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Home My WebLink About06-7087 .- ~ Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA Edward Clabaugh, v. Civil Action - Law Enterprise Rent-A-Car, Defendant N 01 - 707f1 cJJ; I +crf'\. 00 ~ PRAECIPE FOR ENTRY OF DEFAULT JUDGMENT PURSUANT TO SECTION 428 OF THE WORKERS' COMPENSATION ACT, 77 PoSo ~921 Pursuant to section 428 of the Workers' Compensation Act, 77 P.S. 921, enter judgment against Defendant in the amount of$46,976.80, together with interest from 1/12/2006, as specified by section 406.1 of the Workers' Compensation Act, based upon the following: 1. On 8/18/2006 Workers' Compensation Judge Brian G. Eader entered a decision ordering Defendant to pay home modification bills in the amount of $46,891.20, plus a penalty in the amount of 10% of the amount awarded, and litigation costs of$85.60. 2. Defendant's workers compensation carrier filed a timely appeal with the Workers' Compensation Appeal Board along with a request for supersedeas. The Workers' Compensation Appeal Board granted supersedeas as to the 10% penalty award, but denied supersedeas in all other respects. 3. By operation of section 4280fthe Workers' Compensation Act, Defendant is in default for failing comply with the order ofWCJ Eader within thirty (30) days of the date of the decision of the Workers' Compensation Judge. Respectfully submitted, Smigel, Anderson & Sacks, LLP Attorneys for Plaintiff BY&;V~ Fred H. Hait, ill # 34331 River Chase Office Center 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 ~.. ... Edward Clabaugh, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. Civil Action - Law Enterprise Rent-A-Car, Defendant No. () (p - 10~7 AFFIDA VIT I verify that I have personal knowledge of all facts not of record set forth in the foregoing Praecipe, and that such facts are true and correct, to the best of my knowledge, information, and belief. I acknowledge that any false statements herein are made subject to the penalties of 18 Pa. c.s. 4904, relating to unsworn falsification to authorities. Date I Jl7/ob &~~ Fred H. Hait (") ~ 2- = 0 ~:= (::~:J ~ or.>;:. 0-' -n ~ f" "'" c:::J ::;! (" - r1 ,,",'- .." ~ F' ~ (J 4 ~1 p.= f' I./' "~i'j~ - r d ..',.)0 ~ W , r ..",..; (~) ~ ~ r'" -\ t ~ C) ~ ....c: ~ CO ::) ~ '-I ):.. 0J p :-n CO -< -:t::.. -...: Received BWC 08/23/2006 .' 1 , , L TR-OOS REV 09/05100 CireulatiOD Date: 0811812006 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY WORKERS' COMPENSA nON omCE OF ADJUDICATION 717.783-4419 BRIAN EADER. HARRISBURG JUDGES OFFICE EAST GATB C&II',nsK 1010 NORTH SEVENTH STRBBT HARRISBURG PA 17102-1400 DECISION RENDERED COVER LEITER Bureau Claim Number: 2430247 Insurer Claim Number: 20020010056797 Injury Date: 07/31/2002 Petitions: Penalty-Pet EDWARD CLABAUGH 990 EPPLEY RD I\1ECHANICSBURG, PA 17055 FRED H HAlT ESQ SMIGEL ANDERSON & SACKS LLP RIVER CHASE OFFICE CTR 3RD FL 4431 N FRONT ST HARRISBURG, PA 17110 Judge: Brian Eader East Gate Center 1010 North Seventh Street Harrisbur~ PA 17102-1400 Vs The attached Decision of the Judge is final unless an appeal is taken to the Workers' Compensation Appell Board as provided by law. ENTERPRISE RENT A CAR 5523 CARISLE PIKE lvlECHANICSBURG, PA 17055 HARRY J KLUCHER ESQ PJETRAGALLO BOSICK & GORDON ONE OXFORD CENTRE 38TH FL 301 GRANT ST PITTSBURGH, PA 15219 FIDELITY & GUARANTEE INS CO A TTN KAREN BERNECHE 385 WASHINGTON STREET, MC 508P ST PAUL, MN 55102 FRANK. GATES SERVICE CO BCONWAY 3 GATEWAYCTR4 WEST PITTSBURGH, PA 15222 If you do not agree with this Decision, an appeal must be filed with the Workers' Compensation Appeal Board within 20 days from but not including the date of this notice. Forms for an appeal may be obtained from the Workers' Compensation Appeal Board, Capital Associates Building 901 North Seventh S~eet Third Floor South Harrisburg, PA 17102 OPEN o SUSPENDED D UNKNOWN TO WCJ Auxiliary aids and services are available upon request to individuals with disabiliti~. Equal Opponunity Employer/Program Page 1 of 3 ~ Recei ved BWC 08/23/2006 2 COMMONWEALTH OF PENNSYLVANIA awc LEGAL DIY 1171 S. CAMERON STREET ROOM 327 HARRISBURG, PA 17104-2501 EDWARD CLABAUGH - 2430247 Auxiliary aids and services are available upon request to individuals with disabilities. Equal Opportunity EmployerlProgram Page 2 of 3 Received Bwe 08/23/2006 . "'3. 'EDWARD CLABAUGH - 2430247 Emulovee Witnesses &. Exhibits: None Emu.over Witnesses & Exhibits: None Hean02S: 5/22/200609:00:00 5/9/2006 09:30:00 3/6/2006 14:00:00 1/23/2006 11 :00:00 Held Postponed Canceled Held by Employee Counsel on 04/10/06 by Employer Counsel on 03/02/06 Auxiliary aids and services are available upon request to individuals with disabilities. Equal Opportunity Employt'J'/Program Page 3 of 3 Received. Bwe 88/23/2006 4 Edward Clabaugh BWC Claim # 2430247 Penalty Petition Page 1 of 5 FINDINGS OF FACT: 1. Claimant suffered catastrophic work related injuries, brain stem trauma and quadriplegia, as the result of a motor vehicle collision in the course and scope of his employment on July 31, 2002. 