Pa. Commonwealth Court Restores Workers’ Comp Benefits to Smoker, Averts Disastrous Implications for Pa. Workers

The Commonwealth Court prevents an injured smoker from losing her benefits

In Wegmans Food Markets v. Cole, No. 687 C.D. 2024—a case in which my law firm represented the injured worker—the Commonwealth Court returned to long-established precedent when articulating the level to which an employer must rise in order to successfully petition for suspension of an employee’s workers’ compensation benefits.

In August 2021, Bonnie Cole was injured on the job while working for Wegmans at one of its warehouses. Her fractured right ankle did not heal properly after it was operated on and became infected. Ms. Cole was given two surgical options: either additional surgery on the ankle that could have resulted in chronic pain with no guarantee of success, or amputating her right leg below the knee. She opted for the latter, which took place in October 2022.

Ms. Cole is a smoker who has smoked off and on for 40 years. Wegmans’ “independent” medical examiner, Dr. Lucian Bednarz, testified that she had been told many times to stop smoking and that he believed her failure to do so caused her ankle not to heal, the infection to develop, and ultimately the need for an amputation. Dr. Bednarz cited scientific literature to support his testimony that smokers are twice as likely to develop infections and almost four times as likely to develop bone fractures as nonsmokers.

Despite Ms. Cole’s doctor testifying that he did not think her smoking was a factor in her fracture’s failure to heal, a Workers’ Compensation Judge relied on Dr. Bednarz’s testimony in holding in that by not quitting smoking, Ms. Cole failed to follow doctors’ recommended treatments for her injury, including by not taking the smoking cessation treatment her family doctor offered her. Thus, he granted Wegmans’ Petition to Suspend Compensation Benefits under Section 306(f.1)(8) of the Pennsylvania Workers’ Compensation Act.

On appeal, the Worker’s Compensation Appeals Board (WCAB) reversed, holding that to be entitled to the suspension of Ms. Cole’s benefits, Wegmans needed to show that the prescribed smoking cessation treatment, and not the advice to stop smoking itself, was likely to have a “high probability of success in reducing [her] disability.” The WCAB held it did not.

Its decision specifically hinged on a distinction between the probable efficacy of the advice to quit smoking and that of the actual treatment prescribed, which was use of the drug Wellbutrin. Because of the lack of information in the record about the treatment and its probability of success, the WCAB found it was “too untenable” to suspend Ms. Cole’s workers’ compensation benefits.

The Commonwealth Court affirmed the WCAB’s decision, ruling that the WCAB did not err in finding Wegmans had not met its initial burden of proof under Section 306(f.1)(8). Section 306(f.1)(8) states that “[i]If the employe shall refuse reasonable services of health care providers, surgical, medical and hospital services, treatment, medicines and supplies, he shall forfeit all rights to compensation for any injury or increase in his incapacity shown to have resulted from such refusal.”

According to the Commonwealth Court, Wegmans, in pursuit of a forfeiture of benefits under Section 306(f.1)(8), must first present medical evidence that the “medical treatment or services at issue are reasonable, meaning that they involve minimal risk and have a high probability of improving, if not curing, a claimant’s work-related condition and will enhance their prospects of gainful employment.”

Wegmans argued that the medical advice Ms. Cole received about stopping smoking was the equivalent of medical treatment or services under Section 306(f.1)(8), and thus was a proper basis for suspending her benefits. But the Commonwealth Court did not buy Wegmans’ argument.

In looking at Section 306(f.1)(8), the court noted that the statute does not reference “medical advice.” In its view, that made sense. Otherwise, injured workers could lose their workers’ compensation benefits when they received medical advice without evidence they were offered a treatment through which they could achieve the desired result. The court noted that Wegmans’ position equated “lifestyle advice as treatment,” but “[l]ifestyle advice, without offering a means to achieve the goal, is not treatment.”

Reviewing the record before it, the court noted that Wegmans’ only evidence it presented was the reasonableness of advising Ms. Cole to stop smoking; however, there was no evidence that merely advising someone like Ms. Cole, who smoked for over 40 years, to quit smoking, without giving them a treatment or a means of quitting, would enjoy a high probability of success. The court added that Wegmans presented no evidence whether the smoking cessation drug prescribed to Ms. Cole was a reasonable treatment for smoking cessation, and that she refused it.
At a minimum, the court noted, Section 306(f.1)(8) requires proof that a treatment “improves the work-related injury or health problem and will increase the prospects of a return to some gainful employment.”

The court ruled that Wegmans had not met its initial burden of proof under Section 306(f.1)(8) because it presented no evidence on any of the above points as to the smoking cessation drug, and Ms. Cole’s refusal to take it.

Saving Pennsylvania’s injured workers from weaponized lifestyle advice

Had the Commonwealth Court accepted Wegmans’ position, a physician’s generic healthy lifestyle advice about weight, sleep, or stress could be weaponized to deny an injured worker’s rightful workers’ compensation benefits—even when they did not refuse a treatment plan. Boilerplate advice about how maintaining a healthy weight, not smoking, getting enough sleep, and managing stress would support good health outcomes could meet the employer’s burden in that situation, without the medical professional offering assistance to the injured worker in actually accomplishing those goals, and where those goals were only tangentially related to the injury at issue.

Instead, the Commonwealth Court correctly interpreted the clear and intentionally drafted language of the Workers’ Compensation Act, limiting an employer’s ability to suspend a claimant’s workers’ compensation benefits to those situations in which medical treatment is refused.

With its decision, the Commonwealth Court avoided a worst-case scenario for Pennsylvania workers: losing vital workers’ compensation benefits for failing to follow their physicians’ generic lifestyle advice that would not improve or cure their work-related injuries. This decision should put Pennsylvania employers on notice that they cannot evade their workers’ compensation obligations by claiming that vague lifestyle recommendations are equivalent to specific medical treatment.

Pennsylvania’s workers’ compensation claimants’ bar must remain vigilant against efforts by employers that mirror what Wegmans did in Ms. Cole’s case. Although Ms. Cole was victorious before the WCAB and the Commonwealth Court, there is no doubt employers and their workers’ compensation insurers will continue looking for ways to chip away at injured workers’ benefits.

The Commonwealth Court’s decision, and Ms. Cole’s case generally, are yet additional reminders that it falls on the shoulders of the Pennsylvania workers’ compensation claimants’ bar to ensure that the Workers’ Compensation Act is consistently interpreted as it was written, and fueled by the clear policy considerations the Pennsylvania General Assembly had in mind when it enacted the statute, in order to protect those it was meant to serve.

Wegmans has filed a petition for allowance of appeal with the Pennsylvania Supreme Court, so Ms. Cole is not quite in the clear just yet. But even if the court takes on Wegmans’ case, I’m confident it will continue to liberally construe Section 306(f.1)(8) and the Pennsylvania Workers’ Compensation Act as a whole to effectuate its humanitarian objectives, which here would mean not deeming lifestyle advice to be medical treatment for a work injury.

Keld R. Wenge is a partner at Pond Lehocky Giordano, Inc., the largest workers’ compensation and Social Security disability law firm in Pennsylvania and one of the largest in the United States. He can be reached at kwenge@pondlehocky.com.

Reprinted with permission from the March 13, 2025 edition of The Legal Intelligencer © 2025 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.