Opinion
No. 640 C.D. 2014
10-15-2014
Fortimato Hernandez, Jr., Petitioner v. Workers' Compensation Appeal Board (Charles Brown Trucking Inc.), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Fortunato Hernandez, Jr., (Claimant) petitions for review of the March 14, 2014, order of the Workers' Compensation Appeal Board (WCAB) that affirmed in part and reversed in part the decision of a Workers' Compensation Judge (WCJ). Claimant appeals that portion of the WCAB's order reversing the WCJ's award of attorney's fees to Claimant because Charles Brown Trucking, Inc. (Employer) engaged in an unreasonable contest. We reverse.
On June 25, 2008, Claimant was involved in a motor vehicle accident while working for Employer. On July 9, 2008, Employer issued a temporary notice of compensation payable (NCP) describing Claimant as having injuries to his head, neck, left hand, and the area between his shoulders. Claimant started receiving benefits. (WCJ's Findings of Fact, 3/7/11, Nos. 1-3.)
The temporary NCP was later converted to an NCP.
On January 21, 2010, Claimant filed a penalty petition alleging that Employer refused to pay for reasonable and necessary medical treatment, which included transportation costs to medical appointments and related parking expenses. Claimant also requested attorney's fees for an unreasonable contest. (Id., No. 4.)
The WCJ conducted a hearing and found that Claimant, who lives in Limerick, Pennsylvania, treats with John P. Kohler, M.D., whose office is in Bala Cynwyd, Pennsylvania. The drive to Dr. Kohler's office takes one and one-half hours. (Id., No. 7a.) According to a report authored by Dr. Kohler, Claimant is able to drive locally for three to five minutes. However, due to the pain Claimant experiences while driving, it is medically necessary for Claimant to be driven to his appointments, because of the distance. (Id., No. 7a, b, d, e.)
Claimant also treats with Richard M. Sobel, M.D. Dr. Sobel is a pain management physician whose office is in Philadelphia, Pennsylvania, one hour and twenty minutes from Claimant's home. According to a report authored by Dr. Sobel, medical treatment for Claimant's work-related injury necessitates recurrent appointments. Further, Claimant requires transportation to these medical appointments because Claimant's condition prevents him from driving long distances. (Id., No. 8b.)
Based on Claimant's testimony, the WCJ found that Claimant no longer attends some of his medical and physical therapy appointments because he cannot drive long distances and the insurance company has refused his request for transportation costs. (Id., No. 5f, g, h.) Claimant tried to find medical treatment closer to home, but no one would accept him because of the workers' compensation. (Id., No. 5j.) Although Claimant's wife would sometimes take him to his appointments, Claimant testified that she had to stop taking him because she could no longer take time off from work. (Id., No. 5g.)
In support of his penalty petition, Claimant also introduced the deposition testimony of Donna Strinkowski, a workers' compensation specialist, who handles Claimant's account. Strinkowski approves or denies the medical bills and treatments associated with Claimant's claim. (Id., No. 6a, b, f.) Strinkowski acknowledged that she received notes from Claimant's treating physicians indicating that Claimant needs transportation to and from his medical appointments. However, "[s]he denied the transportation because of financial reasons and because she thought it was in the Claimant's best interest to treat closer to his house." (Id., No. 6f.)
The only evidence presented by Employer was a December 9, 2009, driving evaluation report. The report stated that Claimant passed the test. However, the report did not indicate how long Claimant can drive. (Id., No. 9a.)
The WCJ credited Claimant's testimony in its entirety, noting that his testimony was undisputed and supported by the medical records of Dr. Sobel and Dr. Kohler. (Id., No. 13.) The WCJ granted the penalty petition, determining that Employer violated section 306(f.1)(1)(i) of the Workers' Compensation Act (Act) by failing to reimburse Claimant for transportation costs to his medical appointments. The WCJ ordered Employer to pay a 50% penalty and awarded Claimant attorney's fees for an unreasonable contest. Employer appealed to the WCAB.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(1)(i).
On appeal, the WCAB determined that the record before it was incomplete because it did not contain the exhibits presented during the litigation of Claimant's penalty petition. The WCAB remanded the matter to the WCJ to complete the record and held the matter in abeyance pending receipt of the complete record. (WCAB Decision, 3/21/12, at 2, 3.) On July 31, 2012, the WCJ issued a decision reaffirming his previous decision granting Claimant's penalty petition and awarding Claimant attorney's fees.