2. In 2004 Claimant submitted to the Bureau a request for prospective utilization review of modifications and additions .to his home that were intended to permit him to remain at home as opposed to being committed to a hospital or nursing home. 3. Among the items considered by the URO were .. Specifications sheet from Musser Home Builders, Inc. dated July 29, 2004" tIIId .Correspondence and Floor Pion from Musser Home Builders, Inc. dated October 20, 2004. 4. The reviewer's findings included, inter alia, · The care of high cervical tetraplegic in the home setting requires numerous accommodatioM...A t the ve", tellSt, the home must be htllldicapped accessible both for access to the living facility as well as within the living facility itself.. There must be e1IOlI!Jh floor space to accommodate the large amount of supplies necessary to support and sustain life including, but not limited to, a ventilator, ITItlterials for feeding. Materials for a bowel program, back up power supplies (in case of powttr failure), and bathing equipment. In addition, since the cartt of a high level tetraplegic always involves the requirement of another person, there must be an adjustment in living space to also comfortably accommodate at leost two people 24 hours a day along with others who come in throughout the day to assist with various activities of daily living. After viewing the photos submitted in this file, it is my impression that the patient's current living situation does not provide adef/lXlte floor space for necessary medical equipment tIIId the accommodation of multiple people, is not handicapped accessible within the home, and affords the patient little privacy. " 5. On November 29, 2004 the Utilization Review Organizaticm issued a determination that additions and modifications to Claimant's home to permit him to remain and home would be reasonable and necessary. The reviewer had concluded "After review of the records submitted, it is my impression that the proposed addition/modifiCtltion to the home... to permit long-term in home medial ctJre...ore all reasontlble and necessary, since without these accomm<<lations the only other available reasonoble alternative is to place this patient in Q nursing home or other supervised living facility. " , Recei ve;d Bwe 08/23/2006 5 Edward Clabaugh BWC Claim # 2430247 Penalty Petition Page 2 of 5 6. Defendant did not appeal the Utilization Review Determination. 7. On November 28,2005 Claimant filed a Petition for PenD/ties contending that Defendant had failed to make timely payment for home modifications that the utilization review had deemed reasonable and necessary. 8. Defendant filed an Answer that consisted only of · All allegotions are denied. Strict proof is demanded. II 9. Exhibit C-J shows that Musser Home Builders, Inc., the contractor selected by Claimant to perform the home modifications and additions, had submitted invoices to Defendant on September 29, 2005, November 22, 2005 and January 12,2006, totaling $46,091.20 that Defendant had refused to pay, and that Defendant's payment on another invoice dated July 23, 2005 had been $800.00 short. The total unpaid amount therefore was $46 ,891.20 10. Defendant presented no affirmative evidence of its own, but it took the position that it was not obligated to pay the invoices in question because the amount billed for the work actually performed exceeded the original estimate. 11. The contractor, Jeffrey Musser, testified, credibly, that the information submitted to the URO, and to Defendant before the work began, were estimates and sketch plans only, and that as is typical in any remodeling work, there were changes that were necessary as the work progressed in order to accommodate Mr. Clabaugh's needs. 12. Claimant has incurred litigation costs in the amount of $85.60. Claimant's counsel has advanced these expenses. L.__ _______________________________ Received BWC '08/23/2006 6 Edward Clabaugh 8WC Claim # 2430247 Penalty Petition Page 3 of 5 CONCLUSIONS OF LAW: 1. Although home modifications to accommodate the needs of profoundly disabled claimants have long ban recognized as medical eJCPMSes covered by the Act, and it has been held that an employer is liable only for 80% of such modifications. There appears to be no controlling precedent concerning the effect of utilization review of home modifications. 