State News : Pennsylvania

The Pennsylvania appellate courts continue to compound an apparent misunderstanding of how review of medical treatment is to be addressed under the Pennsylvania Workers’ Compensation Act and corresponding Medical Cost Containment Regulations.  Further, the Court continues to interpret the Act in the light most favorable to the Claimant’s bar as is reflected in a recent decision addressing reimbursement of costs.

In UPMC Benefit Management Services, Inc. v. United Pharmacy Services (BWC Fee Review Hearing Office), No. 558 C.D. 2021 (Pa.Cmwlth. December 15, 2022) and State Workers’ Insurance Fund v. Harburg Medical Sales Co., Inc. (BWC Fee Review Hearing Office), No. 712 C.D. 2021 (Pa.Cmwlth. December 15, 2022), the Commonwealth court has essentially indicted that liability for a claimant’s prescribed treatment may only be disputed through a utilization review.  If there is an open Notice of Compensation Payable or other document/decision establishing liability for a work-related injury, the Courts appear to be of the belief that this will foreclose the possibility to render a Fee Review premature under 34 Pa. Code 127.256.  This section reflects that a Fee Review will be returned as being prematurely filed by the provider when 1) the insurer denies liability for the alleged work injury; 2) utilization review has been filed or 3) the 30 day period allowed for paying a bill has not elapsed.  

According to the Court, when an employer or insurer seeks to render a provider’s fee review application premature, a dispute regarding the causal connection between the prescribed treatment and the underlying work injury apparently must be reframed as a challenge to the reasonableness and necessity of the treatment through the utilization review process. 

These Decisions compound the original error by the Court in its Decision in Omni Pharmacy Services, LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (American Interstate Insurance Company) where the Court required a Utilization Review be filed so as to challenge treatment on the basis of causation, despite the regulation governing such actions specifically forbidding a Utilization Review from addressing causation.  See 34 Pa. Code § 127.406(b)(1), which provides that a Utilization Review may not decide “the causal relationship between the treatment under review and the employee’s work-related injury.”  These cases place the Workers’ Compensation Judge adjudicating such a matter in a difficult position of applying this clearly erroneous precedent or the law as has been applied for years in the practice of workers’ compensation.

These holdings would appear to be contrary to Listano v. WCAB (INA Life Ins. Co.), 659 A.2d 45 (Pa. Cmwlth. 1995); Delarosa v. WCAB (Masonic Homes), 934 A.2d 165 (Pa. Cmwlth. 2007)(providing that should an employer or carrier unilaterally deny treatment on the basis of causation, they may be subject to penalties, at the discretion of the WCJ, if it is found that the medical bills are causally related to the work injury).  The Court did not previously attempt to impose this requirement on employers and carriers to challenge causation through the utilization review process.  However, now it appears the Court conflates the issue of reasonableness and necessary with causation by indicating if treatment is not causally related to an accepted work injury, it is not reasonable and necessary treatment.  However, if the Utilization Review is precluded from deciding issues of causation, the reviewer is in a catch 22 as to how to address this issue.

In the United Pharmacy case, the issue was one where the carrier was arguing that the treatment in the nature of use of compound creams, 3 fills at $2,249.98 per tube, were not related to the low back strain injury.  In the Harrburg Medical Supply case, the carrier paid for $1,725.00 worth of the bills for multiple injuries but denied on the basis of causation the $2,199.95 memory foam mattress overlay as not being related to the work injury. Thus, in both of these situations, the treatment may have been provided for the accepted body part.  Hopefully that is the driving force in these decisions.  However, with the language utilized by the Court, there can be arguments that treatment clearly unrelated to the accepted injury now has to be subject to Utilization Review when the dispute is clearly on causation. 

If, hypothetically, a Notice of Compensation Payable is issued accepting a shoulder injury and.   Claimant starts to treat for a different/unaccepted body part, must the carrier now file for Utilization Review despite the holding of Listano in such situations?  Can the Claimant simply treat workers’ compensation like private health insurance to cover any conditions that they allege may be related to the work injury even if there is no obvious causal relationship to what was originally reported as being the injury?  Already there is the potential for abuse with charges for non-medical items like a foam mattress overlay and the language of these decisions seems to provide open the door to the potential for additional future abuses.  

If the carrier needs to file for Utilization Review that is typically a fixed cost of $1,500 to $2,000, is it worth the cost of filing for Utilization Review and then potentially the costs of litigation to avoid a charges like these in these matters?  When the carrier can deny on the basis of causation for treatment that is not obviously related to the work injury, like a memory foam mattress, that would dissuade medical providers from trying to take advantage of the system.

As it stands now, carriers may need to be more proactive in terms of filing a Petition to Review Medical Treatment and/or Billing, which is a Petition that can also bring the issue of medical causation before a Workers’ Compensation Judge.  However, the medical provider may still need to be paid for the treatment with there being a potential for reimbursement from the Supersedeas Fund if the carrier ultimately prevails.  Of course, there are the litigation costs and most likely the cost associated with obtaining a medical opinion whether through Independent Medical Evaluation or record review, associated with taking such action.  As it stands, the Medical Cost Containment Regulations are now approximately 30 years old and are in need of review and potential revamping.       

In Lawhorne v. Lutron Electronics Co., Inc. (WCAB), No. 1132 C.D. 2021 (Pa.Cmwlth. October 18, 2022), the Court once again looked into Section 440(a), like it did the year prior with Lorino v. WCAB (Commonwealth of PA/Penn Dot), 266 A.3d 487 (Pa. 2021).  In Lorino, the Court found that payment of counsel fees by the Employer/Insurer/Carrier was mandatory if the Claimant prevailed but could be excluded by the Judge in the event of a reasonable contest.  In Lawhorne, the Court once again review 440(a) of the Workers' Compensation Act, 77 P.S. §996(a), and determined that a claimant must be awarded reasonable litigation costs should the claimant prevails in part or whole, even if the costs incurred did not directly contribute to the success of the matter at issue.

Once again, the Courts looked at the language as being mandatory despite the Workers’ Compensation Judge having specifically concluded that the testimony offered by the Claimant’s medical expert was not credible and did not aide in the determination by the Judge that the Employer did not prevail on its Petition to Terminate Compensation Benefits.  In the past, these costs would have properly been excluded.  At least there was a dissent in Lawhorn, as it was noted that the Claimant could present with a number of medical experts who are not credible or even may not be contemptuous.  The dissent focused on the language “reasonable” cost and noted that this should allow discretion in the Workers’ Compensation Judge to determine whether the costs incurred are those that should be reimbursed.  I would think that the defense bar should continue to focus on the language in the dissent moving forward to argue for the Judge to be able to apply discretion to what costs are to be reimbursed as opposed to applying a standard that should the Claimant prevail, even if only in part, then all costs are required to be reimbursed.