The WCJ also considered a review petition filed by Claimant seeking to add conditions to his injury description. The WCJ granted the petition, Employer did not appeal, and that matter is not before us.
On appeal, the WCAB affirmed the WCJ's decision to grant Claimant's penalty petition based on Employer's refusal to pay for Claimant's transportation to treatment related to his work injury. The WCAB, citing Helen Mining Company v. Workmen's Compensation Appeal Board (Tantlinger), 616 A.2d 759, 762 (Pa. Cmwlth. 1992), concluded that exceptional circumstances prevented Claimant from receiving treatment unless Employer paid for the transportation. Specifically, the WCAB stated that "Claimant's physical inability to drive for the time required to reach his appointments, his lack of transportation through his wife, and his inability to find a closer physician constituted exceptional circumstances preventing him from receiving treatment for his work injury unless [Employer] pays for his transportation." (WCAB's Decision, 3/14/14, at 7.)
However, the WCAB reversed the WCJ's grant of attorney's fees. The WCAB concluded that Employer had a reasonable basis for contesting the penalty petition because Employer "presented evidence that Claimant could drive to some extent and could receive similar treatment closer to home by using public transportation to nearby facilities." (Id. at 9.) Claimant filed a petition for review claiming that the WCAB erred in reversing the WCJ's award of attorney's fees.
Our review is limited to determining whether constitutional rights were violated, an error of law was committed, or necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.
Initially, we observe that section 440(a) of the Act, 77 P.S. §996(a), provides that a successful claimant is entitled to an award of attorney's fees unless the employer meets its burden of proving that it had a reasonable basis for the contest. To prove a reasonable contest, the employer has to show that there was a conflict of evidence or that one could draw different inferences from the evidence of record. Wood v. Workers' Compensation Appeal Board (Country Care Private Nursing), 915 A.2d 181, 186 (Pa. Cmwlth. 2007). The reasonableness of the employer's contest, based on findings made by the WCJ, is a legal conclusion. Lemon v. Workers' Compensation Appeal Board (Mercy Nursing Connections), 742 A.2d 223, 228 (Pa. Cmwlth. 1999).
Section 440(a) was added by section 3 of the Act of February 8, 1972, P.L. 25. --------
In reversing the WCJ's award of attorney's fees, the WCAB concluded that "[w]here Claimant was able to drive some distance, similar services existed near his home, and the credibility of his inconsistent testimony was central to his case, there was a genuinely disputed issue as to whether the transportation he had requested was compensable." (WCAB Decision, 3/14/14, at 9-10.) Based on the WCJ's findings, we conclude that the WCAB erred in its determination that Employer engaged in a reasonable contest.
Initially, we observe that the WCJ found "Claimant's testimony credible in its entirety. Significant in this credibility determination is that Claimant's testimony is undisputed." (WCJ's Findings of Fact, 3/7/11, No. 13.) The WCJ found that Claimant investigated whether similar medical treatment was available near his home. (Id., No. 5j.) However, "[Claimant] has been unable to find treatment closer to his house because no one will accept him because of workers' compensation." (Id.) Although the WCAB determined that Claimant inconsistently testified that he did not treat locally because local doctors wanted to give him pills, (WCAB Decision, 3/14/14, at 9), the WCJ did not make a finding to this effect. As previously stated, the WCJ found that Claimant could not receive treatment closer to home because doctors would not accept him as a patient due to his workers' compensation coverage. Thus, contrary to the WCAB's determination, Claimant's testimony was not inconsistent.
We reiterate that the reasonableness of an employer's contest is based on the WCJ's findings. Lemon, 742 A.2d at 228. Contrary to the WCAB's conclusion, there was neither a conflict in the evidence, nor could different inferences be drawn from the WCJ's findings of fact. As such, Employer did not engage in a reasonable contest.
Accordingly, we reverse that portion of the WCAB's order that reversed the WCJ's decision awarding Claimant attorney's fees and affirm the remainder of the WCAB's order.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 15th day of October , 2014, we hereby reverse the March 14, 2014, order of the Workers' Compensation Appeal Board insofar as it reverses the decision of the workers' compensation judge to award Fortunato Hernandez, Jr., attorney's fees. We affirm the remainder of the WCAB's order.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge