Citation861 A.2d 424
PartiesDavid GRIFFITHS, Petitioner v. WORKERS' COMPENSATION APPEAL BOARD (SEVEN STARS FARM, INC.), Respondent Seven Stars Farm, Inc., Petitioner v. Workers' Compensation Appeal Board (Griffiths), Respondent.
Decision Date10 November 2004
CourtCommonwealth Court of Pennsylvania

Matthew L. Wilson, Philadelphia, for petitioner.

Charles S. Katz, Jr., Philadelphia, for respondent.

BEFORE: COLINS, President Judge, and McGINLEY, Judge, PELLEGRINI, Judge, FRIEDMAN, Judge, LEADBETTER, Judge, COHN JUBELIRER, Judge, and LEAVITT, Judge.


David Griffiths (Claimant) seeks review of the Workers' Compensation Appeal Board's (Board) order that reversed the Workers' Compensation Judge's (WCJ) decision that ordered Seven Stars Farm, Inc. (Employer) to pay the purchase price of Claimant's 2000 Ford Windstar van (Van). At the same time, Employer seeks review of the order of the Board that affirmed the WCJ's decision that ordered Employer to pay 100% of the cost of retrofitting the Van to make it wheelchair accessible and the full cost of two months van rental. This Court has consolidated the two petitions for review.

On August 21, 2000, Claimant sustained a C-5 quadriplegia when he was struck by a bale of hay. Employer began paying total disability benefits. On or about January 26, 2001, Claimant petitioned for penalties and alleged that Employer violated the Workers' Compensation Act (Act)1 relative to the processing of medical expenses regarding a van rental and subsequent Van purchase that included a retrofit to make it wheelchair accessible.

Before the WCJ, the parties stipulated that Claimant purchased the Van for $18,000, the Van was retrofitted to make it wheelchair accessible for an additional $10,000, plus shipping and handling in the amount of $500. Also submitted into evidence was a bill for $2,085.09 for a wheelchair accessible van rental from December 22, 2000, to January 20, 2001, and a bill for $1,968.00 for a wheelchair accessible van rental from January 21, 2001, to February 19, 2001. The parties further stipulated that Employer reimbursed Claimant eighty percent of the cost of the conversion of the Van and eighty percent of the van rental cost.

The parties agreed that the issues before the WCJ were whether Claimant was entitled to reimbursement for the entire purchase price of the Van; whether Claimant was entitled to reimbursement for the entire conversion cost of the Van or only eighty percent of the conversion cost; and whether Claimant was entitled to reimbursement for the full cost of the van rental or only the eighty percent reimbursement made by Employer.2

The WCJ granted the penalty petition and ordered Employer to pay the full cost of the Van, the retrofitting required to make it wheelchair accessible, and the rental charges. The WCJ also assessed ten percent interest on all deferred payments and awarded Claimant counsel fees in the amount of ten percent of all wage loss benefits plus interest, with the fee chargeable against Claimant's share of disability compensation. The WCJ made the following conclusions of law:

1. The Employer/Carrier is responsible for `orthropedic [sic] appliances' under the Act. Section 306(f.1)(1)(ii). Modifications to the van to make it wheelchair accessible constitute an expense for `orthopedic appliances,' ....
2. The cost containment provisions of the Act, specifically, Section 306(f.1)(3)(i), limits [sic] the charges of a health care provider. Here, there being no health care provider involved, Claimant is not limited as to reimbursement, and may recover the actual cost required for conversion of the van for wheelchair accessibility, and for the rental fees.
3. A reasonable cost to purchase the van is recoverable under the circumstances of this case.
[Discussion]: Without a van, with retrofitting for wheelchair accessibility, this paraplegic 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.
Defendant's [Employer] obligation to pay for retrofitting is of no benefit unless the Claimant has a van. In turn, whether David Griffiths, or any other claimant in similar circumstances can obtain a van is dependent upon available resources. Here, the moneys to purchase were borrowed from a family friend.
Upon consideration of the specific special financial circumstances presented here ..., payment of a reasonable sum for purchase of the van itself is appropriate. Here, the additional expense, namely, the sum of $18,500 is reasonable [(cost of van and shipping without retrofitting)] (Citations and footnote omitted).

WCJ's Decision, April 30, 2002, Conclusions of Law Nos. 1-3 at 1-2; Reproduced Record (R.R.) at R7-R8.

Employer appealed to the Board and asserted that it was not responsible for the purchase price of the Van and that the WCJ erred when he did not limit Claimant's recovery of van rental expenses and the conversion costs of the Van to eighty percent. The Board affirmed in part and reversed in part. With respect to whether Employer was responsible for the purchase price of the Van, the Board reversed:

After a careful review of the record, the Board has determined that the WCJ erred in concluding that Defendant [Employer] is responsible for the purchase price of the base vehicle. The van itself is not an orthopedic appliance and, therefore, the Act does not require Defendant [Employer] to pay for it.... We reject the WCJ's attempt to distinguish Petrilla [v. Workmen's Compensation Appeal Board (People's Natural Gas), 692 A.2d 623 (Pa.Cmwlth.1997)] based on Claimant's specific financial circumstances. As the WCJ acknowledged, Petrilla did not consider the claimant's financial circumstances and we do not see how the source of the funds that Claimant used to produce the van brings it within the definition of an orthopedic appliance. In Petrilla, the Commonwealth Court determined that the base price of a vehicle that is retrofitted for a claimant's use is not recoverable and we are bound by that determination.

