PENNSYLVANIA WORKERS’ COMPENSATION
CASE SUMMARIES
03/1/2025 – 3/31/2025
MEDICAL BILL REIMBURSEMENT
NON-PROVIDERS AND MEDICAL SUPPLIES
Mark R. Schmidt v. Schmidt, Kirifides and Rassias, PC (WCAB)
Supreme Court of Pennsylvania – Published Opinion
Decided: March 20, 2025
Issues:
Whether the terms “medical services” and “medicines and supplies” as used in Section 306(f.1), of the WC Act, include CBD oil, as well as dietary supplements and products that may be purchased without a prescription from a health care provider? 2. Whether the cost containment regulations of the Act apply to CBD oil? 3. Whether section 306(f.1) of the Act requires employers/insurers to reimburse claimants, directly, for out of-pocket expenses for “medical services” and “medicine and supplies,” and if so, are claimants obligated to submit supporting documentation, such as medical records or prescriptions, or specified forms, such as HCFA forms, before they may receive such reimbursement?
Background:
Claimant petitioned for review of decision of Workers’ Compensation Appeal Board, which reversed the WCJ’s decision granting claimant’s petition for penalties for employer’s failure to reimburse claimant’s out-of-pocket expenses for CBD oil prescribed by his treating physician. The Commonwealth Court reversed. Specifically, Claimant sustained a work-related injury in the course and scope of his employment. Claimant continued to work since the date of his work-related injury, but his pain progressively worsened. His doctor prescribed CBD oil in lieu of increasing Claimant’s OxyContin and Oxycodone dosages. Claimant purchased CBD oil over the counter from a specialty natural remedy store, rather than a pharmacy. Claimant provided Employer with his CBD oil prescription and the receipts for his purchases thereof. Employer, however, refused to reimburse Claimant for his out-of-pocket CBD oil costs on the basis that CBD oil is not a pharmaceutical drug. As a result, on October 2, 2019, Claimant filed a penalty petition. The WCJ granted Claimant’s penalty petition and ordered Employer to pay the costs associated with Claimant’s use of CBD oil; the WCJ did not, however, assess penalties against Employer. In doing so, the WCJ concluded that Claimant’s CBD oil is a “supply” under Section 306(f.1)(1)(i) of the WCA and that Claimant is not a “health care provider.” The WCJ also concluded that, because Claimant did not acquire the CBD oil from a “health care provider,” the workers’ compensation cost containment regulations do not apply, and, therefore, Employer is liable for the entirety of the costs associated with Claimant’s use of CBD oil. The Board reversed the order. In a divided opinion the Commonwealth Court reversed the Board’s order. The PA Supreme Court granted discretionary review.
Holding:
The PA Supreme Court held that CBD oil qualified as medicines and supplies subject to reimbursement under Workers’ Compensation Act (WCA), and that the claimant was not a provider subject to WCA’s cost containment provisions. The Court found that any item that is part of a health care provider’s treatment plan for a claimant’s work-related injury falls within the purview of the broad-encompassing phrase “medicines and supplies” as provided in Section 306(f.1)(1)(i). The Court further held that, in such circumstances, the cost containment provisions of the WC Act and the associated regulations, both of which apply to a health care provider, do not apply to a claimant. The cost containment provisions of the WCA and attendant Department regulations do not apply to non-providers, such that Claimant, a non-provider, was not required to comply therewith. The Supreme Court affirmed the Commonwealth Court’s order.
Practical Application:
The Supreme Court has interpreted the phrase “medicines and supplies” as used in the Workers’ Compensation Act to include anything a treating physician deems part of a treatment plan for a work-related injury. The cost containment provisions of the Act are not applicable to claimants who purchase items and personally submit receipts for reimbursement. As such, reimbursement will be made based on the retail cost. Utilization Review may still be utilized to determine the reasonableness and necessity of the treatment plan and recommended “medicines and supplies.” However, Employers and TPAs are now responsible for reimbursing claimants for a broad array of non-prescription items including over-the-counter medications, dietary supplements, non-FDA approved analgesics and CBD Oil.
