# Calex, Inc. v. Workers' Compensation Appeal Board

> Commonwealth Court of Pennsylvania · March 26, 2009 · 968 A.2d 822

URL: https://www.frixlaw.com/law-library/cases/9753557

## Case

- **Full name:** CALEX, INC. and Inservco, Petitioners v. WORKERS’ COMPENSATION APPEAL BOARD (VANTAGGI), Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** March 26, 2009
- **Citations:** 968 A.2d 822; 2009 Pa. Commw. LEXIS 113; 2009 WL 775401
- **Precedential status:** Published
- **Opinion:** Concurring in part by Smith
- **Judges:** Smith-Ribner, Leavitt, Flaherty
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CONCURRING/DISSENTING OPINION by
Judge SMITH-RIBNER.
I agree with the majority’s decision to affirm the order of the Workers’ Compensation Appeal Board (Board) upholding a decision entered by the Workers’ Compensation Judge (WCJ) to grant Claimant John Vantaggi’s claim petition for work injuries sustained on January 14, 2006 in the course of his employment as a truck driver for Employer Calex, Inc. I dissent, however, from its decision to reverse the award to Claimant for reimbursement of $3986.18 representing the COBRA co-payment insurance premiums that he paid to Employer after it ceased health insurance coverage for Claimant. He became totally disabled and stopped working in April 2006.
As the sole fact finder in this matter, the WCJ acted within his power in crediting Claimant’s testimony that the only medical treatment paid for through his COBRA co-payments was the treatment for his work injuries. Also, Claimant’s COBRA co-payments were solely for his coverage and no one else. The WCJ distinguished this case from Fotta v. Workers’ Compensation Appeal Board (U.S. Steel/USX Corp.), 714 A.2d 479 (Pa.Cmwlth.1998), where this Court held that the claimant there was not entitled to reimbursement for health insurance premiums paid for medical expenses *830 while his claim was being contested. The employer had ended the claimant’s health coverage, and he had to pay for health coverage at a cost of $7130.45 to Blue Cross/Blue Shield, which included coverage for his wife.
The WCJ in Fotta initially found that the claimant’s injury was not work related, which was affirmed by the Board and by this Court, but the Supreme Court held that the claimant did suffer a disability caused in part by his fall at work and reversed this Court. The WCJ was required to determine on remand the reasonableness and necessity of the medical expenses incurred. The WCJ denied reimbursement for the private premiums paid to Blue Cross/Blue Shield, and upon appeal by the claimant this Court affirmed, pointing out that nothing in the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708, authorized reimbursement for private medical insurance obtained by the claimant to cover all of his illnesses and injuries no matter what the cause. The case sub judice, however, is totally distinct.
In the present case, the WCJ awarded reimbursement of the COBRA premiums as part of the reasonable and necessary medical benefits due Claimant under the Act, and he reasoned as follows:
Claimant [credibly] testified that the only medical treatment paid for through his COBRA co-payments was the treatment he received for his work injuries. Additionally, Claimant argues in his brief that, while in Fotta the claimant paid premiums that included coverage for his spouse, his COBRA co-payments were only for his own coverage. Given these factual differences, this Judge, again, shall conclude that Claimant is entitled to reimbursement of his COBRA co-payments totaling $3,986.18.
Under Section 306(f.l) of the Act, 77 P.S. § 531, an employer is required to pay for all reasonable and necessary medical expenses related to a claimant’s work injuries when found liable for those injuries. Because Claimant was required to make the COBRA premiums to cover medical expenses related to the work injuries, he is entitled to reimbursement of these expenses, and nothing in Fotta precludes the WCJ’s award made in this regard. The WCJ found that Claimant suffered work injuries and that Claimant was required to pay the insurance premiums through his employer to cover medical treatment for those work injuries. But for Employer’s refusal to continue his coverage, Claimant would not have been required to pay the $3986.18 to cover medical expenses related to his work injuries. Employer was responsible for Claimant’s medical costs as and when needed, Fotta , and its failure to cover those costs when incurred caused further expense to Claimant. The Act simply was not intended to penalize an injured worker in this manner, and applying its humanitarian purposes warrants affirming the reimbursement award. I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753557. Public record. Not legal advice.