Griffiths v. Workers' Compensation Appeal Board

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. Unlike the majority, I agree with David Griffiths (Claimant) that Seven Stars Farm, Inc. (Employer) is responsible for the $18,000 purchase price of Claimant’s 2000 Ford Windstar Van (Van) as well as 100% of the $10,000 cost to retrofit the Van to make it wheelchair-accessible and the full cost for two months of van rental.1

*431Claimant received disability benefits from Employer after being struck by a bale of hay, sustaining injuries that rendered Claimant a quadriplegic. Subsequently, Claimant filed a penalty petition alleging that Employer violated the Workers’ Compensation Act2 (Act) by failing to pay for reasonable and necessary quadriplegic accessible transportation. Fortunately, while this case was being litigated, Claimant was able to borrow money from a family friend that allowed him to purchase the Van, which Claimant then had retrofitted to make it wheelchair-accessible.

Before the workers’ compensation judge (WCJ), the parties stipulated that there were three issues for resolution: (1) whether Claimant is entitled to reimbursement for the purchase price of the Van; (2) whether Claimant is entitled to reimbursement for 100%, or only 80%, of the cost to retrofit the Van; and (3) whether Claimant was entitled to 100%, or only 80%, of the cost of the van rental. By decision and order dated April 30, 2002, the WCJ concluded that the modifications to make the Van wheelchair-accessible constituted an expense for “orthopedic appliances” under Section 306(f.l)(l)(ii) of the Act.3 (WCJ’s Conclusions of Law, No. 1.) In addition, the WCJ concluded that a reasonable cost to purchase the Van itself was also recoverable by Claimant. (WCJ’s Conclusions of Law, No. 3.) With regard to the cost containment issue, the WCJ concluded that section 306(f.l)(3)(i) of the Act limits the charges of a health care provider, and, because no health care provider was involved, Claimant is not limited to 80% reimbursement; rather, he could recover the reasonable actual cost of converting the Van for wheelchair accessibility and could recover all rental fees. (WCJ’s Conclusion of Law, No. 2). Accordingly, the WCJ granted Claimant’s penalty petition and ordered Employer to pay the full cost of the Van, the retrofitting and the rental charges.

Employer appealed to the Workers’ Compensation Appeal Board (Board), which affirmed in part and reversed in part. Relying on Petrilla v. Workmen’s Compensation Appeal Board (People’s Natural Gas), 692 A.2d 623 (Pa.Cmwlth.1997), the Board held that Employer was not hable for the purchase price of the Van. However, the Board affirmed the WCJ’s decision that the costs to retrofit the Van and the van rental were not limited by the cost containment provision of the Act. Both parties petitioned this court for review.

In ruling on Claimant’s petition for review, the majority affirms the Board. The majority reasons that this result is dictated by Petrilla, which holds that the term “orthopedic appliance,” for which an employer is responsible under section 306(f.l)(l)(ii) of the Act, refers to the equipment needed to retrofit a van to make it wheelchair-accessible but does not include the cost of the van itself. *432However, the majority reverses the Board’s determination that Employer must reimburse Claimant for the total cost of retrofitting the Van and for two months of van rental. For the following reasons, I believe that Employer is responsible for the original purchase price of the Van pursuant to section 306(f.l)(l)(ii) of the Act, which requires an employer to pay for “orthopedic appliances,” and that Petrilla should be overruled. Further, I believe that section 306(f.l)(l)(i) of the Act does not apply to limit Employer’s payment obligation for the retrofitting and rental costs.

I. Petrilla should be overruled

In Petrilla, this court held as a matter of first impression that an employer is not liable for the cost of a van that is necessary for the transportation of a paraplegic; instead, an employer only has to pay for the retrofitting of a van to make it wheelchair-accessible (assuming the claimant can afford a van). Although we could distinguish Petrilla by treating the quadriplegic here differently from the paraplegic in Petrilla, such a distinction is not tenable; neither the claimant in Petrilla nor Claimant here could obtain medical treatment without the medically prescribed van and thus, from a mobility standpoint, these situations are indistinguishable.

