IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brownsville General Hospital, Inc., :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Berish), : No. 1496 C.D. 2016

Respondent : Submitted: February 17, 2017

BEFORE: HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE JOSEPH M. COSGROVE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY 

JUDGE COVEY FILED: May 23, 2017

Brownsville General Hospital and its workers’ compensation carrier 

State Workers’ Insurance Fund (collectively, Employer) petition this Court for review 

of the Workers’ Compensation Appeal Board’s (Board) August 17, 2016 order 

affirming the Workers’ Compensation (WC) Judge’s (WCJ) decision granting 

Patricia Berish’s (Claimant) petition for review of medical treatment (Petition). 

Employer presents four issues for this Court’s review: (1) whether the Board and the 

WCJ erred by failing to find that Claimant and her husband acted in bad faith; (2) 

whether the Board and the WCJ erred by finding that Claimant was entitled to a new 

wheelchair-accessible van; (3) whether the WCJ erred by finding Claimant’s second 

wheelchair-accessible van (Van 2) was unreliable; and, (4) whether the WCJ issued a 

reasoned decision. After review, we affirm.

On June 22, 2005, while working for Employer, Claimant sustained an 

injury when she was assisting a patient out of bed and into a chair. Employer issued a 
2

notice of compensation payable which described the injury as a low back sprain. 

Thereafter, Employer filed a petition for modification or suspension of WC benefits

alleging that work was generally available to Claimant, but she had voluntarily 

withdrawn from the workforce (Suspension Petition). Claimant filed a petition for 

review of medical treatment alleging that she had developed paralysis as a result of 

the work injury and required subsequent surgical treatment (Review Petition). On 

July 30, 2012, the WCJ denied Employer’s Suspension Petition and granted 

Claimant’s Review Petition. The WCJ specifically found that Claimant’s February 

24, 2011 surgery and her subsequent paralysis were causally related to Claimant’s 

June 22, 2005 work injury. 

On April 3, 2013, Claimant filed the Petition, wherein she requested

Employer to purchase a wheelchair-accessible van on the basis it is reasonable, 

necessary and causally related to Claimant’s accepted work injury. Employer

responded that it had already purchased a wheelchair-accessible van that met 

Claimant’s needs and satisfied Employer’s obligations under the WC Act (Act).1 On 

July 30, 2014, Claimant passed away. Claimant’s Counsel has asked that any 

recovery be paid to Claimant’s husband. 

During the course of the litigation, the parties submitted a written 

stipulation that: (1) this matter involves the Petition in which Claimant sought

payment by Employer for a third wheelchair-accessible van (Van 3) she claimed was 

necessary for transportation due to her condition; (2) Employer denies that it is 

responsible for Van 3, as it purchased Van 2; (3) Van 3 was purchased by Claimant 

and her husband for $72,058.56; (4) Claimant and her husband sold Van 2 for 

$6,000.00; (5) Claimant and her husband sold Van 3 for $30,000.00; and (6) the 

amount in controversy is $36,058.56. See Reproduced Record (R.R.) at 311a.

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2708.
3

The WCJ held hearings on May 24, July 26 and November 1, 2013, 

February 24 and June 2, 2014 and June 19, 2015. On January 4, 2016, the WCJ 

granted the Petition. Employer appealed to the Board. On August 17, 2016, the 

Board affirmed the WCJ’s decision. Employer appealed to this Court.2

Initially, our Supreme Court has held

that the van, and not merely the wheelchair lift and 

modifications installed in the van, may qualify as an 

indispensable device necessary to accommodate this sort of 

catastrophic work injury, and thus, may fall within the 

definition of an orthopedic appliance. [The Court] also 

h[e]ld, however, that the extent of an employer’s obligation 

in this regard will depend upon the specific facts of the 

case.

Griffiths v. Workers’ Comp. Appeal Bd. (Seven Stars Farm, Inc.), 943 A.2d 242, 244 

(Pa. 2008).

Employer first argues that the Board and the WCJ erred by failing to find 

that Claimant and her husband acted in bad faith because Claimant did not advise 

Employer of any problems she was having with Van 2, nor did she give Employer an 

opportunity to make any necessary repairs to Van 2. Claimant rejoins that Employer 

did not raise this issue before the WCJ or the Board, therefore, it is waived. See 

Brewer v. Workers’ Comp. Appeal Bd. (EZ Payroll & Staffing Solutions), 63 A.3d 

843, 847 (Pa. Cmwlth. 2013) (“[F]ailure to raise an issue before the factfinder or the 

Board waives the issue on appellate review.”).

In its brief filed with the WCJ, Employer raised the issue of “[w]hether 

[E]mployer should be required to pay for [V]an []3 when [C]laimant gave [E]mployer 

no opportunity to fix [V]an []2.” R.R. at 205a. In its Board Petition Summary, 

 

2

“On review[,] this Court must determine whether constitutional rights were violated, errors 

of law were committed, or necessary findings of fact were supported by substantial competent 

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6 

(Pa. Cmwlth. 2014).
4

Employer included the issue of whether the WCJ erred by “failing to address 

[E]mployer’s argument that [C]laimant failed to act reasonably when [she] did not 

advise [E]mployer of any problems with Van []2, and did not give [E]mployer an 

opportunity to make any necessary repairs to it.” R.R. at 225a. Because Employer

did not previously use the words “bad faith”3, we will address the issue as it was 

originally raised, i.e., whether Claimant acted “reasonably” by not giving Employer 

an opportunity to repair Van 2 before purchasing Van 3.

Our decision in Zuback v. Workers’ Compensation Appeal Board 

(Paradise Valley Enterprise Lumber Co.), 892 A.2d 41 (Pa. Cmwlth. 2006), is 

analogous to the case at bar. In Zuback, the employer installed stair glides in the 

claimant’s home to allow the claimant to move between floors. More than 25 years 

after the employer initially installed the glides, the claimant filed a penalty petition 

against the employer alleging that the employer had failed to pay to have the glides 

repaired. The WCJ denied the claimant’s petition, and the Board affirmed the WCJ’s

decision, reasoning that the employer was only required to make a one-time 

expenditure to modify the claimant’s home, which it had done. This Court reversed, 

concluding:

Claimant did not seek any additional modifications to his 

house, but only the replacement of the two stair glides. The 

stair glide, which operates much like a wheelchair, is 

clearly an ‘orthopedic appliance.’ Further, this record 

reflects that [the insurance carrier] has provided [the 

c]laimant with numerous wheelchairs and replacement

beds as a result of ‘wear and tear.’ Stair glides should 

receive the same treatment. ‘In reviewing [WC]

matters, we are also guided by the basic premise that 

[the Act] is remedial in nature and is intended to benefit 

workers, and therefore, the Act must be liberally 

 

3

“‘Bad faith,’ as that term has been defined, is fraud, dishonesty, or corruption.” 

Springfield Twp. Bucks Cnty. Bd. of Supervisors v. Gonzalez, 632 A.2d 1353, 1356 (Pa. Cmwlth. 

1993). The record evidence does not reflect that Claimant or her husband acted in bad faith.
5

construed in order to effectuate its humanitarian 

objectives.’ Lehigh C[nty.] Vo-Tech Sch[.] v. Workmen’s 

Comp[.] Appeal [Bd.] (Wolfe), . . . 652 A.2d 797, 799 ([Pa.] 

1995) citing Peterson v. Workmen’s Comp[.] Appeal [Bd.]

(PRN Nursing Agency), . . . 597 A.2d 1116 ([Pa.] 1991).

Zuback, 892 A.2d at 46-47 (footnotes omitted). We conclude that the replacement of 

Van 2 is similar to the replacement of the stair glides. 

Employer argues that it should have had the option to repair or replace 

Van 2. This argument might have merit if Claimant had selected Van 2 or, at a 

minimum, participated in its selection; however, she did not. Employer purchased 

Van 2 without Claimant’s input or approval, and it was not sufficient to meet 

Claimant’s medical needs from the outset. Claimant’s husband testified:

Q. [Claimant’s Counsel] Now, did you participate at all in 

the purchasing of [Van 2]? I’m not meaning financially, 

but as far as you or [Claimant] participating in picking one 

out, or did you participate at all?

