The opinion of the court was delivered by: Judge Cohn Jubelirer
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge,HONORABLE JIM FLAHERTY, Senior Judge.
Equitable Resources (Employer) petitions for review of the order of the Workers' Compensation Appeal Board (Board), which upheld the decision and order of the Workers' Compensation Judge (WCJ). Robert Thomas (Claimant) suffers from paraplegia resulting from a work-related injury. In her decision and order, the WCJ granted the Penalty Petition of Claimant and ordered Employer to pay for the repair of modifications to Claimant's bathroom. Employer argues that, although it was obligated to provide modifications to Claimant's home to accommodate his needs resulting from his paraplegia, it is not obligated to pay for the repairs necessitated by the substandard construction of those modifications.
Claimant injured his back while working for Employer on October 18, 1991. As a result of this injury, Claimant is unable to use his legs and suffers from bladder and bowel dysfunction. "Claimant is confined to a wheelchair as a result of his work injuries." (WCJ Decision, Findings of Fact (FOF) ¶ 5.) During Claimant's employment, Employer required Claimant to live on Employer's property at the Hartson Compressing Station in Finleyville, Pennsylvania. After Claimant's injury, Employer loaned Claimant money, at no interest, to purchase a house. The loan is expected to be repaid upon Claimant's receipt of a lump-sum settlement from Employer. "Employer made modifications to the Claimant's bathroom to accommodate his work injuries." (FOF ¶ 5.) The modifications were poorly done by the contractor Employer hired, and, as a result, a water leak caused damage to the bathroom and mold to form in the walls and under the floor. Employer provided for subsequent repair work to be performed on the bathroom, but the leakage was not resolved. Notably, Claimant credibly testified that Employer hired the contractor that initially performed the modifications. (Claimant Dep. at 6-7; Board Op. at 2.) Claimant requested that Employer provide for further repairs, and Employer refused.
Claimant filed his Penalty Petition, which was assigned to the WCJ. The WCJ held hearings and determined that "the cost to repair the bathroom is approximately $22,000.00." (FOF ¶ 5.) Relying on Rieger v. Workmen's Compensation Appeal Board (Barnes & Tucker Co.), 521 A.2d 84 (Pa. Cmwlth. 1987), the WCJ characterized the modified bathroom as an "orthopedic appliance" such as a wheelchair, which Employer is obligated to provide per Section 306(f.1)(1)(ii) of the Workers' Compensation Act (Act),*fn1 and to repair or replace per Zuback v. Workers' Compensation Appeal Board (Paradise Valley Enterprise Lumber Co.), 892 A.2d 41 (Pa. Cmwlth. 2006). The WCJ found that:
9. This case is analogous to Zuback, in that the claimant is not seeking additional modifications to his bathroom, but repair of the existing modifications. Employer modified claimant's bathroom to accommodate claimant's wheelchair. The modifications were negligently performed and resulted in serious damage to claimant's house and bathroom. The employer should be responsible for the repair.
10. I find that the employer never provided the claimant with appropriate modifications to the bathroom. They were defective from the time the contractor completed his work. Since the modifications are considered "orthopedic appliances" under the Act, this is akin to the employer providing a defective wheelchair to the claimant. The employer would be responsible for the replacement of the defective wheelchair, and any damage that was caused by the defect. The employer is responsible for the repair of the bathroom modifications, and any resulting damage caused by the defect.
(FOF ¶¶ 9-10.) The WCJ chose to treat Claimant's Penalty Petition as a review petition, given that the legal issue of whether Employer is obligated to pay for the repairs to the bathroom is a novel one. The WCJ held that Employer is responsible for the repairs.
Employer appealed to the Board. As it had before the WCJ, Employer argued before the Board that Bomboy v. Workmen's Compensation Appeal Board (South Erie Heating Co.), 572 A.2d 248 (Pa. Cmwlth. 1990), not Zuback, is the applicable precedent, and that Employer was only obligated to make a one-time payment to modify Claimant's home to accommodate his confinement to a wheelchair. The Board disagreed and found Zuback to be the more analogous precedent. Thus, the Board affirmed the WCJ's order. Employer now petitions this Court for review.*fn2
Before this Court, Employer argues, as it did before the Board, that the current case is more similar to Bomboy than to Zuback, and that Employer should, therefore, only be held liable for the one-time cost of modifying Claimant's home, which it has already done. We disagree.
Section 306(f.1)(1)(ii) states that "the employer shall provide payment for medicines and supplies, hospital treatment, services and supplies and orthopedic appliances, and prostheses in accordance with this section." 77 P.S. § 531(1)(ii). In Rieger, this Court concluded that the term "orthopedic appliances" in Section 306(f.1) includes modifications made to a claimant's home to accommodate his use of a wheelchair, reasoning that:
It is certainly clear . . . that a wheelchair is, by common usage, an orthopedic appliance. It is undisputed that the claimant must use a wheelchair for much of his ambulation. It is likewise clear that all of the remodeling done upon the claimant's home was to permit him to utilize his wheelchair. There can be no doubt that bars placed within a bathroom and ramps leading to and from a home are certainly devices specifically designed for the particular use of wheelchair users. It is likewise certain that devices to aid in the use of wheelchairs fit within the above definition of ...