If a claimant seeks reimbursement, they will need to submit documentation that the physician has included the items in the treatment plan as well as a receipt for the purchase.
LIMITATIONS PERIOD
PAYMENT IN LIEU OF COMPENSATION
William Zeller v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 11, 2025
Issue:
Whether the E-time payments Claimant received were made in lieu of compensation for her work-related COVID, and Employer’s payment of E-time was an admission of liability, such that payment of E-time benefits estopped it from denying liability under the Act?
Background:
Claimant has been employed by the Employer as a police officer for approximately 18 years. He was diagnosed with COVID-19 in March of 2021 and he has not returned to work since that time. Employer designated Claimant’s first ten months out of work in its payroll system as “E-Time” and he received full pay without depleting his sick or vacation time. In January of 2022 Employer notified Claimant that if he remained out of work for an additional 60 days, he would need to use his sick and vacation time, which Claimant began using in March of 2022. On January 25, 2022, Employer issued a Notice of Workers’ Compensation Denial (NCD) denying liability for Claimant’s March 5, 2021 diagnosis of COVID-19 on the basis that there was no medical evidence supporting a work related exposure. Employer acknowledged in the NCD that Claimant gave notice of his COVID-19 diagnosis in March 2021, but denied that his alleged injury was work related. On March 2, 2022, Claimant filed Reinstatement and Penalty Petitions alleging that Employer unilaterally terminated benefits in January 2022 after it had accepted the claim for COVID-19 by paying him wages in lieu of benefits. Employer filed an answer to the petitions denying all allegations and averring that because it never accepted an injury, no benefits can be reinstated. The WCJ denied Claimant’s petitions. In doing so the WCJ noted that that is no evidence that Claimant specifically told any supervisor that he contracted COVID as a result of his job duties and that he was making a claim for WC benefits, and claimant acknowledged that he never made a claim for Injury on Duty (IOD) benefits. Further, E-Time was offered to all of Employer’s employees who missed time from work during the COVID pandemic for one of three reasons: because of the stay-at-home order; because of quarantine after exposure to the COVID-19 virus; and, after diagnosis with COVID-19. Therefore, E-Time was available to all city employees, without consideration of where exposure to the virus occurred. Therefore, these were not wages in lieu of compensation as Claimant did not provide notice to Employer within 120 days of contracting COVID in March 2021 that he believed he developed COVID at work and he did not request compensation for an alleged work-related injury. Furthermore, the E-Time benefits were paid to all of Employer’s employees out of work due to COVID whether the condition was work-related or not. The Board affirmed.
Holding:
Payments in lieu of compensation are voluntary or informal compensation, apart from the Act, paid with the intent to compensate for a work-related injury. It is the intent of the payment, not the receipt thereof, which is relevant. However, here the Employer did not intend its payments to Claimant under the E-Time designation, which was applicable to all employees who were diagnosed with COVID-19, to replace WC benefits for a work-related injury. Employer’s policies placed no restrictions on any employee or supervisor filing the standard work injury COPA II form when an injury was attributable to contraction of COVID-19. The record establishes Employer never paid Claimant wages in lieu of WC benefits by placing him on E-Time status.
Affirmed.
Tyra Deveaux v. City of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 28, 2025
Issue:
Whether the E-time payments Claimant received were made in lieu of compensation for her work-related COVID, and Employer’s payment of E-time was an admission of liability, such that payment of E-time benefits estopped it from denying liability under the Act?
Background:
Claimant is employed by Employer as a police officer. Claimant was diagnosed with COVID-19 (COVID) on March 25, 2020. On that day, she reported her diagnosis to her supervisor, Sergeant James Schuck. Claimant told Sergeant Schuck that she believed she contracted COVID at work. Claimant’s last shift was on March 16, 2020, and she has not returned to work since her diagnosis. Claimant was paid wage continuation benefits, referred to as “E-time.” Claimant stopped receiving E-time in March of 2022 and began using her accrued sick leave. Employer issued a Notice of Compensation Denial (NCD) on January 31, 2022. Claimant filed the instant Petitions, alleging that her benefits were unilaterally stopped after receiving wages in lieu of workers’ compensation benefits from 03/28/2020 to 03/05/2022. The WCJ denied Claimant’s Petitions. The Board affirmed.
