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Workers' Compensation News: Summer 2018

PA Workers' Compensation Cases of Note

By John W. Zatkos, Jr., Esq.

Medical providers Are Entitled to Due Process Under the Workers’ Compensation Act
In Armour Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (Nat’l Fire Ins. Co. of Hartford), a three-judge panel issued a precedential opinion that vacated an order from the Bureau of Workers’ Compensation on a fee review for the injured worker’s topical back pain medication. 
The worker injured his back in 1999 and, in 2000, he and the employer entered a Compromise and Release (C&R) agreement that settled the disability compensation but left the Employer responsible for the ongoing medical treatment. In 2015, the Employer requested a Utilization review regarding the topical medicine. The review found the medication was reasonable and necessary and the Employer did not appeal.
In 2016, the Employer refused to pay Armour Pharmacy nearly $6,600 for the medicine and produced a new C&R agreement (created three months after the $6644 was owed). The employer claimed the prescribing doctor had an interest in the pharmacy, making the prescription an unlawful self-referral. The pharmacy countered that they were not party to the agreement, which was executed after the medication was given.
The panel found no evidence that the prescribing doctor had an interest in the pharmacy. “The U.S. Constitution requires notice and an opportunity to be heard before property rights can be taken – in this case, from the pharmacy,” wrote Judge Mary Hannah Leavitt. “a [compromise and release] agreement, to which a provider is not a party, cannot be used to deprive a provider of the review procedures and excuse the employer from paying  the provider. To do so, would violate the [Workers’ Compensation] Act and due process.”
What does this mean? This is the first opinion in Pennsylvania that affirms that medical providers have due process rights within the workers’ compensation system and that their rights cannot be eliminated without notice. This sets precedence for future, similar cases.
Workers Are Only Entitled to Workers’ Compensation Benefits When They Are Injured During the Course and Scope of Employment
In Pridgen v. San-Pef Property Management, LLC (WCAB), the Workers Compensation Appeals Board (WCAB) affirmed that a worker who fell off a balcony while removing scrap metal for personal use from an employer-owned property, was not in the course of employment and therefore not eligible for Workers’ Compensation benefits.
James Pridgen was told he could take metal for scrap out of an apartment owned by his Employer. While doing so, he fell off a balcony and was injured. He filed for benefits and was denied. He appealed. In this case, the WCAB affirmed the judge’s ruling that while taking the scrap metal away may have benefited the Employer, ultimately, the worker was 1) off duty, 2) not being paid to perform the task, 3) was not required to engage in metal scrapping, and 4) the voluntary action of removing the scrap was for the worker’s personal gain. 
What does this mean? Simply being injured on an Employer’s property is not enough to qualify for Workers’ Compensation benefits. The worker must also be within the scope of his or her employment to merit benefits. 

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