Commonwealth Court Rules Claimant May Not Seek Review of the Determination of a URO That the Provider Did Not Properly Submit Records

In L. Sexton v. WCAB (Forest Park Health Center) the Employer filed a request for utilization review. The Provider forwarded treatment records in a timely manner, but did not complete a verification. The URO sent the records back to the Provider. They were not returned. The URO found the treatment unreasonable and unnecessary under 34 Pa. Code Section 127.464(a).

The Claimant was entitled to file a Petition to Review Utilization Review Determination to seek review of the URO's determination. Under HCR Manorcare v. Workers’ Comp. Appeal Bd. (Bollman), 951 A.2d 1242 (Pa. Cmwlth. 2008) and Gazzola v. Workers’ Comp. Appeal Bd. (Ikon Office Solutions), 911 A.2d 662 (Pa. Cmwlth. 2006) the WCJ can vacate the determination and order that the records be sent to a reviewer for a URO determination on the merits.

Although the WCJ did this after hearing evidence the provider did execute the authorization, the Board reversed the WCJ's determination and the Court affirmed. The Court held the URO complied with 34 Pa. Code section 127.464(b) which provides: Before rendering the determination against the provider, a URO shall do the following: (1) Determine whether the records were mailed in a timely manner. (2) Indicate on the determination that the records were requested but not provided. (3) Adequately document the attempt to obtain records from the provider under review, including a copy of the certified mail return receipt from the request for records.

The Court stated the URO had no choice but to deem the treatments unreasonable and unnecessary because the records were not properly submitted due to the lack of the required verification form. The Court also stated where no utilization report is issued, the reasonableness of the bills submitted are final and cannot be appealed to the WCJ, citing County of Allegheny v. Workers’ Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005).

The majority's decision therefore extinguishes the right of the Claimant to seek review of a URO's 34 Pa. Code section 127.464(b) detemination by filing a Petition to Review Utilization Review Determination.

The majority did not discuss the more recent precedents of HCR Manorcare and Gazzola. Judge Butler authored a dissent stating these precedents were properly applied by the WCJ.

City Can Subrogate Heart & Lung Act Claim Against Third Party Recovery

In City of Wilkes-Barre vs. Robert P. Sheils, Jr., Trustee in Bankrupcy, George W. Cole, Debtor the Third Circuit Court of Appeals held a municipality that pays Heart and Lung Act benefits has a subrogation interest against a third party recovery. The District Court held the subrogation claim was barred by Section 1720 of the Motor Vehicle Financial Responsibility Law.

The Third Circuit identified Brown v. Rosenberger and Coca-Cola Bottling Company as the controlling precedent of the Commonwealth Court and held the 1993 repeal of Section 1720 and 1722 as they relate to workers' compensation benefits also was a repeal as to Heart & Lung Act benefits. The Court looked at the identity of these payments and the inequity of not allowing recovery against a third-party tort-feasor for all losses sustained.

Blair County Chamber Risk/Safety Committee and Human Resource Mgt. Assn. of Blair County -- “Ten Ways to Lose a Workers' Compensation Case"

The following citations are provided as a follow up to my recent presentation to the Blair County Chamber of Commerce Risk/Safety Committee and Human Resource Management Association of Blair County entitled “Ten Ways to Lose a Workers’ Compensation Case”

“Outliers” by Malcolm Gladwell

Maxim Crane Works v W.C.A.B. (Solano) – The Employer may not take a retroactive credit under Section 204(a) of the Act until the Employer has sent the LIBC-756 Employee’s report of Benefits.

Motor Coils Manufacturing/WABTEC v. W.C.A.B. (Bish) – The Employer may not modify benefits based on a job with the pre-injury employer when the Claimant has moved out of state in good faith.

Riddle v. W.C.A.B. (Allegheny City Electric, Inc.) - The Employer may, however, modify benefits based on a labor market survey in the place of the Claimant’s new residence out of state. Even though the Act does not provide for this remedy, the Employer acted in good faith.

Pries v. W.C.A.B. (Verizon Pennsylvania) – Commonwealth Court case holding that to reinstate benefits after retirement, the Claimant has the burden to show the Claimant is disabled from all work.