Holding:
The Court noted recent court precedent, where it held, after an exhaustive analysis of the identical issues raised here, that this argument had no merit.
Affirmed.
IMPAIRMENT RATING EVALUATIONS
THE EVALUATOR’S OBLIGATION
Del Val Home Improvements v. John Gaw (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: March 19, 2025
Issue:
Whether the Board impermissibly disturbed the WCJ’s credibility determination by obscuring the WCJ’s opinion to implicate Duffey II?
Background:
Employer petitioned for review of a decision of the Appeal Board, which reversed an order of the WCJ granting Employer’s Modification Petition. The WCJ originally modified Claimant wage loss benefits from temporary total disability to temporary partial disability, after finding Claimant’s whole-person impairment rating to be 30%. The Board reversed after concluding that the WCJ’s determination improperly discredited an IRE that considered bodily impairments not described in the NCP, despite the Supreme Court’s holding in Duffey II. The Court vacated the Board’s order and remanded this matter to the Board with instructions to further remand to the WCJ to conduct a credibility assessment consistent with the opinion herein.
Holding:
In Duffey II, the PA Supreme Court held that a physician-evaluator must exercise his professional judgment to assess the claimant’s conditions, where the conditions were caused by or fairly attributable to the compensable injury. Section 306(a.3) of the Act affords a great deal of discretion in the physician-evaluator to determine what diagnoses are due to a work-related injury, outside the ordinary modification process. There is no evidence that any expert failed to exercise the discretion afforded to them under the Act. The WCJ simply committed an error by discrediting one of the IREs.
Vacated and Remanded.
APPEALS – SUFFICIENCY OF THE ALLEGATIONS
Bob Evans Restaurants LLC v. Robert Schriver (WCAB)
Commonwealth Court of Pennsylvania – Published Opinion
Decided: March 11, 2025
Issue:
Whether the Board erred in reversing the WCJ’s Decision granting the Review Petition, as Claimant’s notice of appeal was insufficient to provide notice to the Board and Employer of the issues upon which his appeal was based?
Background:
Claimant sustained a low back sprain while lifting restaurant booths for cleaning. Employer issued an amended NTCP. Claimant filed a petition to reinstate compensation benefits alleging that Claimant’s disability continued and resulted in a wage loss through no fault of his own. Claimant filed a penalty petition, alleging that Employer stopped payment of wage loss and medical benefits in violation of the Workers’ Compensation Act. Employer filed a review petition, alleging that Claimant’s disability compensation was based upon an incorrect average weekly wage. Employer alleged a bonus payment should have been prorated annually. The WCJ granted Claimant’s reinstatement petition and penalty petition against Employer for late payment of wage loss benefits. The WCJ granted Employer’s review petition. Claimant appealed to the Board. The Board ordered Claimant to file his brief by February 10, 2023. Claimant did not file a brief on or before that date. On February 16, 2023, Claimant filed an abeyance request without explanation; the Board granted the request. On March 1, 2023, Claimant filed a request to remove the case from abeyance status to allow for the submission of his brief. The Board removed the case from abeyance status but denied Claimant’s request to file a brief. The Board reversed the WCJ’s decision to reduce Claimant’s average weekly wage but affirmed the decision in all other aspects. The Board was unable to find the uploaded document or attachment referred to in Claimant’s notice of appeal. Nevertheless, the Board decided that the issue in Claimant’s appeal was the WCJ’s reduction in Claimant’s average weekly wage from $1,088.66 to $1,030.33. The Board noted that Claimant’s counsel raised that issue at oral argument, at which Employer’s counsel was given the opportunity to respond. Employer now appeals to this Court.