A. [Claimant’s husband] No.

Q. When they eventually located one they were going to 

purchase, were you provided with any information as to 

whether or -- not this suited your needs or this was one that 

you wanted, this is one that you thought was appropriate?

A. No. Not at all.

. . . . 

Q. The year of the car, . . . was what year?

A. 2001.

Q. Van number one, that you were having the problems

with that you got rid of, what year was that?

A. 2003.

Q. Van number one was a 2003 with how many miles at the 

time that you got rid of it?

A. Somewhere between 45 and 60,000 miles.
6

Q. [Van 2] is a 2001, when it showed up at your house had 

how many miles on it?

A. Close to 90,000, 89,760.

Q. One of the issues that we discussed so far in your 

testimony was a replacement van having enough space in it 

to take care of [Claimant’s] medical needs, that is 

incontinence when you’re away from home. Does [Van 2] 

suit those needs?

A. Absolutely not.

Q. Why not?

A. Because the way the van was situated is when she got 

into the van there was another seat to the left of her. There 

were two bucket seats in behind her. So there was just one 

space for her to get in there and that was it.

Q. So let’s make it clear on the record, how many rows of 

seats does this van have?

A. Three, counting the driver’s area.

Q. Correct. And were they all bucket seats, or any of them 

a bench?

A. They were all bucket seats.

. . . . 

Q. Aside from the space issue, did you have any other 

concerns about [Van 2] when it was delivered to your 

house on that day in January?

A. Yes, I did.

Q. What were those concerns?

A. When the doors in the van would close, there was a gap 

between the door and the floor. Had [Claimant] moved 

her wheelchair while she was in the van, the wheels 

would go down that gap and would tip the wheelchair 

over.

. . . . 
7

Q. How would you secure the wheelchair in [Van 2]?

A. I would tie it down to the floor, but I would have to 

crawl around to hook her up. That’s the only way I could 

do it.

Q. When you say tie down, sir, something like a strap?

A. Yes. A strap would wrap around and you would tighten 

it up.

Q. Like a belt?

A. Yeah.

Q. We had talked about problems that van number one had 

with the lift, what about [Van 2]? How was that lift?

A. I didn’t really look at the capacity on it, but when the lift 

came up with her on the wheelchair, it didn’t come all the 

way up to the floor level or anything. There was a gap 

between her and the wheelchair and the floor level. As 

she would come off of the lift onto the van floor, then it 

[sic] raise up even with the van floor.

. . . . 

Q. Just so we’re clear, what was the problem when the lift 

would go up and become close to where the floor was?

A. It wouldn’t go all the way up. There was a small gap in 

between there, and once she would roll off of it onto the 

floor, as the wheelchair went on, the only way it would 

come up even with the floor, [sic] and then she could finish 

rolling off of it.

Q. So as the weight of the wheelchair would transfer to the 

van, the platform would then raise even more?

A. Yes.

Q. As far as the mechanics of the vehicle, on the day that 

you received it, were there any issues with the mechanics? 

Did you start it, did you see how the engine sounded?
8

A. Yeah. I started it. I took it for a ride. When I started it, 

there was a problem with starting it. I let that be known that 

--there was an issue with it starting right away.

Q. When you say there was a problem with starting it, 

explain what you mean by that.

A. When you turn a key on a normal vehicle, when you turn 

the key it will start cranking. When you start this one, when 

you turn the key it would be like a second or two hesitation 

before it would start to crank over.

Q. Did it start?

A. It did. It did eventually. I had problems starting it. 

Finally, we did get it started.

. . . .

Q. So after it was delivered that day, did you start to use it?

A. Yeah.

Q. Did you continue to experience the delay in turning the 

key with the starting of the van?

A. Yes, I did.

Q. Again, though, did the van start up?

A. Yes.

. . . . 