I agree with Senior Judge Mirarchi’s dissent in Petrilla, wherein he relied on the case of Rieger v. Workmen’s Compensation Appeal Board, 104 Pa.Cmwlth. 42, 521 A.2d 84 (1987). In Rieger, the paraplegic claimant was awarded benefits for a spinal cord injury that cost him the use of his legs. This court held that the employer had to pay for modifications to the claimant’s home and for hand-control modifications to his vehicle to enable him to drive because, if employer were allowed to refuse to pay these bills, the remedial nature of the Act would be frustrated. After concluding that a wheelchair was an orthopedic appliance for the paraplegic claimant, Judge Colins stated in Rieger that: “[I]f a wheelchair is necessary, then it logically follows that minor modifications needed to facilitate the use of the appliance must also be considered a necessity.” Id. at 87. In his dissent in Petrilla, Judge Mirachi stated,

[a]s in Rieger, if the [cjlaimant’s injuries make it impossible to leave his home, the remedial nature of the Act would be frustrated by a failure to provide a onetime expenditure. I, therefore, conclude that the van requested by [cjlaimant in this matter falls within orthopedic appliances under Section 306(f).

Petrilla, 692 A.2d at 628 (Mirarchi, S.J., dissenting).

The Petrilla case created a situation whereby a claimant with enough money can purchase a van and get it retrofitted by paying 20% of the retrofit. However, another paraplegic claimant who is immobile due to a work-related accident but who does not have the money to buy a van that can accommodate a wheelchair and the equipment necessary to lift that wheelchair into the van is left immobile and trapped inside his home, unable to even obtain medical care, let alone participate in the activities he once participated in before his injury.

This disparity between the claimant in Rieger, who could receive benefits to allow him to become mobile beyond 200 feet, and the claimant in Petrilla, who was refused benefits for a retrofitted van that would have allowed him to become mobile, is untenable and contrary to the humanitarian purposes of the Act; thus, it should not be followed here where the more catastrophic situation of this quadriplegic Claimant must be considered. Further, the similarity between Rieger and Claim*433ant here is readily recognizable in view of the fact that, for a quadriplegic claimant totally immobilized as a result of a work-related injury, a retrofitted wheelchair-accessible van is the equivalent of a big motorized wheelchair with a steering wheel. This motorized wheelchair Van is necessary orthopedic equipment to allow Claimant to traverse the public roads to enjoy a minimum quality of life as he struggles to obtain the medical treatment necessary to keep him alive. It enables Claimant to become “mobile,” although to a ridiculously limited extent in comparison to his mobility before being injured while serving Employer. In the discussion portion of his decision, the WCJ concluded that,

[wjithout a van, with retrofitting for wheelchair accessibility, this paraplegic [sic] Claimant is confined to his home due to the work injury; limited, if not totally precluded, even as to obtaining medical attention, since this family had no other vehicles to enable Claimant to get to medical appointments, and transportation was not provided by the Carrier.

(WCJ’s decision at 4.) Thus, without a van, Claimant would not have been able to travel to his doctor’s office for necessary medical treatment or to the store to purchase the necessities of life. Moreover, he would lose the little bit that is left of his quality of life by being unable to participate in the many other activities outside the home that he enjoyed before the work-related accident. The legislature certainly intended that any claimant who, like Claimant here, proves that such restrictions on his life were caused by his services to his employer is entitled to the full benefits of the Act. The mere fact that Claimant was able to borrow the purchase price of the Van from a friend should not distinguish him from a similarly situated claimant without such a friend.

Furthermore, the majority in Petrilla was concerned that requiring an employer to provide a vehicle could be a burdensome expense. History, however, does not support such a concern. Petrilla was the first appeal in this Commonwealth of a dependent paraplegic seeking the use of a retrofitted van, and, in the seven year period since Petrilla, the present case apparently is the only other such case. Fortunately, isolated, catastrophic injuries are extremely rare and hardly the normal risk to be calculated as a burdensome expense. Moreover, pursuant to section 306(f.l)(l)(i), all medical services are required to be reasonable. I believe this provides sufficient protection to employers.4

Accordingly, I would hold that a wheelchair-accessible van is an “orthopedic appliance” under Section 306(f.l)(l)(ii) of the Act, and I would require Employer to pay Claimant for the Van itself in addition to the costs to retrofit the Van.