Holding:
Claimant’s notice of appeal to the Board did not identify the findings of fact which are challenged and the errors of the law which are alleged. Thus, Claimant’s notice of appeal to the Board failed to raise and preserve the issue that his average weekly wage should not have been adjusted by the WCJ. Because Claimant failed to challenge the WCJ’s revised average weekly wage in his notice of appeal with the Board, that issue cannot be considered by this Court. Claimant’s argument that the Employer has waived the waiver issue was rejected. A workers’ compensation proceeding is governed by the Department regulation that mandates the procedure for preserving an appeal to the Board. The Department’s regulation does not require the respondent to file a response to a Board appeal, let alone notify the Board of any deficiency in the appeal form. Claimant’s notice of appeal with the Board did not comply with 34 Pa. Code § 111.11(a)(2) because it did not state that the WCJ erred in reducing his average weekly wage. This regulation, which is binding on the Board, does not permit an appellant to wait until oral argument to identify the relevant issue or issues. As such, Claimant has waived all issues related to the WCJ’s decision, including the reduction of his average weekly wage.
Reversed.
SEASONAL EMPLOYMENT
DEFINITION AND WAGES
Jared Caldwell v. Towanda (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 26, 2025
Issues:
Whether the Board erred by holding that Claimant was a seasonal employee? Whether the Board should have reversed the WCJ’s reduction of counsel’s hourly rate?
Background:
Employer runs an overnight summer camp for children, which provides various outdoor activities. Claimant contracted with Employer to be an excursion director for ten weeks starting June 1, 2021. The parties’ contract required Claimant to supervise and live with a group of campers but did not specify any particular work duties. Instead, the parties’ contract obligated Claimant to perform any and all assigned duties, which may be modified by Employer. Claimant and Employer testified about their understanding of Claimant’s work duties as an excursion director. Although Employer generally agreed as to the duties. On June 16, 2021, Claimant was descending the rock-climbing tower when he fell approximately ten feet and injured his right back and right neck. The WCJ granted the claim petition, severe right neck pain and right leg radiculopathy. The WCJ reduced the hourly rate from $395 to $200, based on the WCJ’s personal knowledge of the prevailing hourly rates for workers’ compensation matters in northeastern Pennsylvania. The WCJ did not award statutory interest. The Board Affirmed.
Holding:
In support of his first issue, Claimant argues that although Employer was a summer camp, he was not a seasonal employee, because he could perform his job year-round “at a seasonal location.” Although the parties’ contract defined the length of Claimant’s employment, it did not specify Claimant’s work duties as an excursion director. Despite Employer’s general agreement with Claimant’s description of his work duties, the WCJ and Board, however, did not explain why Claimant could not perform his duties during a different season. Under the circumstances, the Court had to vacate the Board’s decision on this issue and remand to the Board to resolve whether Claimant is a seasonal employee based on the facts adduced at the WCJ hearing. As for counsel’s hourly rate, the Act provides that when an employer unreasonably contests a claim, the employe in whose favor the matter at issue has been finally determined in whole or in part shall be awarded a reasonable sum for costs incurred for attorney’s fees. The Act and regulations do not require an application or response. A WCJ must award attorney’s fees to a claimant who is victorious over an employer who has presented an unreasonable contest, whether the claimant asked for such fees or not. A WCJ also decides what constitutes a reasonable fee. If the WCJ disbelieves uncontradicted evidence of hourly rates in awarding fees, then the Court must review the WCJ’s order for a capricious disregard. The WCJ, rejected Claimant’s uncontradicted evidence of allegedly reasonable hourly rates and relied on his own personal knowledge of reasonable hourly rates for workers’ compensation matters in northeastern Pennsylvania. The WCJ was free to reject Claimant’s uncontradicted evidence. The Court vacated the Board’s decision to the extent it held that Claimant was a seasonal employee. The Court affirmed the Board’s affirmance of the WCJ’s calculation of Claimant’s counsel’s hourly rate based on the WCJ’s personal knowledge. Finally, the Court remanded to the Board with instructions to apply the appropriate legal framework set forth, which includes resolving whether an excursion director requires a seasonal overnight summer camp.
