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IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Scott Kline,

:

Petitioner :

:

v.

: No. 2191 C.D. 2004

:
Workers' Compensation Appeal
:
Board (Buffalo Valley Construction), :

Respondent :
Buffalo Valley Construction,
:

Petitioner :

:

v.

: No. 2220 C.D. 2004

: SUBMITTED: February 11, 2005
Workers' Compensation Appeal
:
Board (Kline),

:

Respondent :

BEFORE:
HONORABLE JAMES GARDNER COLINS, President Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE ROBERT SIMPSON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE LEADBETTER

FILED: April 13, 2005

Scott A. Kline and his employer, Buffalo Valley Construction, cross
petition for review of the order of the Workers' Compensation Appeal Board
(Board). The Board concluded that Buffalo Valley did not violate the Workers'
Compensation Act1 in failing to reimburse Kline for prescription shampoo and

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1 1041.4; 2501 2626.

lotion because Kline did not submit his reimbursement request on the forms
prescribed under the Medical Cost Containment Regulations at 34 Pa. Code §§
127.201 127.203. Therefore, the Board reversed the order of the Workers'
Compensation Judge (WCJ) granting Kline's penalty petition. In his petition, Kline
challenges this conclusion. In its cross-petition, Buffalo Valley recognizes that the
Board's order apparently reversed the WCJ's decision in its entirety. Nevertheless,
because the Board did not specifically address in its opinion the WCJ's finding of a
causal connection between the work injury and the need for prescription shampoo
and lotion, as a matter of precaution, Buffalo Valley reasserts its challenge to the
sufficiency of evidence supporting that finding.

In July of 1991, while working at a construction site for Buffalo
Valley, Kline fell, struck his head and sustained an epidural hematoma that
required emergency surgical treatment. In a notice of compensation payable,
Buffalo Valley acknowledged liability for temporary total disability benefits. In
1994, the parties agreed to commute benefits and Kline accepted a lump sum
payment of $50,000.00. At that time, Buffalo Valley stipulated that it remained
liable for the cost of causally related medical care. In July of 2003, Kline
petitioned for the imposition of a penalty based upon Buffalo Valley's failure to
reimburse him for the cost of special shampoo and lotion prescribed for a scalp
condition (seborrheic dermatitis) that Kline reports began about one month after
the skull surgery to drain the hematoma.

Before the WCJ, Buffalo Valley asserted that the skin condition for
which a dermatologist prescribed the shampoo and lotion is unrelated to the 1991
head injury. Buffalo Valley also asserted that Kline failed to submit his claim for
reimbursement on the forms and with the supporting documentation that is
2

required under the Act and associated regulations. Finally, the company also
asserted that the claim was outside the three-year statute of limitations under
Section 315 of the Act, as amended, 77 P.S. § 602, because Kline requested
reimbursement more than three years after Erie's last payment for medical
expenses related to the injury. Rejecting each of these contentions, the WCJ found
that Kline's testimony and two letters submitted by him, one from his
dermatologist and one from his general family practitioner, established the causal
relationship between the scalp dermatitis and the work injury. The WCJ further
found that Buffalo Valley's previous practice of paying Kline's medical expenses
without requiring the submission of the forms and reports required under the
regulations excused Kline's failure in this instance to submit his claim for
reimbursement on the requisite forms. Finally, the WCJ found that Buffalo Valley
failed to meet its burden to show that Kline's claim was time barred. Based upon
these findings, the WCJ concluded that Buffalo Valley violated the Act in refusing
to pay for the shampoo and lotion. Therefore, the WCJ ordered that Buffalo Valley
pay Kline on a continuing basis for the prescribed items and assessed a twenty
percent penalty on past due amounts.