But see Gray v W.C.A.B. (Philadelphia Housing Authority) decided by the Supreme Court on January 12, 2009 – The Claimant, who was released to return to work by her physician, took a regular retirement. The WCJ suspended benefits and the Board and Commonwealth Court affirmed. (The Commonwealth Court opinion appears to be unpublished) The Supreme Court directed reinstatement of benefits based on the Claimant’s statement that she felt she had too much pain to continue.

From the New York Times: “Study Finds Settling Is Better Than Going to Trial”

Proposed Amendments to Workers' Compensation Judges' Rules Published in Pennsylvania Bulletin

The proposed amendments to the Special Rules of Practice and Procedure Before Workers' Compensation Judges were published Saturday in the Pennsylvania Bulletin. The proposed regulations provide for electronic filings with the Bureau and the Board and include regulations consistent with procedures that have been put in place since Act 147 and Act 109 (dealing with support obligations).

Significant changes are the detailed procedure for withdrawal of appearance of counsel and a prohibition of WCJ's performing mandatory mediation in their own cases. A settlement conference with the adjudicating judge may still be conducted if all parties and the adjudicating judge agree.

Commonwealth Court holds home health nurse is traveling employee from her home to patient's home

In L. Jamison v. WCAB (Gallagher Home Health Services) the Claimant worked as a home health nurse. She also worked for another home health service and a mortgage company. Gallagher Home Health Services (Gallagher) allowed the Claimant to pursue her other employment and personal errands during the work day. She was paid by Gallagher only for the time spent with a patient. She received mileage reimbursement when she left one patient's home to travel to another's.

The Claimant was injured in an auto accident on her way from her home to the home of Gallagher's patient. The WCJ found the Claimant was not in the scope of employment because she could be working for any employer on a given day. The Board affirmed, but the Commonwealth Court reversed. The Court stated the record showed the Claimant was going to the home of Gallagher's patient. If the record showed she was going somewhere else, there could have been an abandonment of employment, but that was not the case.

The Claimant's travel was necessary to provide in-home care, the Claimant did not have to report to the Employer's main office before or after the visit, and the Claimant had no fixed place of employment. Accordingly, she was in traveling employee status with Gallagher when she was injured while driving from her home to the patient's home.

Commonwealth Court holds IRE doctor must testify the Claimant has reached maximum medical improvement

In C. Combine v. WCAB (Nat'l Fuel Gas Distribution Corp) the Claimant underwent an IRE, which found a twenty per cent (20%) total body impairment resulting from a right knee injury. The Employer filed a Modification Petition.

The IRE physician admitted the Claimant has persistent swelling, medial laxity and discomfort following a partial knee replacement. The physician admitted a total knee replacement could improve the Claimant’s condition.

Most importantly, the physician testified he did not evaluate the Claimant to determine whether the Claimant reached maximum medical improvement. The doctor explained the nature of the examination would be different, and the doctor’s understanding was a finding of MMI was not necessary to complete an IRE under Pennsylvania law.

The WCJ accepted the premise that MMI did not need to be determined. The statute and regulations do not mention MMI. The WCJ granted the modification petition, and the Board affirmed.

The Commonwealth Court reversed. The Court looked to the AMA Guides, which state impairment ratings are to be performed when an individual is at a state of permanency. The Guides state this term is usually synonomous with MMI. The Court also stated an MMI requirement is consistent with the 104 week prerequisite and the six month waiting period between IREs [sic IMEs - see Section 306(a.2)(6)].

Counsel should anticipate the Court interpreting and valuing the provisions of the Guides.

Chapter 1.8 in the Fifth Edition provides impairment percentages account for basic activities of daily living, not including work, and further individual analysis of work activities is required to determine disability. Sound familiar?