Vacated in part, Dismissed in part, Affirm in part, and Reverse in part, and Remanded.
FATAL CLAIM PETITION
CALCULATION OF BENEFITS
City of Philadelphia v. Larry Thompson (WCAB)
Commonwealth Court of Pennsylvania – Unpublished Memorandum Opinion
Decided: March 19, 2025
Issues:
Whether the Board erred in affirming the WCJ’s finding that Claimant filed a timely fatal claim petition? Whether the WCJ erred in calculating Claimant’s survivor benefits on the basis of Decedent’s earnings in 2010, as opposed to his earnings at the time of death?
Background:
In 2016, Claimant filed a fatal claim petition alleging that Decedent’s lymphoma, which caused his death in 2013, resulted from his work as a firefighter for Employer. The WCJ granted the petition, concluding that Decedent’s lymphoma was work related. Employer appealed, asserting that because the fatal claim petition was filed more than three years after Decedent’s date of death, it was untimely under Section 315 of the Act. The Board remanded the matter to the WCJ to determine whether Claimant’s petition was filed on May 6, 2016, or on June 7, 2016. In 2020, a different WCJ issued the remand decision. The WCJ found that the petition was electronically filed on May 6, 2016, which fell within three years of Decedent’s death; thus, the petition was timely under Section 315 of the Act. The WCJ also concluded that Claimant’s evidence established the prerequisites to the statutory presumption set forth in the Act. The WCJ ordered Employer to prepare a statement of wages using October 2010 as the date of injury and to begin paying Claimant 51% of Decedent’s average weekly wage, in no event to be less than 51% of the statewide average weekly wage for 2010. Employer appealed. The Board affirmed the WCJ’s decision.
Holding:
On remand before the WCJ, Claimant’s counsel produced a copy of a letter she sent to Employer, dated May 6, 2016, stating the filed claim petition was enclosed. A printout from WCAIS, titled “Claim Summary-External,” showed that the fatal claim petition was “received” on June 7, 2016. However, a business event log on WCAIS showed “petition filed” on May 6, 2016. The WCJ’s finding that Claimant filed her fatal claim petition electronically on May 6, 2016, is supported by substantial evidence, and the Board did not err in affirming the WCJ in this regard. Employer’s argument that Decedent’s wages should be calculated as of the date his disability arose in 2013, when he was diagnosed with cancer, employed by Presbyterian Hospital, resulting in a wage lower than the statutory presumption held no merit. A claimant in an occupational disease case is entitled to benefits calculated on the basis of his wages at the time of his last exposure to the occupational hazard. For the purpose of calculating benefits in occupational disease cases under the Act, the date of injury must be the date of last exposure. Decedent’s last date of exposure to the occupational hazard was October 2010, the WCJ properly directed the payment of benefits based on Decedent’s wage as of October 2010.
Affirmed.
ATTORNEY FEES
WHEN THE FEE APPLIES TO MEDICAL BILLS
Joshua N. Konzelman v. YHWH 3:5-6, LLC (WCAB)
Commonwealth Court of Pennsylvania – Nonpublished Memorandum Opinion
Decided: March 17, 2025
Issue:
Whether the Board erred in not approving the fee agreement’s 20% deduction from his medical bills for an attorney’s fee?
Background:
Claimant worked as a manager for YHWH 3:5-6, LLC (Employer), which operated a Chick-fil-A restaurant. Claimant sustained a work-related injury to his left knee, which was described in a Notice of Temporary Compensation Payable as a “Sprain or Tear [Internal derangement, a trauma or wrenching of a joint, producing pain and disability depending upon degree of injury to ligaments.]” Employer subsequently issued a Notice of Compensation Payable (NCP) that contained the same injury description. Claimant sought medical treatment and, ultimately, had two surgeries on his left knee. Claimant received wage loss benefits pursuant to the NCP until he returned to work, at which time the wage loss benefits were suspended. Claimant filed the Review Petition, seeking to add a low back injury he believed developed due to his left knee injury and/or the treatment thereof to the NCP. Claimant also filed a Petition to Review Medical Treatment (Medical Review Petition), asserting that Employer had not paid certain hospital or medical bills he claimed were for an emergency room visit that was due to his work-related injuries. The WCJ found that Counsel had failed to show that Claimant had a clear understanding of the financial effect of the approval of a 20% attorney fee on past and future medical bills, which were unspecified and speculative. Therefore, the WCJ denied the proposed 20% attorney fee on such bills. The Board Affirmed.