Q. Were you out and about with [Claimant] at any point?

A. Yes, I was.

Q. Well, explain to us what happened?

A. We would go to Lowe’s in Belle Vernon and we went

into the store and were shopping, and when we came out to 

get into the van, I already had her up and the van wouldn’t 

start. So even though I was having other problems with this 

van starting, I carried a little portable power pack with me. 

After doing everything I need[ed] to try to get this van 

started, I couldn’t get it started. I used the portable power 

pack to jump it to get it started. And once I got it started, I 
9

took her home and I immediately went to Advance Auto 

Parts and purchased a brand new battery.

. . . .

Q. So aside with the starting issues we discussed, the 

battery, the space issues, any other problems with [Van 2]?

A. It had some water leaks. I had a hard time getting 

underneath the van to really find out where they were 

coming from because I had oil in my driveway.

Q. The van was, according to your testimony, delivered in 

mid[-]January 2013, the battery that you purchased was 

March 1, 2013, so approximately six weeks later. After that 

point, what did you do?

A. After that point, the van seemed to be okay for two days.

The third day we went out, I needed to get her to the 

doctor’s, I went out to start the van, it wouldn’t start. I had 

a battery charger in my garage. I hooked the battery 

charger up to it, it started right up. Just to satisfy my 

curiosity, I left it run for a little while, shut it off, tried to 

restart it, it wouldn’t start. So I had to hook the battery

charger up to it again, and it would start up. I took her to 

the doctor’s, and let the van run the whole time we were 

there. When we came back home, I called this Mobility 

Works and told them I needed a van.

Q. Did you purchase a new van?

A. Yes.

R.R. at 58a-69a (emphasis added).

Thus, given the fact that Van 2 was not reliable, in addition to it not 

meeting Claimant’s medical needs, it was reasonable for Claimant to purchase Van 3 

rather than repair Van 2. Accordingly, while we agree with the WCJ that it may have 

been better if Claimant had contacted Employer before purchasing Van 3, we discern 

no error in the WCJ’s conclusion that Claimant’s failure to do so did not negate that 

“Claimant ha[d] met her burden of proving that Van []3 was reasonable, necessary,

and causally related to the work injury and that [Employer] should be responsible for 
10

paying for [Van 3].” WCJ Dec. at 10. This conclusion is especially true here where, 

Claimant’s frustration was understandable, in that Employer selected Van 2 without 

Claimant’s input and as the WCJ observed, “in not having a reliable vehicle [as well 

as] . . . the[] desire to avoid the red tape and delays, including possible litigation, 

which [Claimant] would have had to go through if [she] attempted to obtain [Van 3] 

through [Employer].” Id. at 11.

Employer next contends that the Board and the WCJ erred by finding 

that Claimant was entitled to a new van because the Claimant’s lifestyle was such that 

she and her husband purchased used vehicles. We disagree.

We recognize:

The Act is remedial, but it does not authorize windfalls. . . . 

[T]he extent of an employer’s liability may and should 

vary depending on the particular circumstances 

affecting the claimant. Nothing in the Act, for example, 

requires that an orthopedic appliance—the van here—be 

brand new. In addition, the claimant’s prior lifestyle and 

resources may be relevant in fixing the appropriate 

expense owed by the employer to secure an appropriate 

vehicle. Thus, the circumstances of a claimant who already 

owned a van prior to his injury will be different from the 

circumstances of a claimant who owned a smaller vehicle 

not suitable for wheelchair-accessible modification (but 

perhaps suitable for trading-in to offset the cost of a van), or 

a claimant who owned no car at all, but relied upon 

walking, public transportation or other means of travel. . . . 

[W]hile recognizing that a modified van is a necessary 

appliance or apparatus for some claimants, [we] 

concomitantly recognize[] that the particular circumstances 

of the claimant must be considered in determining the 

precise obligation of the employer. 

Griffiths, 943 A.2d at 257 (bold and italic emphasis added). 

With respect to the purchase of the first van, Claimant’s husband related:
11

Q. At the time that you purchased van number one, did you 

have any idea of the permanency of the paralysis that 

[Claimant] had at that time?

A. To the best of my knowledge, we were under the

assumption that her paralysis was going to be more of a 

temporary than permanent [sic].