Buffalo Valley appealed to the Board challenging the sufficiency of
evidence supporting a causal relationship, asserting that the WCJ erred in excusing
Kline's failure to submit the requisite forms, and reasserting the bar of the statute
of limitations. The Board opined that, inasmuch as Kline requested payment
without submitting the requisite forms, Buffalo Valley did not violate the Act in
failing to reimburse him. Based on this conclusion alone, the Board reversed.
Thereafter, Kline appealed, arguing the regulations apply only to providers, not the
claimant/patient and that, in any event, Buffalo Valley violated the Act when it
3

failed to either object to the form of the reimbursement request or promptly pay. In
its cross-appeal, Buffalo Valley reasserts its challenge to the sufficiency of the
evidence supporting the finding of a causal relationship, and alternatively
challenges the WCJ's authority to determine causation in the context of the present
penalty petition, asserting that the issue can only be decided in the context of a
review petition. Buffalo Valley also reasserts its contention that Kline's claim for
reimbursement is time barred. 2

In order to prevail on his claim for penalties, Kline bore the burden to
establish that Buffalo Valley violated the Act or the rules and regulations issued
pursuant thereto. See Section 435 of the Act, as amended, 77 P.S. § 991(d). See
also Dow v. Workers' Comp. Appeal Bd. (Household Finance Co.), 768 A.2d
1221, 1226 (Pa. Cmwlth. 2001). Kline failed to meet this burden in two respects.

First, insofar as Buffalo Valley is only obligated to pay for treatment
of the work injury, the existence of a causal relationship between the condition
treated and the work injury must be apparent or proven in order to determine

2 The limitations period imposed under Section 315 of the Act does not apply to the present
request for reimbursement of medical expenses. Section 315 is a statute of repose that prescribes
the time in which a claimant must establish employer's liability for a work injury in the first
instance or suffer the extinguishment of rights under the Act. It simply does not apply where the
employer has accepted liability. See Dime Trust Safe Deposit Co. v. Philadelphia & Reading
Coal & Iron Co., 78 Pa. Super. 124, 1921 WL 2398 *6 (1921). Cf. Fuhrman v. Workmen's
Comp. Appeal Bd. (Clemens Supermarket), 515 A.2d 331 (Pa. Cmwlth. 1986) (discussing three
year statute of limitations in Section 434 of the Act, as amended, 77 P.S. § 1001). When liability
for the medical expenses associated with a work injury has been established, that liability ends
only upon agreement of the parties, the grant of a termination petition or a determination that the
expenses were not incurred for reasonable and necessary treatment. See Consolidated
Freightways v. Workmen's Comp. Appeal Bd. (Jester), 603 A.2d 291 (Pa. Cmwlth. 1992).
4

whether a violation has occurred.3 See DeJesus v. Workmen's Comp. Appeal Bd.
(Friends Hosp.), 623 A.2d 397, 400 (Pa. Cmwlth. 1993); Koszowski v. Workmen's
Comp. Appeal Bd. (Greyhound Lines, Inc.), 595 A.2d 697, 700 (Pa. Cmwlth.
1991). We are not confronted here by the situation where an employer that has
regularly paid for medical care associated with the work injury later unilaterally
ceases to do so on the ground that the claimant has fully recovered or that payment
is sought for unreasonable or unnecessary treatment. Relief from liability under
those circumstances must be the subject of either a termination petition, as in
Consolidated Freightways v. Workmen's Comp. Appeal Bd. (Jester), 603 A.2d 291
(Pa. Cmwlth. 1992), or a utilization review petition, as in Loose v. Workmen's
Comp. Appeal Bd. (John H. Smith Arco Station), 601 A.2d 491 (Pa. Cmwlth.
1991). Here, many years after his injury, Kline requests reimbursement for the
treatment prescribed by a dermatologist for his dry, itchy, flaky scalp condition
that bears no apparent relation to the epidural hematoma for which he required
surgery and for which Buffalo Valley accepted liability. Generally, where a causal
relationship is not apparent, as is the case here, expert medical testimony is
required. See Miller v. Workers' Comp. Appeal Bd. (Airborne Freight), 817 A.2d
1200, 1203 (Pa. Cmwlth. 2003). The record contains no such medical testimony.
Rather, Kline testified that the skin condition arose within approximately one
month after surgery for his head injury. He also submitted two letters, one from his
family physician and one from the dermatologist, both stating no more than that
Kline needs the medications, which have been effective in treating his condition.

