, Judge 12

13 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Amore Restaurant and Norguard : Insurance Company, : Petitioners : : v. : No. 129 C.D : Workers Compensation Appeal : Board (Hayes), : Respondent : O R D E R AND NOW, this 24 th day of January, 2014, the order of the Workers Compensation Appeal Board is REVERSED. P. KEVIN BROBSON, Judge

14 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Amore Restaurant and Norguard : Insurance Company, : No. 129 C.D : Argued: December 9, 2013 Petitioners : : v. : : Workers Compensation Appeal : Board (Hayes), : : Respondent : BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN FILED: January 24, 2014 Because I believe that the Workers Compensation Appeal Board (Board) correctly affirmed the decision of a workers compensation judge (WCJ) granting the penalty petition filed by Carla Hayes (Claimant), I respectfully dissent. 1 Claimant suffered a work-related injury on March 3, 2006, while employed by Amore Restaurant (Employer) and underwent eight surgical procedures to her left arm and hand area. (WCJ s Findings of Fact, No. 5.) Claimant started 1 The Workers Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S , , was intended to benefit the injured employee, and, therefore, must be construed liberally in the employee s favor in order to effectuate its humanitarian objectives. Gentex Corporation v. Workers Compensation Appeal Board (Morack), 611 Pa. 38, 48, 23 A.3d 528, 534 (2011).

15 treating with Dr. Gary Latimer, a chiropractor, in November (Id., No. 13.) Dr. Latimer s primary diagnosis of Claimant was wrist pain with a secondary diagnosis of myalgia, cervical inner signal dysfunction, cervicalgia, and shoulder pain. (Id.) After the work-related injury, Claimant also received treatment from Dr. Joseph Chun, a pain management physician. According to Claimant, Dr. Chun injects a Stanglion Block into Claimant s neck to block the nerve down to my down my whole arm. (R.R. at 57a.) Claimant further testified that Dr. Chun relieves her pain with medications and injections. (Id. at 58a.) Employer paid all medical bills submitted by Dr. Latimer and Dr. Chun. On October 8, 2010, the parties executed a compromise and release agreement (the Agreement) identifying Claimant s injury as an [a]ggravation of left triangular fibro cartilage complex ( TFCC ) tear. The Agreement provides that this settlement includes any and all injuries incurred by Claimant on or about 3/3/2006, or arising therefrom.... (R.R. at 85a.) The Agreement further provides that [m]edical bills for dates of services on and after the date of this agreement will continue to be paid by the employer, as long as they are reasonable, necessary, and causally related. (R.R. at 86a.) As previously stated, at all times prior to executing the Agreement, Employer paid the medical bills of Dr. Latimer and Dr. Chun. However, immediately after executing the Agreement, Employer refused to pay the medical bills despite the fact that Claimant obtained the same treatments from both physicians before and after the Agreement. In response, Claimant filed the penalty petition at issue. RSF - 2 -

16 At the hearing before the WCJ, Claimant offered the deposition testimony of Dr. Latimer. As acknowledged by the majority, Dr. Latimer... testified that his treatment of Claimant was related to her identified work injury-i.e., aggravation of the TFCC tear. Dr. Latimer also testified that his treatment was in response to Claimant s work injury and multiple surgeries.... (Maj. Op. at 5 (emphasis added).) Dr. Latimer s assessment and treatment of Claimant has been the same since he first treated Claimant in November (R.R. at 202a.) Claimant identified that Dr. Latimer s treatment has been helpful to her in terms of the symptoms from her work injury, noting that the same relieves her pain. (WCJ s Findings of Fact, No. 9.) Crediting the testimony of Claimant and Dr. Latimer, the WCJ concluded that the treatment provided by Dr. Latimer and Dr. Chun was causally related to Claimant s work injury and granted Claimant s penalty petition. Because Claimant, through her testimony and that of Dr. Latimer, established that the medical treatments provided were causally related to her work-related injury, I believe that the Board properly affirmed the WCJ s decision to impose penalties. This case is distinguishable from DePue v. Workers Compensation Appeal Board (N. Paone Construction, Inc.), 61 A.3d 1062 (Pa. Cmwlth. 2013), on which the majority relies. 2 The claimant therein entered into a compromise and release agreement with his employer, describing his injury as a severe closed head injury with seizure disorder and short term memory loss. Id. at Two years 2 I was on the panel of DePue. I agreed with it then, and I agree with it now. However, this case is not controlled by DePue. RSF - 3 -

17 later, the claimant filed a penalty petition alleging that the employer ceased making payments for medical bills relating to his shoulder. Id. The claimant also filed a petition seeking to review his benefits, alleging that his work injuries were described incorrectly. Id. This court observed that after negotiations with the employer, the claimant agreed to omit the shoulder injury from the compromise and release agreement. Because the claimant expressly agreed to omit the left shoulder injury in the agreement, this court concluded that the claimant could not rely on the employer s payment of medical bills for the claimant s left shoulder to support his estoppel claim. Id. at Moreover, the employer s voluntary payment of medical expenses for the shoulder injury was neither an admission of liability, nor a promise to continue making such payments. Id. at Unlike DePue, Claimant is not seeking to add a new injury or to correct the described injury, and the parties did not negotiate the omission of an injury in the Agreement. Rather, this case concerns Employer s obligation to continue making medical treatment payments for Claimant s identified work-related injury, which Employer previously paid and agreed to continue paying in the Agreement. Moreover, unlike DePue, Claimant proffered testimony that the medical treatment she receives is for her work-related injury. Dr. Latimer has continuously treated Claimant for her identified work injury i.e., aggravation of the TFCC tear. 3 The 3 When asked whether the chiropractic treatment he provided to Claimant was reasonable, necessary, and related to her work injury of March 2006, Dr. Latimer answered: (Footnote continued on next page ) RSF - 4 -

18 WCJ found that the medical bills, which were coded the same both before and after the Agreement, were causally related to Claimant s work injury. As such, I would affirm the Board. ROCHELLE S. FRIEDMAN, Senior Judge (continued ) (R.R. at 205a.) You know, not to sound funny but whoever made the statement, you know, the knee bone is connected to the hip bone, is exactly how it works. [Claimant] had a wrist injury, a significant wrist injury, you know, a severe debilitating wrist injury and has had 7 surgeries and a total fusion. And the rest of her joints from her elbow to her shoulder to her neck have taken the blunt of the, you know, taken the from the more stress and strain on the joints to the muscle spasms throughout the joints to the and have taken the blunt of her not being able to use her wrist at all; to carry, lift, supination, pronation. And it s just it goes right up through the whole upper extremity and certainly into her neck. It s the same, you know, one in the same. RSF - 5 -