Board Opinion, July 23, 2003, (Opinion) at 4; R.R. at R22. With respect to the van rentals and conversion costs, the Board affirmed:

The WCJ determined that Section 306(f.1)(3)(i) does not limit the amount of reimbursement because there was no health care provider involved....
After a careful review of the record, the Board has determined that the WCJ did not err in concluding that limits of Section 306(f.1)(3)(i) are inapplicable in the instant matter. Section 306(f.1)(3)(i) is directed to medical providers.... Because the transaction did not involve a health care provider within the meaning of that Act, Defendant [Employer] is required to reimburse Claimant 100 percent of costs of renting a van for two months and of making the purchased van wheelchair accessible. (Citations omitted. Footnotes omitted).

Opinion at 5-6; R.R. at R23-R24. Both parties petitioned for review with this Court.

I. Claimant's Petition for Review.

Claimant contends that the Board's determination that Employer is not required to pay the purchase price of the Van violated Claimant's right to equal protection of the law under the Fourteenth Amendment to the United States Constitution and under the Pennsylvania Constitution.3

Employer argues that Claimant waived the issue of this alleged violation because he neither raised it before the Board nor in his petition for review.

Employer is correct that Claimant failed to timely raise and preserve the issue. A constitutional issue may not be raised for the first time on appeal to this Court unless the question goes to the constitutionality of a statute. See Pook v. Commonwealth, State Board of Auctioneer Examiners, 735 A.2d 134 (Pa.Cmwlth.1999)

. Here, Claimant does not question the constitutionality of the Act rather Claimant asserts that the Board's application of the Act resulted in a denial of his right to equal protection under the law. The issue was not preserved before the Board.4

However, there is a question whether Petrilla v. Workmen's Compensation Appeal Board (People's Natural Gas), 692 A.2d 623 (Pa.Cmwlth.1997) is controlling or should be overruled. Section 306(f.1)(1)(i) of the Act, 77 P.S. § 531(1)(i), provides in pertinent part, "[t]he employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers, including an additional opinion when invasive surgery may be necessary, medicines and supplies, as and when needed."

Section 306(f.1)(1)(ii) of the Act, 77 P.S. § 531(1)(ii), provides in pertinent part, "In addition to the above services, the employer shall provide payment for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses in accordance with this section...." (Emphasis added). In Rieger v. Workmen's Compensation Appeal Board (Barnes & Tucker Company), 104 Pa.Cmwlth. 42, 521 A.2d 84 (Pa.Cmwlth.1987), this Court held that Barnes & Tucker Company, the employer of the injured worker, Richard Rieger (Rieger), was obligated to pay $433.02 for the remodeling of Rieger's home for the installation of bars and ramps to make the home wheelchair accessible and $359.34 for the installation of hand controls in Rieger's automobile. The Court determined that the alterations to Rieger's home and automobile constituted "orthopedic appliances" under Section 306(f)(4) of the Act, 77 P.S. § 531.5

In Petrilla, this Court addressed the question of whether a specially equipped van constituted an "orthopedic appliance" under the Act. Robert J. Petrilla (Petrilla), paraplegic as a result of a work-related injury, petitioned for review and alleged in part that People's Natural Gas (People's), his employer,...

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4 cases
  • Griffiths v. W.C.A.B., 148 MAP 2005.
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 19, 2008
    ...the Commonwealth Court reversed in part and affirmed in part, ruling in favor of Employer on both issues. Griffiths v. Workers' Comp. Appeal Bd. (Seven Stars Farm, Inc.), 861 A.2d 424 (Pa.Cmwlth. 2004). The majority deemed Petrilla to be controlling on the question of whether Employer was r......
  • Enterprise Rent-a-Car v. W.C.A.B. (Clabaugh), 863 C.D. 2007.
    • United States
    • Commonwealth Court of Pennsylvania
    • September 27, 2007
    ...of the Act applies to modifications and retrofitting as they are covered by the term "product." Griffiths v. Workers' Compensation Appeal Board (Seven Stars Farm, Inc.), 861 A.2d 424 (Pa. Upon review of the aforementioned, it is evident that Employer was indeed responsible for payment of th......
    • United States
    • Commonwealth Court of Pennsylvania
    • November 10, 2004
    ...... and also in Pennsylvania School Boards Ass'n, Inc. v. Zogby, 802 A.2d 6 (Pa.Cmwlth.2002). ......
  • Griffiths v. W.C.A.B., 1103 MAL (2004)
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 22, 2005
    ...STARS FARM, INC.). No. 1103 MAL (2004) Supreme Court of Pennsylvania. December 22, 2005. Appeal from the Commonwealth Court Pa.Cmwlth., 861 A.2d 424 Disposition of petition for allowance of appeal Granted (148 MAP ...

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