S. Rivera v. WCAB (Dart Container) (Majority Opinion)

Annotate this Case

Download PDF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sandra Rivera, Petitioner v. Workers Compensation Appeal Board (Dart Container), Respondent BEFORE: : : : : : : : : No. 1804 C.D. 2007 Submitted: January 11, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY SENIOR JUDGE McCLOSKEY FILED: February 15, 2008 Sandra Rivera (Claimant) petitions for review of an order of the Workers Compensation Appeal Board, affirming a decision of a Workers Compensation Judge (WCJ), which denied and dismissed the penalty petitions filed by Claimant against Dart Container (Employer). We now affirm. Claimant sustained three, separate work-related injuries in the course and scope of her employment with Employer. The first injury, in the nature of bilateral carpal tunnel syndrome, occurred on December 26, 2001. The second injury, in the nature of low back pain, occurred on March 10, 2004. The third injury, in the nature of a left wrist injury and left shoulder adhesive capsulitis, occurred on August 6, 2004. With respect to the second injury on March 10, 2004, Claimant had filed a claim petition in May of 2004. This petition was assigned to the WCJ for disposition. By interlocutory order dated March 4, 2005, the WCJ approved a stipulation of facts whereby Employer acknowledged Claimant s low back injury and Claimant acknowledged Employer s right to a suspension as of May 25, 2004, based upon her return to work with no loss of wages. Nevertheless, the parties agreed to continue the matter before the WCJ to determine whether Employer was entitled to a termination of benefits as of September 22, 2004.1 Ultimately, the WCJ concluded that Employer failed to meet its burden of proof entitling it to a termination of Claimant s compensation benefits with respect to this injury. Further, the WCJ specifically directed Employer to continue to pay Claimant s medical expenses incurred in connection with her injury of March 10, 2004. (R.R. at 53a). The WCJ decision in this regard was circulated on June 24, 2005. Approximately four months later, on October 6, 2005, the parties executed a stipulation in the nature of a compromise and release agreement with respect to all of Claimant s injuries. Pursuant to this agreement, Employer paid Claimant a lump sum of $35,000.00 as satisfaction of any and all past, present and future indemnity, specific loss and/or medical benefits arising in connection with the Claimant s work-related injuries of December 26, 2001, March 10, 2004 and August 6, 2004. (R.R. at 40a). Employer further agreed to pay all reasonable and necessary medical expenses causally related to the work related injuries ¦incurred from the date of injury through the date of the hearing for the approval of the Compromise and Release Agreement. 2 Id. Further, Employer reserved the right to process, re-price and pay all bills pursuant to the 1 This termination was premised on the report of Dr. Elliot Sterenfeld, who performed an independent medical examination of Claimant on said date. Dr. Sterenfeld opined in his report that Claimant had fully recovered from her low back injury as of the date of his examination. 2 However, with respect to the August 6, 2004, left wrist and shoulder injury, Employer agreed to keep the medical benefits open for a period of one year from the date of said approval hearing. Additionally, Employer agreed to reimburse Claimant for her out-of-pocket expenses incurred through the date of the approval hearing which were related to her work injuries. 2 Pennsylvania Workers Compensation Act[3] ¦. (R.R. at 40a-41a). By decision circulated October 7, 2005, the WCJ approved the compromise and release agreement as executed by the parties. Subsequent to the WCJ s approval of this agreement, Claimant began receiving bills from certain medical providers which had not been paid by Employer. Counsel for Claimant sent several letters to Employer s workers compensation manager, Julie Shay, with copies of the unpaid bills, requesting that the same be paid. Employer apparently did not respond to these letters. On March 14, 2006, Claimant filed three, separate penalty petitions, one for each of her injuries, alleging that Employer had violated the Act by failing to pay her medical expenses associated with these injuries in accordance with the October 6, 2005, compromise and release agreement. Claimant sought penalties in the amount of fifty percent (50%) of the unpaid medical bills. Employer filed an answer to each of the petitions denying the allegations therein. The cases were consolidated for purposes of hearing and disposition by the WCJ. In support of her penalty petitions, Claimant presented copies of the WCJ s decision circulated June 24, 2005, denying Employer s termination petition as well as the WCJ s decision circulated October 7, 2005, approving the parties compromise and release agreement. Additionally, Claimant introduced copies of numerous letters sent by her counsel to both Employer s counsel and Ms. Shay, which included copies of the outstanding medical bills. In opposition to Claimant s penalty petitions, Employer presented a notarized affidavit from Ms. Shay which addressed each of these outstanding bills. 3 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2626. 