Holding:
Following Neves, Williams, and Elder, there is no longer any question that a 20% attorney’s fee on both indemnity benefits and medical benefits is per se reasonable and that concerns regarding a claimant’s potential liability to medical providers cannot be used to deny an attorney’s fee on medical benefits. However, Claimant must still establish his understanding that this fee agreement in particular covered both types of benefits and encompassed deductions of a 20% attorney’s fee for all medical benefits both outstanding and into the future. The fee agreement facially provides for the deduction of a 20% attorney’s fee on Claimant’s indemnity and medical benefits. Although Claimant argues his deposition testimony reflects his understanding that the fee would be applicable to all his medical benefits, the WCJ found otherwise. There was no error in that finding. Claimant, here, was asked only about the attorney’s fee as it related to his outstanding medical bills. The WCJ found that Claimant’s only clear understanding in the instant matter is that his attorney would receive 20% of the one outstanding hospital bill which was determined to be for medical treatment not related to the work injury. Claimant’s testimony, as the WCJ found, did not establish that understanding beyond the outstanding medical bill at issue, and, therefore, there was no error or abuse of discretion in the remand determination on this issue.
Affirmed.
PENNSYLVANIA LEGISLATIVE REVIEW
House Bill 183
Last month, the Commonwealth of Pennsylvania House Labor and Industry Committee passed what is now designated as HB 183. This Bill expands access to workers’ compensation disfigurement benefits by increasing the duration of eligibility from up to 275 weeks to a new level of up to 400 weeks, extending the benefit to the entire body, and not just to the head, face and neck, and allowing these benefits to be paid simultaneously with indemnity benefits. It is worthy of note that this bill was amended, just prior to passage in the Committee, to apply to injuries for which “permanent disfigurement was reached” after the effective date of the provision, whereas it was previously intended to only apply to injuries sustained on or after the effective date. As of March 25, 2025, the bill has been recommitted to the House Appropriations Committee.
NEW JERSEY LEGISLATIVE UPDATE
Assembly Bill 4750
Expands certain employer reporting requirements to include entities that employ or contract with individuals for financial compensation, including ridesharing and delivery technology platforms.
Last Action: January 14, 2025 – Received in the Senate, Referred to Senate Labor Committee
Assembly Bill 4371/S1943
Requires workers’ compensation, PIP, and health insurance coverage for the medical use of cannabis under certain circumstances.
Last Action: May 16, 2024 – Introduced, Referred to Assembly Financial Institutions and Insurance Committee
Assembly Bill 4283
Provides personal liability for owner, executive officer, or executive director of employer for failure to pay for workers’ compensation coverage.
Last Action: May 6, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 4559
Concerns certain workers’ compensation supplemental benefits and funding method.
Last Action: June 13, 2024 – Introduced, Referred to Assembly Labor Committee
Assembly Bill 2100
Provides workers’ compensation benefits for certain public safety workers who developed illness or injury as result of responding to September 11, 2001 terrorist attacks.
Last Action: September 19, 2024 – Reported out of Asm. Comm. With Amendments, and referred to Assembly Public Safety and Preparedness Committee
Senate Bill 3772
Concerns valuation of board and lodging with respect to workers’ compensation.
Last Action: December 5, 2024 – Referred to Senate Budget and Appropriations Committee
Senate Bill 794
Concerns workers’ compensation insurance requirements for certain corporations and partnerships.
Last Action: December 5, 2024 – Reported from Senate Committee as a Substitute, 2nd Reading