II. The cost containment provisions of the Act are inapplicable

Section 306(f.l)(l)(i) of the Act provides, in relevant part, that:

(l)(i) The employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers ....

77 P.S. § 531(l)(i) (emphasis added). The cost containment provisions are found in Section 306(f.l)(3)(i) of the Act, which provides that:

*434(3)(i) For purposes of this clause, a provider shall not require, request or accept payment for the treatment, accommodations, products or services in excess of one hundred thirteen per cen-tum of the prevailing charge at the seventy-fifth percentile; one hundred thirteen per centum of the applicable fee schedule, the recommended fee or the inflation index charge; one hundred thirteen per centum of the DRG payment plus pass-through costs and applicable cost or day outliers; or one hundred thirteen per centum of any other Medicare reimbursement mechanism, as determined by the Medicare carrier or intermediary, whichever pertains to the specialty service involved, determined to be applicable in this Commonwealth under the Medicare program for comparable services rendered. If the commissioner determines that an allowance for a particular provider group or service under the Medicare program is not reasonable, it may adopt, by regulation, a new allowance. If the prevailing charge, fee schedule, recommended fee, inflation index charge, DRG payment or any other reimbursement has not been calculated under the Medicare program for a particular treatment, accommodation, product or service, the amount of the payment may not exceed eighty per centum of the charge most often made by providers of similar training, experience and licensure for a specific treatment, accommodation, product or service in the geographic area where the treatment, accommodation, product or service is provided.

77 P.S. § 531(3)(i) (emphases added).

The Board reasoned that the cost containment provisions of the Act do not apply in this case because the services of retrofitting the Van and renting a van were not provided by a health care provider. I would agree. When section 306(f.l)(3)(i) references providers, it is referencing health care providers. As such, the intent of this section is to limit the charges of medical services provided by health care providers. A wheelchair-accessible van is a “medical service” because it allows the injured and immobile claimant to become mobile. However, it is not a medical service provided by a health care provider. As such, the medical cost containment provisions of section 306(f.l)(3)(i) would not apply to the expense for this “orthopedic appliance,” the cost of which is provided for in section 306(f.l)(l)(ii).

Therefore, I would affirm that portion of the Board’s order which affirmed the WCJ’s decision ordering Employer to pay the total cost to retrofit the Van and the van rental for two months. In addition, I would reverse that portion of the Board’s order which reversed the WCJ’s decision requiring Employer to pay for the cost of the Van itself. Like the WCJ, I would hold that Employer must pay the entire cost of the retrofitted, wheelchair-accessible Van and the van rental charges without any reduction under the cost containment provisions of the Act.

Judge PELLEGRINI joins in this dissent.

. The parties stipulated that Claimant purchased the Van for $18,000 and that the Van was retrofitted to make it wheelchair-accessible for another $10,000. In addition, Claimant paid $2,085.09 for wheelchair-accessible van rental from December 22, 2000, to January 20, 2001, and paid $1,968 for wheelchair-accessible van rental from January 21, 2001, to February 19, 2001. Employer reimbursed Claimant for 80% of the cost to retrofit the Van and 80% of the van rental cost. In this regard, I would note that Employer clearly is *431not prejudiced by the result I would reach here. Consider that Employer has agreed that is responsible for 80% of Claimant's cost to rent a van and that Claimant’s van rental costs appear to average $2,000 monthly. Therefore, Employer would have to reimburse Claimant approximately $1,600 a month, or $19,200 a year. Thus, spending $18,000 on a Van that would last Claimant for many years would appear to be a prudent course for Employer to take.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2626.

. 77 P.S. § 531(l)(ii). That section provides in pertinent part, "In addition to the above service, the employer shall provide payment for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses in accordance with this section.” 77 P.S. § 531(l)(ii) (emphasis added).

. In this case, the WCJ already determined that the cost of the Van and the retrofitting was reasonable, and Employer does not challenge this determination. Therefore, we would not need to remand this case to the WCJ for findings on this issue.