2. Here, there is an unappealed URO determination that additions and modifications to Claimant's home to allow him to remain at home as opposed to being committed to a nursing home. An unappealed URO determination is binding on the parities. The question here, however, is whether the parties are. bound by the sketch plans and estimates that Musser Home builders, Inc, submitted with the original utilization review request, 50 that any variation from that proposal is subject to additional review, (the employer's argument) or whether such deviations as are typical in the usual practice of the construction trade relate back to the prior UR determination (Claimant's argument). 3. This Judge concluded that especially with modifications to existing structures, it is both foreseeable and commonplace that there will be changes and additional costs beyond those set forth in the original proposal, especially such as here where the UR determination was based on sketch plans and estimates. Moreover, this Judges takes judicial notice that unlike strictly medical procedura, which are usually governed by Medicare fee schedules, there are many costs such as those of materials that are beyond the control of building contractors. As an example, the final work in this case took place in the wake of mass destruction along the Gulf coast due to Hurricane ICatrina, which would inevitably result in a spike in the cost of building materials due to the inexorable effects of the law of supply and demand. Therefore, this Judge concludes that Claimant's argument is consistent with normal practice in the construction trade, and therefore Defendant is liable for the billings beyond the amounts in the original estimates. 4. Even if I had concluded that the Employer was correct that changes to the work and additional billings did not relate back but must still be proven to be reasonable and necessary, under the facts of this case the Claimant would still prevail. Under the previsions of the Act dealing with utilization review, it is incumbent upon the employer to seek utilization review within 30 days of receipt of properly supported Rece;i ved Bwe 08/23/2006 . Edward Clabaugh BWC Claim # 2430247 Penalty Petition Page 5 of 5 Defendant shall pay a penalty in the amount of 10'0 of the bills at issue. Defendant shall reimburse claimant's counsel for litigation costs in the amount of $85.60. 6.. v ~ 4..,A,.., Judge Brian G. Eader Workers' Compensation Judge Harrisburg Judge's Office 8GE/ep I I I I I I I \ '~)'f:\.,::~~tt:f;'.'" <.,..;.' c..... '. ',".J - . .,:'..>'f~-'- 8 :~~---j UBC.475 REV 6-01 ~ Harrisburg, PA 17104 lABo"R&iNbuSTID'" CO..ON'I'IALTB or PINl'UYLVANIA www.dli.state.pa.us BUREAU OF WORKERS' COMPENSATION November 29, 2006 The foregoing is hereby certified to bea true and and correct copy of JudS?;e Brian Eader's Decision Circulated August 18, 2006 Edward Clabaugh v. Enterprise Rent-A-Car, BWC #2430247, D/I 7/31/02 in the case of as full, entire, and complete as the same remains on file in the Bureau of Workers' Compensation of the Department of Labor and Industry. Certified this 29th day of November , 2006 ~I Jj~ ~ Chief Claims Management Division ATIFSf: I hereby certify that Thomas L. nin~mnT~ , who signed the foregoing, was at the time of signing, Chief, Claims Management Division, Bureau of Workers' Compensation, and as such, was the legal custodian of the above-described records. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Department of Labor and Industry to be affixed on this 29th day of November ,2006 Seal of the Department of Labor and Industry y~~-~ Sandra J. Neal L1BC-475 REV 6,01 ~ Harrisburg, PA 17104 !ABOR&TiNDUSTRY CO..1lI0NWEALTB OF PIHUIiSYLVANU. www.dli.state.pa.us BUREAU OF WORKERS' COMPENSATION November 29, 2006 The foregoing is hereby certified to bea true and and correct copy of Judge Brian Eader's Decision Circulated August 18, 2006 in the case of Edward Clabaugh v. Enterprise Rent-A-Car, BWC #2430247. D/I 7/31/02 as full, entire, and complete as the same remains on file in the Bureau of Workers' Compensation of the Department of Labor and Industry. Certified this 29th day of November , 2006 ~/~~ Chief Claims Management Division ATIFSf: I hereby certify that Thomas L. Dinsmore , who signed the foregoing, was at the time of signing, Chief, Claims Management Division, Bureau of Workers' Compensation, and as such, was the legal custodian of the above-described records. IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of the Department of Labor and Industry to be affixed on this 29th day of November ,2006 Seal of the Department of Labor and Industry )d~ ~- Y}u1 Sandra J. Neal U3 oL- ')0 (") c; I'-.:) = C':"::> 0.... o ." -l :r: ..,., rnF"" ....nfT: ;0 !-......;'" : ..c:9 CJ Pl ("") w ;~~ -<.,:..,. 1--... c';; C) E51'n ::.01 !1J -< ro m