Q. So what were your thoughts or the circumstances in 

buying van number one?

A. I had to have a van to be able to take her out from the 

rehab unit at Mercy Hospital, and my thought was just to 

buy the cheapest van I could find to do the job at the 

time. So that was the van that fit the bill. It was a 

couple thousand dollars cheaper than anything else that

I could find.

Q. Now, after you purchased the van and brought

[Claimant] home, at some time thereafter, did your

understanding change as to whether the paralysis would be 

permanent or not?

A. Yes.

Q. And what was your understanding at that time?

A. That the paralysis was a permanent thing and that we 

shouldn’t even look at having anything more than that.

Q. Now, Claimant’s Exhibit Number Two is a photocopy of 

a receipt. . . . [A]t the bottom there is a balance due of 

$913. What was this for? Were you having any issues with 

the first van that you had purchased?

A. Yes, I was. Prior to this, this van had a ramp that would 

come out of the floor and she could drive in and out of the 

van. It would work sporadically, or sometimes it would 

work fine, sometimes it would just go out part way, it was 

leading up, I guess, to where the motor went bad. My wife 

and my daughter-in-law were out Christmas shopping, they 

were down by South Hills Village and they called me that 

the ramp was stuck part way out, and she was in the parking 

lot. She couldn’t get in the van, they couldn’t do anything. 

So I went down there and I had to go to Home Depot and 

purchase some tools and take it apart and manually, with a 
12

pair of pliers I had to bring it back in. We had a portable 

ramp that I could get her in the van.

. . . . 

Q. Prior to this ramp having issues in December of 2011, 

which was six or seven months after you had purchased the 

van, were you having any other problems with van number 

one?

A. Yeah, I had to have the air-conditioner fixed, which I 

spent $1,000 on that. I had to have the power steering lines 

repaired. I had to have the coolant lines repaired.

Q. Claimant’s Number Three, is a fax from Mobility Works 

with an attached estimate for a new van. What were the 

circumstances surrounding this document being sent to my 

attention?

A. When I found out the paralysis was permanent, and 

we started having problems with the other van, I knew I 

needed to get something that was more reliable because 

had I needed to take her to the doctor’s or wherever I 

needed to take her, I needed to have a van to take her 

there. So I needed something reliable.

Q. Claimant Four is a letter that I sent to John Earley, and 

on the second page I referenced some of the issues with van 

number one. We’ve already talked about the lift. I 

referenced fluid is leaking. Did you have issues regarding 

leaky fluids with van number one?

A. Yes. That’s where the coolant lines were rusty and the 

power steering lines were rusty and I had to replace both of 

those.

Q. I also make a reference to the van being too small for 

[Claimant’s] needs. What did you find that you needed as 

far as the size of the van or space of the interior regarding 

[Claimant’s] needs?

A. With her being incontinent, and every time that we were 

out on the road where she needed to be taken care of, if we 

couldn’t find a place to do it, there were times when we had 

to rent a motel room just to kind of take care of her needs. 
13

Because it was time to do it and we were away from home, 

too far away from home to get there.

Q. Was the interior of van number one big enough to do 

that?

A. No.

R.R. at 27a-31a (emphasis added). Thereafter, Employer purchased Van 2. As 

Claimant’s husband testified, Van 2, another used vehicle, was older than the first 

van, did not meet Claimant’s medical needs and was less reliable than the first van. 

See R.R. at 58a-69a.

Here, the record evidence shows that Claimant had originally purchased 

a used van at a time when she thought her paralysis was temporary and which 

ultimately did not meet Claimant’s medical needs. Thereafter, Employer purchased a 

used van which also did not meet Claimant’s medical needs and was unreliable. 

Thus, Claimant’s ultimate purchase of a new van was not an attempt to gain a 

windfall, but rather the only way Claimant could obtain a van that met her medical 

needs and provided reliable transportation. Although, Claimant’s lifestyle and 

resources may be relevant in determining whether Claimant is entitled to a new van, 

“the particular circumstances of [C]laimant” support the WCJ’s and the Board’s 

conclusion that Claimant was entitled to a new van. Griffiths, 943 A.2d at 257.