3 With respect to these bills, Ms. Shay indicated that certain bills were only recently submitted on the proper forms and the same have been paid, certain bills have never been submitted on the proper forms or submitted with the appropriate medical records for which she has requested the same, certain bills are being processed and certain bills represent an improper attempt by the medical providers to balance bill, i.e., submit a bill to Claimant for the difference between the original amount of the bill and the amount paid by Employer following re-pricing under the Act.4 Ms. Shay further noted in this affidavit that upon receipt of the proper forms and appropriate medical records, the outstanding medical bills will be re-priced and paid accordingly. Ultimately, the WCJ issued a decision and order denying and dismissing Claimant s penalty petitions. The WCJ concluded that Claimant had not met her burden of proving that Employer had violated the Act. In reaching this conclusion, the WCJ found the statements set forth in the affidavit of Ms. Shay to be credible and worthy of belief. The WCJ noted that Ms. Shay s statements regarding the failure of the medical providers to submit the proper forms and/or medical records were undisputed. The WCJ also noted that Ms. Shay s statements regarding the attempts by certain providers to balance bill were consistent with the bills submitted by Claimant. Finally, the WCJ found that the present case was distinguishable from two cases relied upon by Claimant, Westinghouse Electric Corporation v. Workers Compensation Appeal Board (Weaver), 823 A.2d 209 (Pa. Cmwlth. 2003), petition for allowance of appeal denied, 581 Pa. 694, 864 A.2d 531 (2004) and Shaffer v. Workmen s Compensation Appeal Board (Avon Products, Inc.), 692 A.2d 1163 (Pa. Cmwlth.), petition for allowance of appeal denied, 549 Pa. 731, 702 A.2d 1062 (1997). 4 Section 306(f.1)(7), 77 P.S. §531(7), expressly prohibits such balance billing by medical providers. 4 As opposed to these two cases, the WCJ noted that in the present case, there was no itemization of medical bills in the compromise and release agreement approved on October 7, 2005, nor did he order that specific medical bills be paid. Claimant filed an appeal with the Board but the Board affirmed. Claimant thereafter filed a petition for review with this Court. On appeal,5 Claimant argues that the WCJ and the Board erred as a matter of law in failing to conclude that Employer violated the Act thereby entitling her to an award of penalties. We disagree. Section 435(d) of the Act6 provides for the imposition of penalties against an employer or an insurer for violations of the Act and/or its rules and regulations. This Section further provides that the penalty shall not exceed ten percent (10%) of the award plus interest, with an increase to fifty percent (50%) in cases of unreasonable or excessive delays. See Section 435(d)(i) of the Act, 77 P.S. §991(d)(i). The burden is on a claimant to establish such a violation. Sims v. Workers Compensation Appeal Board (School District of Philadelphia), 928 A.2d 363 (Pa. Cmwlth. 2007). Nevertheless, even where there is a violation of the Act, the imposition of a penalty is not automatic. Brutico v. Workers Compensation Appeal Board (US Airways, Inc.), 866 A.2d 1152 5 Our scope of review in a workers compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. Further, in Leon E. Wintermyer, Inc. v. Workers Compensation Appeal Board (Marlowe), 571 Pa. 189, 812 A.2d 478 (2002), our Supreme Court held that review for capricious disregard of material, competent evidence is an appropriate component of appellate consideration in every case in which such question is properly brought before the court. Wintermyer, 571 Pa. at 203, 812 A.2d at 487. 6 Added by Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §991(d). 5 (Pa. Cmwlth. 2004), petition for allowance of appeal denied, 584 Pa. 679, 880 A.2d 1240 (2005). Rather, it is within the discretion of the WCJ to impose penalties. Id. In other words, [t]he assessment of penalties, as well as the amount of penalties imposed, is discretionary, and absent an abuse of discretion by the WCJ, this Court will not overturn a penalty on appeal. Westinghouse Electric Corporation, 823 A.2d at 213. An abuse of discretion is not merely an error of judgment but occurs, inter alia, when the law is misapplied in reaching a conclusion. Westinghouse Electric Corporation, 823 A.2d at 213-14. Generally, an employer or insurer has thirty (30) days from receipt of a bill for medical treatment to make payment to a provider, unless it disputes the reasonableness or necessity of such medical treatment. See Section 306(f.1)(5) of the Act, 77 P.S. §531(5). However, this same Section indicates that a medical provider shall submit bills and records in accordance with the provisions of this section. Id. Section 306(f.1)(2) of the Act requires any provider who treats an injured employee to submit periodic reports to an employer on a prescribed form. 77 P.S. §531(2). This requirement is reiterated in Section 127.203(a) of the Medical Cost Containment Regulations (the Regulations), 34 Pa. Code §127.203(a). Additionally, Section 127.201(a) of the Regulations provides that [r]equests for payment of medical bills shall be made either on the HCFA Form 1500 or the UB92 Form (HCFA Form 1450), or any successor forms, required by HCFA for submission of Medicare claims ¦. 34 Pa. Code §127.201(a). The Regulations further provide that the failure to submit the proper forms or file the periodic reports relieves an employer or insurer of its obligation to pay for the medical treatment until such forms or reports are received. See 34 Pa. Code §§127.202(a), 127.203(d). 