New York Times previews study of how parties fared when they rejected settlement and went to trial

A study of outcomes for parties who rejected settlement and went to trial will be published in the September Journal of Empirical Legal Studies. In this preview, the New York Times touches upon some of the issues that cause parties not to settle.
Overall, the study reported plaintiffs got less in 61% of cases, while defendants paid more in 24% of cases. In 15% of cases the result fell in the range between the last demand and the last offer. Randall L. Kiser, a co-author of the study, said the lesson for plaintiffs is to not view the defendant’s offer as half a loaf. The study results suggest defendants' offers are the full loaf or more.

Another interesting observation is that uninsured defendants have a higher error rate. Defendants won’t bankrupt themselves in a settlement, even if they know a verdict will bankrupt them. The graphic attached to the article shows the stakes were much higher in the cases where the defendant fared worse. It would be interesting to look at how the outcome was measured. If it doesn't continue to collection, even more plaintiffs are making bad decisions.

Commonwealth Court reaffirms standard for notice in occupational hearing loss claims

In Crompton Corporation v. WCAB (King) the Claimant filed a claim for occupationally induced hearing loss on April 2, 2004, and thus provided notice of the claim to the Employer. The Employer identified a new patient information sheet completed by the Claimant on May 7, 2002, on which the Claimant indicated to his physician he believed his hearing loss was work-related. The WCJ and Board nevertheless found the Claimant gave notice within 120 days of the date of injury.

The Court affirmed. The primary rule, as stated by the court in Socha v. Workers' Compensation Appeal Board (Bell Atlantic PA), 725 A.2d 1276 (Pa. Cmwlth. 1999) (Socha I), aff'd, 566 Pa. 602, 783 A.2d 288 (2001) (plurality) (Socha II) is that the Claimant must be informed by a doctor that he has a compensable work related hearing loss. In this case, the report establishing this was dated February 27, 2004. Furthermore, the Claimant continued to work and presumably his exposure continued. Accordingly, his date of injury would be April 2, 2004, the date of filing, pursuant to Section 306(c)(8)(ix) of the Act.

Centers for Medicare and Medicaid Services determines thermal intradiscal procedures are not reasonable and necessary

An Ortho Supersite article excerpted from the journal Spine states CMS proposes to issue a national non-coverage determination for thermal intradiscal procedures (TIPs). CMS’ review indicates the mechanism of the associated diagnosis – nonspecific chronic low back pain – as well as the mechanism of the treatment are uncertain according to the medical literature.

Commonwealth Court reverses Workers’ Compensation Appeal Board holding that Claimant’s disability began on first day off work

In Albert Einstein Healthcare v. WCAB (Stanford) the WCJ awarded benefits based on the testimony of the Claimant’s doctor that the Claimant was disabled while under his treatment. However, the Claimant did not start treating with the doctor until over a year after her last date of work. The WCJ decided benefits could only be awarded beginning with the doctor’s first evaluation.

The Board modified the WCJ’s decision and awarded benefits as of the first day off work based on the Claimant’s testimony. The Court reversed, holding where the causal connection between the work injury and disability is not obvious, medical testimony establishing the period of disability is required.

Statute of Limitations Waiver and Workers’ Compensation

A Law.com article reports many companies are using and enforcing a waiver limiting statutes of limitations for employment claims to six months. The waiver is executed in the job application. The article refers to employment discrimination claims. The Pennsylvania Workers’ Compensation Act provides parties can’t alter the provisions of the Act except in collective bargaining.

The impact would be that the claimant would have to pursue claims during the first six months of treatment and recovery from the work injury. Although claimants typically waive employment law claims for minimal or no consideration as part of a compromise and release, they certainly would receive no consideration if these claims are barred.

Article on Introductory Joint Session in Mediation

Mediator Robert A. Steinberg recently published an article on opening statements in mediation with several tips for parties to interact with each other in joint sessions. This is particularly valuable given the current discussion suggesting more joint sessions should occur in mediation.

I have been using more joint sessions as opposed to caucuses. All the parties and counsel can put their heads together on the issues discussed. I don’t have to repeat information that needs to be shared, and I don’t run the risk of miscommunication.

Joint sessions are less comfortable for the parties. This article will help counsel and the client to ease this discomfort.

Thanks to Phyllis G. Pollack via Mediate.com Featured Blogs for reproducing this article.