Employer next argues that the WCJ erred by finding that Van 2 was 

unreliable when the WCJ found Employer’s mechanical expert David Zigarovich 

(Zigarovich) credible and he testified that Van 2 was reliable. We disagree.

Zigarovich testified that Claimant had a Chevy Express van and a van 

such as that, on average, “could very easily with, you know, proper maintenance last 

200,000 miles or more.” R.R. at 328a. However, he never testified that Claimant’s 

van, specifically Van 2, was reliable. In fact, he explained that “[n]o one asked [him] 
14

to do [an overall evaluation and inspection of it].” R.R. at 326a. Thus, this testimony 

does not affect the WCJ’s finding that Van 2 was unreliable.

Lastly, Employer asserts that the WCJ did not issue a reasoned decision 

because the WCJ found all of the witnesses credible despite conflicts in their 

testimony. Specifically, Employer contends that the WCJ’s decision cannot be wellreasoned when there was irreconcilable conflict between Claimant’s husband’s 

testimony and Zigarovich’s testimony regarding Van 2. We disagree.

Section 422(a) of the Act provides in relevant part:

All parties to an adjudicatory proceeding are entitled to a 

reasoned decision containing findings of fact and 

conclusions of law based upon the evidence as a whole 

which clearly and concisely states and explains the rationale 

for the decisions so that all can determine why and how a 

particular result was reached. The [WCJ] shall specify the 

evidence upon which the [WCJ] relies and state the reasons 

for accepting it in conformity with this section. When 

faced with conflicting evidence, the [WCJ] must 

adequately explain the reasons for rejecting or 

discrediting competent evidence. Uncontroverted 

evidence may not be rejected for no reason or for an 

irrational reason; the [WCJ] must identify that evidence and 

explain adequately the reasons for its rejection. The 

adjudication shall provide the basis for meaningful 

appellate review.

77 P.S. § 834 (emphasis added). “To constitute a reasoned decision within the 

meaning of Section 422(a) [of the Act], a WCJ’s decision must permit adequate 

appellate review.” Dorsey v. Workers’ Comp. Appeal Bd. (Crossing Constr. Co., 893 

A.2d 191, 194 (Pa. Cmwlth. 2006).

Here, the WCJ made the following relevant findings of fact:

11. I accept the testimony of all of the witnesses as 

credible. I do not believe that their testimony conflicts in 

any significant manner. The only dispute appears to be 

regarding the battery which [Claimant’s husband] bought at 

Advanced Auto Parts. While [Claimant’s husband] did
15

produce documentation which supported his assertion that 

he paid for a 700 CCA battery[,] I note that it would be 

possible that Advanced installed the incorrect battery even 

though [Claimant’s husband] paid for a 700 CCA battery. I 

accept Mr. Zigarovich at his word that he removed a 500 

CCA battery from Van []2. I wish to note that I am

accepting the testimony of [C]laimant and [her husband] as 

credible based upon my personal observation of their 

demeanors while testifying.

12. I find that the purchase of Van []3 was reasonable, 

necessary, and causally related to the injury of June 22, 

2005.

WCJ Dec. at 10 (emphasis added). We agree with the WCJ that there is no 

significant conflict in the testimony. Accordingly, because the WCJ’s decision 

contains “findings of fact and conclusions of law based upon the evidence as a whole 

which clearly and concisely state[] and explain[] the rationale for [his] decision[]” 

and the WCJ “specif[ied] the evidence upon which the [WCJ] relie[d] and state[d] the 

reasons for accepting it in conformity with [Section 422(a) of the Act,]” the WCJ’s 

decision is well-reasoned. 77 P.S. § 834.

For all of the above reasons, the Board’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brownsville General Hospital, Inc., :

Petitioner :

:

v. :

:

Workers’ Compensation Appeal :

Board (Berish), : No. 1496 C.D. 2016

Respondent :

O R D E R

AND NOW, this 23rd day of May, 2017, the Workers’ Compensation 

Appeal Board’s August 17, 2016 order is affirmed.

___________________________

ANNE E. COVEY, Judge