Recent Commonwealth Court Ruling Requires Claimants' Doctors To Dot Their "I's" and Cross Their "T's"
Utilization Review ("UR") is the exclusive method under the Pennsylvania Workers' Compensation Act for an employer to challenge the reasonableness and necessity of medical or chiropractic treatment related to a work injury. Under the administrative regulations, the employer initiates the UR process by filing a "Request for Utilization Review" with the Bureau of Workers' Compensation which, in turn, assigns the Request to a "Utilization Review Organization"("URO"). The URO is required to make reasonable efforts to obtain all of the worker's available medical records related to the treatment received for the work injury and to review those records within thirty (30) days. If the health care provider under review fails to provide the records to the URO within thirty (30) days of the request, then the URO shall find that the treatment under review is not reasonable or necessary. 34 Pa. Code Section 127.464(a).
As a lawyer representing injured workers in the Pittsburgh, Pennsylvania area, I'm always concerned about my clients' health care providers forwarding copies of their records to the URO within thirty days and try to notify physicians and chiropractors who may not be familiar with the utilization review process to submit their records in a timely manner. In Sexton v. WCAB(Forest Park Health Center), No. 1225 C.D. 2009 (May 22, 2009) , Commonwealth Court recently made it abundantly clear that it requires strict compliance with the utilization reveiw procedure. In the Sexton case, the claimant injured her low back in April 1999 and she began to receive "myoblock" injections to relieve her pain in 2004 from a Dr. Kosenko. The employer filed a request for utilization review that was assigned to a URO, which, in turn, requested Dr. Kosenko's records. The Court states in its opinion that the records were submitted to the URO within thirty-days of the request, but that Dr. Kosenko failed to submit a signed verification form with the records as required by the administrative regulations. Instead of simply forwarding the records on to a reviewer, the URO returned the records to Dr. Kosenko and requested that the records be resubmitted with a signed verification form. The Court further states in its opinion that although Dr. Kosenko signed the verification form, the Carlisle Regional Medical Center failed to forward the signed verification form and the URO ultimately concluded that the treatment was not reasonable and necessary.
Claimant filed a Petition to Review the UR Determination and the Workers' Compensation Judge ('WCJ") concluded that the URO erred in failing to conduct a review of the treatment on the merits. The Workers' Compensation Appeal Board reversed, holding that the claimant's doctor failed to submit a timely verification form. On appeal to Commonwealth Court, the claimant argued that the URO did not have authority to return the medical records and should have forwarded the records to a reviewer even though the doctor did not submit a signed verification. Unfortunately for injured workers, the Commonwealth Court held that the failure to submit a signed verification with the records was the same as an outright failure to submit the records and that the URO was required to find the treatment unreasonable and unnecessary. In dissent, Judge Butler pointed out that Workers' Compensation Act is humanitarian legislation that is meant to be interpreted in favor of the injured worker. He also noted that the Court's ruling penalizes the claimant even though her medical records were submitted to the URO and further noted that the claimant is not permitted to submit the records herself directly to the URO. Thus, in Judge Butler's view, the employer was permitted to escape responsibility for the pain relief treatments based on a procedural technicality. While Judge Butler's points are certainly well taken, the decision was issued by a full panel of the Commonwealth Court sitting en banc so the only way this decision is going to be reversed is by a change in the administrative regulations or by the Pennsylvania Supreme Court.
The Sexton case makes clear tha now, more than ever, injured workers must make sure that their treating doctors fully comply with the UR procedural regulations or risk being cut off from treatment with no realistic ability to appeal the adverse UR determination.
