IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Larry Clippinger, :
Petitioner :
: No. 948 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (Department of Transportation), :
Respondent :
:
:
Commonwealth of Pennsylvania, :
Department of Transportation :
and Inservco Insurance Services, :
Petitioners :
: No. 1053 C.D. 2015
v. :
: Submitted: January 15, 2016
Workers’ Compensation Appeal :
Board (Clippinger), :
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE DAN PELLEGRINI, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: June 8, 2016
In these consolidated cross-appeals, Larry Clippinger (Claimant) and the
Department of Transportation (Employer) take issue with the May 20, 2015 order of
the Workers’ Compensation Appeal Board (Board), which affirmed in part, vacated
in part, and reversed in part a decision of a Workers’ Compensation Judge (WCJ).
Background
The pertinent facts and procedural history of this case are as follows.1 In
1992, Claimant sustained a low back injury while working for Employer, specifically
spinal stenosis and a herniated disc at the L4-5 region. Claimant suffered permanent
impairment from the waist down, including partial paralysis, weakness, loss of
sensation, difficulty with balance, and partial bowel and bladder dysfunction.
Claimant strains to stand up, his muscles do not respond, and he does not have any
feeling in his legs. Claimant is able to walk with a cane, but he must use ankle braces
if he is walking on uneven ground. Claimant’s lack of feeling in his feet make it
difficult for him to transition from smooth to rough surfaces when walking. Claimant
has trouble with the start-up motion of getting out of a chair because of a lack of
feeling in his legs, and he needs to grab onto a handrail until he can get his cane.
Claimant’s physician recommended that Claimant obtain a therapeutic
pool with a treadmill, which would allow his body to be in the water as he exercises
and uses his legs. Claimant’s physician stated that the pool would help manage
Claimant’s pain. He further determined that aquatic therapy is reasonable and
necessary and causally related to Claimant’s work injury, and he should perform
aquatic therapy five days a week, one hour at a time, for the rest of his life.
In May 2008, Claimant filed a penalty petition, alleging that Employer
refused to pay medical bills related to the treatment of his work injury, including bills
for physical therapy and prescriptions. Claimant also filed a petition to review
medical treatment and/or billing, alleging that Employer refused to pay medical bills
1
This recitation derives predominately from our opinion in Department of Transportation v.
Workers’ Compensation Appeal Board (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
2
for the treatment of his work injury and seeking payment for the installation of an
aquatic therapy pool at his home.
In September 2008, Claimant filed a utilization review (UR) request,
seeking review of the reasonableness and necessity of a HydroWorx home fitness
pool, which has a treadmill at the bottom, and the construction of an additional room
to house it. In the UR determination, William Spellman, M.D., found that the
HydroWorx home fitness pool and the construction of an additional room to house it
was reasonable and necessary, but only if alternative means were not available.
Employer subsequently filed a petition for review of the UR
determination, seeking review of the reasonableness and necessity of a home fitness
pool and an addition to Claimant’s house.
The WCJ determined that the installation of a HydroWorx home fitness
pool in Claimant’s home, along with the necessary renovations to install the pool,
was reasonable and necessary. The WCJ also determined that Employer did not
present competent medical evidence to justify its failure to pay for Claimant’s
prescriptions or for the installation of a physical therapy pool in Claimant’s home;
consequently, the WCJ awarded Claimant a 50% penalty and attorney’s fees for an
unreasonable contest. The Board thereafter affirmed and the matter was appealed to
this Court. Department of Transportation v. Workers’ Compensation Appeal Board
(Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011).
On appeal, this Court vacated the WCJ’s decision insofar as it ordered
Employer to pay Claimant for a HydroWorx home fitness pool and for penalties and
attorney’s fees related thereto. In doing so, we noted that “[t]he WCJ made several
findings that installation of an in-home pool was preferable to Claimant performing
aquatic therapy at a public facility for reasons of safety, accessibility and, to some
3
extent, convenience.” Id. at 1044.2 However, we concluded that “these findings by
themselves do not justify installation of a new in-home HydroWorx pool at
Claimant’s home and a new addition to house it.” Id. at 1045.
2
Specifically, the WCJ found:
20. [Claimant’s physician] testified it is reasonable and medically
necessary for a Hydrowor[x] pool to be installed in Claimant’s home,
rather than using a public facility, because it would provide more
benefit and be safer.
***
22. At public facilities, Claimant has difficulty navigating from
where he must park his car to his destination inside the facility
because of: uneven surfaces; rough and smooth surfaces; walking up a
grade; distance; and, slippery conditions.
