Dowty Corp. v. Workmen's Compensation Appeal Board

620 A.2d 41, 152 Pa. Commw. 467, 1993 Pa. Commw. LEXIS 3
CourtCommonwealth Court of Pennsylvania
DecidedJanuary 5, 1993
DocketNo. 2017 C.D. 1991
StatusPublished

This text of 620 A.2d 41 (Dowty Corp. v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dowty Corp. v. Workmen's Compensation Appeal Board, 620 A.2d 41, 152 Pa. Commw. 467, 1993 Pa. Commw. LEXIS 3 (Pa. Ct. App. 1993).

Opinion

McGINLEY, Judge.

Dowty Corporation (Employer) petitions for review of an order of the Workmen’s Compensation Appeal Board (Board) that modified a referee’s decision by holding that the referee could not authorize Employer to cease paying medical bills prior to the date of a referee’s decision that held those medical expenses to be unreasonable. We affirm.

Ronald J. McKelvey (Claimant) suffered a compensable injury in the nature of a left shoulder strain while working for Employer on June 23, 1985. Pursuant to a notice of compensation payable issued by Employer’s insurer, Claimant began receiving $183.80 in weekly compensation benefits. Following the injury, Claimant sought treatment from Leonard Merkow, M.D. (Dr. Merkow) a physician board-certified in anatomical and clinical pathology who currently practices internal medicine. Dr. Merkow treated Claimant several times a week since August 3, 1987. This treatment included injections of approximately twenty different drugs on a continuing or alternate basis, as well as physiotherapy, including ultrasound and heat therapy.

[470]*470On May 3, 1989, Employer filed a review petition challenging “items of medical expense submitted [by Claimant] and/or treatment related to injury of July 23, 1985, as being unreasonable, unnecessary or not caused by a work-related injury.” 1 In its review petition Employer also requested a supersedeas.2 After filing the review petition, Employer ceased paying the medical bills submitted by Dr. Merkow for Claimant’s treatment. Claimant filed an answer to Employer’s petition alleging that Employer unreasonably refused payment of his medical expenses. A hearing was held at which Employer presented the deposition testimony of J. William Book-waiter, III, M.D. (Dr. Bookwalter), a neurosurgeon. Dr. Bookwalter testified that Dr. Merkow’s treatment of Claimant was neither reasonable nor necessary. Claimant presented the deposition testimony of Dr. Merkow. He testified that his continuing treatment of Claimant was necessary to relieve Claimant’s pain.

The referee accepted Dr. Bookwalter’s testimony as credible and rejected Dr. Merkow’s testimony as not credible. As a result, the referee concluded that Dr. Merkow’s treatment was neither reasonable nor necessary and relieved Employer of its obligation to pay for Dr. Merkow’s treatment as of May 3, 1989, the date Employer’s petition was filed. Pursuant to our decision in Boehm v. Workmen’s Compensation Appeal Board (United Parcel Services), 133 Pa.Commonwealth Ct. 455, 576 A.2d 1163 (1990), the Board modified the referee’s decision by holding Employer liable for Claimant’s medical expenses until July 10, 1990, the date of the referee’s decision. Employer appeals.

On appeal, Employer alleges that application of the Boehm rule and requiring an employer pay for unreasonable [471]*471and unnecessary medical treatment until the date of a referee’s decision relieving such an obligation: (1) violates Employer’s constitutional right to due process of law; (2) violates Employer’s constitutional right to equal protection of the laws; (3) violates The Pennsylvania Workmen’s Compensation Act (Act);3 (4) creates inconsistent precedent; and (5) violates the rule against retroactive application of the law. Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether any necessary finding of fact is not supported by substantial evidence. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988).

Employer’s first contention is that applying the Boehm rule to the present case violates Employer’s constitutional right to procedural due process under the Fourteenth Amendment to the Constitution of the United States.4 In Boehm, this Court noted that a referee cannot authorize an employer to cease paying a claimant’s medical expenses prior to the date of the referee’s decision. 133 Pa.Commonwealth Ct. at 463, 576 A.2d at 1167. Employer contends that this rule deprives it of a substantial property interest, i.e. its money, without due process of law. However, this is not the first time this issue has been before us. In Department of Labor & Industry, Bureau of Workers’ Compensation v. Workmen’s Compensation Appeal Board (Commercial Union Insurance Co.), 137 Pa.Commonwealth Ct. 387, 586 A.2d 496 (1991), this Court determined that paid-out medical expenses determined to be unreasonable or unnecessary do constitute compensation which can be reimbursed from the supersedeas fund. Id. at 392, 586 A.2d at 499. In Commercial Union, we further noted, “Because the insurance companies can recoup from the fund, we do not need to address the constitutional due process issue.” Id. In the present case, Employer applied for a [472]*472supersedeas, which was denied by the referee. Accordingly, Employer is entitled to reimbursement from the supersedeas fund.

Again, in Adia Personnel Agency v. Workmen’s Compensation Appeal Board (Coleman), 137 Pa.Commonwealth Ct. 405, 586 A.2d 507 (1991), we concluded that because an insurer can be reimbursed for all unnecessary medical expenses, there is no need to address the issue of due process. Id. at 409, 586 A.2d at 509. Furthermore, Judge Doyle, in his concurring opinion in Adia, noted:

While Adia claims it has a property right in the funds it will expend for the challenged medical services, in my view these expenditures do not bring due process considerations into play as they are only the administrative costs attendant on doing business.

Id. at 413, 586 A.2d at 511. In view of our decisions in Commercial Union and Adia we conclude that requiring Employer to pay medical expenses until a referee determines that such expenses are actually unreasonable does not violate Employer’s due process rights.

Employer’s second contention is that applying the Boehm rule to the present case amounts to a denial of equal protection.5 Employer argues that employers, as a class, are treated differently under the Boehm rule than employees, as a class. Employer contends that successful employers are deprived of property without due process, a fundamental right, while successful and unsuccessful claimants suffer no such deprivation and receive payments for medical treatment even when the treatment is eventually adjudicated to be unreasonable and unnecessary.

However, as noted herein, payments of medical services under the Act are properly characterized as administrative costs of doing business in this state and do not bring due process considerations into play. Adia. We believe that [473]

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Related

Chevron Oil Co. v. Huson
404 U.S. 97 (Supreme Court, 1971)
Boehm v. Workmen's Compensation Appeal Board
576 A.2d 1163 (Commonwealth Court of Pennsylvania, 1990)
Russell v. Workmen's Compensation Appeal Board
550 A.2d 1364 (Commonwealth Court of Pennsylvania, 1988)
Glinka V.Workmens Compensation Appeal Board
521 A.2d 503 (Commonwealth Court of Pennsylvania, 1987)
Koszowski v. Workmen's Compensation Appeal Board
595 A.2d 697 (Commonwealth Court of Pennsylvania, 1991)
Johnson v. Workmen's Compensation Appeal Board
586 A.2d 991 (Commonwealth Court of Pennsylvania, 1991)
ADIA Personnel Agency v. Workmen's Compensation Appeal Board
586 A.2d 507 (Commonwealth Court of Pennsylvania, 1991)
King v. Workmen's Compensation Appeal Board
572 A.2d 845 (Commonwealth Court of Pennsylvania, 1990)
Commonwealth v. Workmen's Compensation Appeal Board
586 A.2d 496 (Commonwealth Court of Pennsylvania, 1991)

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620 A.2d 41, 152 Pa. Commw. 467, 1993 Pa. Commw. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dowty-corp-v-workmens-compensation-appeal-board-pacommwct-1993.