3 For this reason, there is no merit in Buffalo Valley's contention that the WCJ should not
have determined the causal relationship between the prescriptions and the work injury in the
context of the penalty petition.
5

None of this evidence addresses whether Kline's skin condition is causally related
to the traumatic head injury or the surgical treatment thereof. Kline has failed to
prove the threshold fact that triggers Buffalo Valley's obligation to pay for the
prescriptions and, therefore, he has failed to establish that Buffalo Valley's failure
to pay violated the Act so as to justify the imposition of a penalty. See Listino v.
Workmen's Comp. Appeal Bd. (INA Insurance Co.), 659 A.2d 45, 47 (Pa. Cmwlth.
1995).

Second, Kline admitted that he demanded reimbursement based solely
on copies of his pharmacy receipts. Both the Act and the regulations require more
than the mere submission of receipt copies. Section 306(f.1)(2) of the Act directs:
Any provider who treats an injured employe shall be
required to file periodic reports with the employer on a
form prescribed by the department which includes, where
pertinent, history, diagnosis, treatment, prognosis and
physical findings. The report shall be filed within ten
(10) days of commencing treatment and at least once a
month thereafter as long as treatment continues. The
employer shall not be liable to pay for such treatment
until a report has been filed.

77 P.S. § 531(2). Section 127.201(a) of Title 34 of the Pennsylvania Code directs
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. If HCFA accepts a form for
submission of Medicare claims by a certain provider, that form shall be acceptable
for billing under the act." In addition, Section 127.203 directs, in pertinent part,
that:
(a) Providers who treat injured employes are required to
submit periodic medical reports to the employer,
6

commencing 10 days after treatment begins and at least
once a month thereafter as long as treatment continues. If
the employer is covered by an insurer, the provider shall
submit the report to the insurer.

. . . .
(c) The medical reports required by subsection (a) shall
be submitted on a form prescribed by the Bureau for that
purpose. . . .
(d) If a provider does not submit the required medical
reports on the prescribed form, the insurer is not
obligated to pay for the treatment covered by the report
until the required report is received by the insurer.

34 Pa. Code § 127.203. Hence, generally the obligation to pay claimed medical
expenses does not begin to run until submission of the required forms and reports.
See Westinghouse Elec. Corp. v. Workers' Comp. Appeal Bd. (Burger), 838 A.2d
831, 839 (Pa. Cmwlth. 2004).

While Kline is correct that the regulations address claims by providers
rather than patients and his difficulty in submitting the forms is understandable,
nevertheless in situations such as this where a claimant seeks reimbursement for
his out of pocket expenses, at the very least his doctor(s) must submit the periodic
medical report(s) required by the Act and the regulations. In the absence of this
report, the relationship between the pharmacy receipts submitted for
reimbursement and treatment for the work injury would not necessarily be apparent
to employer or its insurer.4 Kline's doctor(s) did not submit the required medical

4 Insofar as Buffalo Valley's insurer may have previously paid certain medical expenses
without first receiving the physician reports or forms required under the cost containment
regulations, this provides no basis for excusing compliance with respect to the instant claim for
reimbursement. In the years initially following Kline's injury, the currently applicable
regulations had not yet been enacted; they became effective approximately four years after Kline
sustained his work injury.
7

reports and, therefore, Buffalo Valley cannot be said to have violated the Act when
it failed to pay for prescription shampoo and lotion to treat a skin condition that
bore no obvious relation to the traumatic head injury for which it had
acknowledged liability.

Accordingly, we affirm.

________________________________________

BONNIE
BRIGANCE
LEADBETTER,
Judge
8