6 We have relied on these Sections of the Act and the Regulations in affirming a Board decision concluding that claimant had failed to establish that employer violated the Act in refusing to pay for medical treatment as a result of the failure of a medical provider to submit the proper forms and reports. See Sims. Nevertheless, the Act and the Regulations are not without exceptions. For example, we have previously upheld the award of a penalty where a medical provider failed to submit the proper forms and reports but the employer or insurer had previously paid similar bills without the necessity of such forms and reports. See Seven Stars Farm, Inc. v. Workers Compensation Appeal Board (Griffiths), 935 A.2d 921 (Pa. Cmwlth. 2007); Kuemmerle v. Workers Compensation Appeal Board (Acme Markets, Inc.), 742 A.2d 229 (Pa. Cmwlth. 1999). We have also upheld the award of a penalty where an itemized list of the medical bills to be paid was included in an earlier WCJ decision which was not appealed. Westinghouse Electric Corporation. In the present case, Claimant relied on our decision in Westinghouse Electric Corporation before the WCJ and the Board. However, we believe the WCJ and the Board properly distinguished the present case on its facts, i.e., neither the WCJ s prior decision circulated on June 24, 2005, regarding Claimant s low back injury nor the compromise and release agreement executed on October 6, 2005, directed the payment of any specific medical bills. In fact, the latter agreement specifically reserved Employer s right to process and re-price the bills in question, which, as noted by the Board, was the underlying purpose of the filing requirements of Section 306(f.1)(2) of the Act. Ms. Shay, in her affidavit before the WCJ, addressed each of Claimant s outstanding medical bills. Specifically, Ms. Shay noted that certain bills had been paid, that certain bills represented an improper attempt by the medical provider to balance 7 bill and others remained unpaid due to the failure of the medical provider to submit the proper forms and reports. The WCJ accepted the affidavit of Ms. Shay as credible. While Claimant established that Employer did indeed fail to pay certain bills within the required thirty days, the credible evidence of record reveals that Employer was not obligated to pay these bills as a result of the failure of the medical providers to meet the requirements of the Act and the Regulations.7 Claimant presents a further argument in her brief to the extent that Employer s reservation of a right in the compromise and release agreement to process and re-price the work-related medical bills does not provide it with an open-ended time period for doing so. While we generally agree with Claimant in this regard, neither the Act nor the Regulations impose a specific time deadline upon Employer to fully resolve outstanding medical bills which have not been submitted via the proper forms and reports.8 It appears that the remedy herein rests with the General Assembly or the Bureau of Workers Compensation in the form of an amendment to the Act or a revision of the Regulations. Based upon the limited facts of this case, we cannot say that the WCJ or the Board erred as a matter of law in failing to conclude that Employer violated the Act or the Regulations such that Claimant was entitled to an award of penalties. 7 Claimant failed to raise an issue before the WCJ, the Board or this Court as to Employer s procedure with respect to the medical bills that had been paid prior to the execution of the compromise and release agreement. 8 We note that the Regulations do provide a remedy in the nature of the filing of an application for fee review with the Bureau of Workers Compensation. See Section 127.251 of the Regulations, 34 Pa. Code §127.251. 8 Finally, Claimant argues that the WCJ and the Board erred as a matter of law in failing to award her unreasonable contest attorney fees.9 We disagree. Section 440 of the Act10 only provides for an award of unreasonable contest attorney fees to a claimant who was successful in whole or in part below. As we determined above that neither the WCJ nor the Board erred in failing to award Claimant penalties, Claimant was not successful below. Hence, Claimant was not entitled to unreasonable contest attorney fees under Section 440. Accordingly, the order of the Board is affirmed.11 JOSEPH F. McCLOSKEY, Senior Judge 9 Employer contends that Claimant waived this argument by failing to raise this issue before the WCJ or the Board. However, contrary to Employer s contention, it appears from the record that Claimant properly raised and preserved this issue below. For example, in his Findings of Fact and Conclusions of Law, the WCJ specifically noted that Employer s contest of Claimant s penalty petitions was reasonable. Furthermore, in her appeal to the Board, Claimant specifically challenged this finding and conclusion by the WCJ. 10 Added by Act of February 8, 1972, P.L. 25, as amended, 77 P.S. §996(a). 11 We note that subsequent to the submission of briefs by the parties, Claimant filed a motion for oral argument before this Court. Employer filed an answer objecting to Claimant s request for oral argument. Upon consideration of this motion and answer, said motion is denied. 9 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Sandra Rivera, Petitioner v. Workers Compensation Appeal Board (Dart Container), Respondent : : : : : : : : No. 1804 C.D. 2007 ORDER AND NOW, this 15th day of February, 2008, the order of the Workers Compensation Appeal Board is hereby affirmed. Further, the motion for oral argument filed on behalf of Sandra Rivera is hereby denied. JOSEPH F. McCLOSKEY, Senior Judge

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.