23. Public aquatic therapy facilities are busy with other patients not
aware of Claimant’s disabilities, creating a danger someone might
bump him, or he might try to move out of the way quickly, causing a
fall and severe injury[.]
24. Claimant has trouble changing his clothes in the locker room of a
public facility because he can’t bend normally and there is no one to
assist with his socks and shoes.
25. The floor from the pool to the locker room at public facilities is
sometimes wet and slippery, which places Claimant at risk of falling.
26. Aquatic therapy takes Claimant 2 1/2 to 3 hours per day to do at a
public facility, including travel time.
27. Claimant has only been getting 3 sessions of aquatic therapy per
week at a public facility.
28. A fitness pool in Claimant’s home would benefit him more than
at a public facility because he could use it more often.
29. For safety purposes, Claimant’s wife would be with him when he
used the Hydrowor[x] pool at home.
(Footnote continued on next page…)
4
Critically, this Court remanded to the WCJ for further fact-finding
because the WCJ, among other things, failed to properly evaluate “the existence of
alternative means.” Id. We stressed that installation of a pool is considered to be
“highly extraordinary relief.” Id. at 1044. We determined that the pool must be an
“indispensable device” and concluded that case law dictates that there be no
reasonable alternative. Id. We also determined that the record in this case
demonstrated that “a viable alternative to a new in-home pool exists,” particularly the
fact that Claimant has been receiving aquatic treatment three days a week at Conforti
Physical Therapy (Conforti). Id. at 1046.
However, this Court agreed with the WCJ that Employer engaged in an
unreasonable contest to the extent it refused to pay for Claimant’s prescriptions and
we remanded to the WCJ “for a reconsideration of the unreasonable contest attorney
fee award based solely on Employer’s failure to pay Claimant’s prescriptions.” Id. at
1050.
At the remand hearing, Claimant testified that he continues to take
aquatic treatment at Conforti three days a week, instead of the physician-prescribed
five days a week, because the pool is usually booked or scheduled. Claimant further
testified that there are other pools available but he could not get into them because of
his back injury. Claimant noted that there was another Conforti therapy pool close to
where he lives and explained that this particular pool is a “group pool” and that there
(continued…)
30. If the Hydrowor[x] fitness pool were installed in Claimant’s
home, non-slip material could be used on the floor, together with
hand-railings.
Clippinger, 38 A.3d at 1044 n.4.
5
are no safety or hand rails. Claimant stated that with the exception of Conforti, there
are no pools in the immediate area that have a treadmill installed on the bottom.
Nonetheless, Claimant testified that, at Conforti, he has “continually received the
same treatment and [at] the same duration from 2008 through January 2013.”
(Reproduced Record (R.R.) at 130a-31a, 167a-68a, 170a.)
Claimant’s attorney also submitted an itemized statement detailing the
amount of work and attorney’s fees with respect to Employer’s failure to pay
Claimant’s prescriptions as mandated by Clippinger. In addition, Claimant’s attorney
submitted an itemized statement detailing the amount of work and attorney’s fees
with respect to Employer’s failure to pay Claimant’s physical therapy bills post-
Clippinger for sessions that Claimant had at Conforti. (R.R. at 207a-20a.)
In a decision dated October 30, 2013, the WCJ found Claimant’s
testimony to be credible in its entirety. From this determination, the WCJ found that
“[t]here are no reasonable alternative means for Claimant to receive adequate aquatic
therapy treatment other than the installation of a physical therapy pool in Claimant’s
home . . . .” (WCJ’s Finding of Fact at No. 88.)
The WCJ further found that Claimant’s attorney’s statement for
Clippinger-related attorney’s fees in the amount of $5,955.00 was overall reasonable
because the attorney has significant experience in workers’ compensation matters; the
hourly rate of $150.00 is “eminently reasonable;” and the 39.7 hours expended for
litigating Claimant’s unpaid prescriptions was reasonable given the multiple
medications and payments at issue. (WCJ’s Finding of Fact at No. 90.) Similarly,
the WCJ found that Claimant’s attorney’s fees for unpaid physical therapy bills at
Conforti, post-Clippinger, in the total amount of $10,605.00 for 70.7 hours of work
6
was reasonable and determined that Employer engaged in an unreasonable contest.
(WCJ’s Finding of Fact at No. 92; Conclusion of Law at No. 4.)
Accordingly, the WCJ concluded, among other things, that Employer
was obligated to pay for a HydroWorx fitness pool and alterations to Claimant’s
home, plus attorney’s fees.
On appeal, the Board reversed the WCJ’s determination that there are no
reasonable alternatives to a HydroWorx fitness pool. The Board explained:
New testimony demonstrates Claimant continues to engage
in aquatic therapy at a facility [i.e., Conforti] within a
reasonable distance from his home. This has remained the
status quo – both before and after the [Clippinger] court’s
review. Since the court’s remand, nothing has changed in
regard to Claimant’s ability to continue with aquatic
therapy. Without more, we cannot see how the new
testimony has overcome the [Clippinger] court’s concern
about whether the in-home pool and house addition qualify
as an “indispensable device,” let alone how it demonstrates
that alternative means of treatment are not available. Thus,
it does not appear that the pool and house addition are
reasonable and necessary under the conditional terms set
out in the UR determination . . . .
(Board’s decision at 8.)
The Board also concluded that the WCJ did not abuse his discretion in
awarding and calculating attorney’s fees. (Board’s decision at 10-14.)
Thereafter, Claimant and Employer filed appeals to this Court.3
3
Our standard of review in workers’ compensation appeals is limited to determining
whether an error of law was committed, whether constitutional rights were violated, or whether
necessary findings of fact are supported by substantial evidence. Fruehauf Trailer Corporation v.
Workers’ Compensation Appeal Board (Barnhart), 784 A.2d 874, 876 n.2 (Pa. Cmwlth. 2001).
7
Discussion
Claimant’s Appeal
In his appeal,4 Claimant argues that the Board erred in reversing the
WCJ’s decision requiring Employer to pay for a HydroWorx fitness pool and an
addition to his home because the WCJ’s decision was based upon substantial,
credible evidence. Pointing to the severe nature of his disability and the fact that he
is not receiving the amount of sessions at Conforti that his physician has prescribed,
Claimant contends the fitness pool is an indispensable device and that no reasonable
alternative exists. We are constrained to disagree.
It is beyond cavil that our decision in Clippinger is binding precedent.
See Germantown Cab Co. v. Philadelphia Parking Authority, 27 A.3d 280, 283 (Pa.
Cmwlth. 2011). Under the doctrine of the “law of the case,” where an appellate court
has considered and decided a question on appeal, that court will not, in a subsequent
appeal of another phase of the same case, reverse its previous ruling, even if the court
is convinced that the decision was erroneous. Farber v. Engle, 525 A.2d 864, 869 n.5
(Pa. Cmwlth. 1987).
In Clippinger, we noted that Claimant’s prescription stated that he
should perform aquatic therapy five days a week, id. at 1041, and that the WCJ found
that Claimant “has only been getting 3 sessions of aquatic therapy per week at a
public facility,” i.e., Conforti. Id. at 1044 n.4 (citation omitted). Nevertheless, this
Court concluded:
[H]ere a viable alternative to a new in-home pool exists.
Indeed, Claimant receives aquatic therapy treatment at a
nearby facility . . . . Moreover, in the UR determination, the
reviewer determined an in-home therapy pool was
4
Docketed at No. 948 C.D. 2015.
8
reasonable and necessary, ‘if alternative means were not
available.’ By Claimant’s own testimony, alternative
means exist.
Id. at 1044 (citations omitted).
Based upon the law of the case doctrine, we will not revisit the
Clippinger court’s legal determination that Claimant’s three-day a week sessions at
Conforti constitute a reasonable alternative to an in-home fitness pool. As the Board
correctly observed, Claimant’s testimony at the remand hearing established that he
has continued to do the same amount of treatment at Conforti as he did when
Clippinger was decided. (R.R. at 167a-68a.) Being bound by Clippinger, we have
no choice but to conclude that Claimant’s evidence demonstrates that his treatment at
Conforti is a viable and reasonable alternative to a HydroWorx fitness pool.
Moreover, Claimant did not adduce any evidence at the remand hearing to
demonstrate that his condition has deteriorated since Clippinger or that he is unable
to transport to and receive treatment at Conforti. Therefore, we conclude that the
Board did not err in reversing the WCJ insofar as the WCJ determined that there are
no reasonable alternative means for Claimant to receive aquatic therapy treatment.
Employer’s Appeal
In its appeal,5 Employer first contends that the Board and WCJ erred in
concluding that it engaged in an unreasonable contest by failing to pay bills, post-
Clippinger, for sessions at Conforti in a timely fashion.
Pursuant to section 440(a) of the Workers’ Compensation Act (Act), 77
P.S. §996,6 a WCJ shall award counsel fees in any case to an employee in whose
5
Docketed at 1053 C.D. 2015.
9
favor the matter has been finally adjudicated unless the employer provides a
reasonable basis for the contest. “Section 440 . . . is intended to deter unreasonable
contests of workers’ claims and to ensure that successful claimants receive
compensation undiminished by costs of litigation.” Eidell v. Workmen’s
Compensation Appeal Board (Dana Corp.), 624 A.2d 824, 826 (Pa. Cmwlth. 1993)
(citation omitted).
Under section 306(f.1)(5) of the Act, 77 P.S. §531(5), payment for
medical expenses must be made within thirty days of receipt of the bills. The issue of
whether an employer’s contest is reasonable is a legal conclusion based on the WCJ’s
findings of fact. Yespelkis v. Workers’ Compensation Appeal Board (Pulmonology
Assocs. Inc.), 986 A.2d 194, 200 (Pa. Cmwlth. 2009).
In its decision, the Board ably disposed of Employer’s argument as
follows:
[W]e cannot agree the WCJ erred in finding [Employer]
unreasonably contested the issue of late payment of
physical therapy bills. [A witness’s] credible testimony
established that [Conforti’s] bills were submitted with the
required HCFA and LIBC-9 forms and treatment notes.
[Employer] argues that a cumbersome payment
arrangement among Conforti, [insurance networks, and
Employer] led to delays in payment . . . . Nevertheless,
credible evidence shows that payments were not received
for well in excess of the thirty days mandated by the Act.
(Board’s decision at 12; see WCJ’s Findings of Fact at Nos. 64-78.)
(continued…)
6
Act of June 2, 1915, P.L. 736, as amended. Section 440(a) of the Act was added by the
Act of February 8, 1972, as amended.
10
Here, Employer did not contest the reasonableness or necessity of the
Claimant’s physical therapy bills at Conforti. Although Employer presented evidence
attempting to explain its systematic processing delay in paying Claimant’s bills, this
testimony does not in any way excuse its obligation to make those payments in a
timely manner. See Hough v. Workers’ Compensation Appeal Board (AC&T
Companies), 926 A.2d 1173, 1182 (Pa. Cmwlth. 2007) (upholding award of
unreasonable contest attorney’s fees when the provider submitted appropriate
documentation and the employer failed to pay medical bills within thirty days).
Consequently, we agree with the Board that the WCJ did not err in determining that
Employer engaged in an unreasonable contest.
Employer further argues that Claimant’s attorney’s itemized statements
regarding attorney’s fees impermissibly intermingled fees for work associated with
the HydroWorx fitness pool.
When attorney fees are assessed against an employer under section 440
of the Act, those fees were limited by the General Assembly to that amount
representing “a sum . . . related to the work actually done by the attorney. . . .”
Eugenie v. Workmen’s Compensation Appeal Board (Sheltered Employment Service),
592 A.2d 358, 361-62 (Pa. Cmwlth. 1991) (citation omitted). “The amount of fees to
be allowed to counsel, always a subject of delicacy if not difficulty, is one peculiarly
within the discretion of the court of first instance.” Id. at 362 (citation omitted).
“[The trial court’s] opportunities of judging the exact amount of labor, skill and
responsibility involved . . . are necessarily greater than ours, and its judgment should
not be interfered with except for plain error.” Id. (citation omitted).
Here, Claimant’s attorney’s itemized statements detail the time and
nature of his work. In fact, the statements separate the work performed for
11
Employer’s untimely payments for prescription and physical therapy bills from the
work performed for the fitness pool, with the latter being lined-out or struck through.
(R.R. at 207a-20a.) Contrary to Employer’s assertions, there is nothing on the face of
the statements to indicate that Claimant’s attorney included work devoted to the
fitness pool as part of his request for attorney’s fees. Given this record, Employer’s
argument is entirely speculative and has no concrete support in the record. Therefore,
we conclude that the WCJ did not abuse his discretion in determining the amount of
attorney’s fees owed to Claimant’s attorney.
Conclusion
Based on the foregoing, we conclude that the Board did not err in
reversing the WCJ’s order to the extent it required Employer to pay for an in-home
fitness pool. We further conclude that the Board did not err in affirming the WCJ’s
determination that Employer engaged in an unreasonable contest and in calculating
the amount of attorney’s fees. Accordingly, we affirm the Board’s order.
________________________________
PATRICIA A. McCULLOUGH, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Larry Clippinger, :
Petitioner :
: No. 948 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (Department of Transportation), :
Respondent :
:
Commonwealth of Pennsylvania, :
Department of Transportation :
and Inservco Insurance Services, :
Petitioners :
: No. 1053 C.D. 2015
v. :
:
Workers’ Compensation Appeal :
Board (Clippinger), :
Respondent :
ORDER
AND NOW, this 8th day of June, 2016, the May 20, 2015 order of the
Workers’ Compensation Appeal Board is affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge