We have discussed “Utilization Review” (UR) on this blog many times. This is the tool used by either party (usually the workers’ compensation insurance carrier) to determine whether any particular treatment is “reasonable and necessary.” To start the UR process, the insurance company must agree the treatment is related to the work injury.
The Courts have made clear that treatment need not cure a condition to be “reasonable and necessary,” stating that relieving the symptoms of an injured worker can be enough. The burden to prove treatment is not “reasonable and necessary” remains with the workers’ comp insurance carrier throughout the UR process.
Most often, we see UR in situations involving treatment which is “palliative” (relieving symptoms) rather than “curative.” This could be concerning chiropractic treatment, therapeutic modalities, medications or injections. An interesting facet, discussing massage therapy, was addressed recently by the Commonwealth Court of Pennsylvania in Moran v. Workers’ Compensation Appeal Board (McCarthy Flowers).
In this case, the injured worker suffered a lumbar disc herniation at the L4-L5 level. The parties settled the “indemnity” aspect of the case (the wage loss part) by Compromise and Release Agreement, but left the medical benefits open. Massage therapy was prescribed by the treating physician, and was rendered by a licensed practical nurse (LPN). The workers’ compensation insurance carrier filed for UR, alleging the massage therapy was not reasonable and necessary. A Utilization Review Determination was issued, which found the treatment not reasonable and necessary because “massage therapy specifically does not fall within the scope of a licensed practical nurse.” The Determination dealt solely with the qualifications of the LPN and did not address the merits of whether the massage therapy itself was reasonable and necessary.
This adverse Determination was appealed by the injured worker and litigated before a Workers’ Compensation Judge (WCJ). After hearing the evidence and arguments by the parties, the WCJ granted the UR Petition, finding that the LPN was a licensed health care professional, who did meet the definition of a health care provider under the Workers’ Compensation Act. The massage therapy was rendered under the orders of the treating physician. The WCJ, therefore, found the argument on qualifications misplaced. The WCJ went on to note that the Determination did not address the merits of the treatment at issue, but the WCJ found the massage therapy reasonable and necessary.
On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed this decision. Citing a previous Commonwealth Court case called Boleratz v. WCAB (Airgas, Inc.), the WCAB said that massage therapy provided by an LPN is not reasonable and necessary (again, going back to qualifications). Specifically, the WCAB said, “There is nothing in the record to support Claimant’s assertion that massage therapy is within the scope of her practice as an LPN.”
The Commonwealth Court of Pennsylvania, however, agreed with the WCJ and reversed the WCAB. The Court distinguished Boleratz, by noting that the person providing the massage therapy in that case was not a “duly licensed medical practitioner” and, on that basis, the Pennsylvania Bureau of Workers’ Compensation refused to even perform UR. In this case, though, the LPN was a health care provider, as that term is defined in the PA Workers’ Compensation Act. The massage therapy was prescribed by a physician. The UR determination did not cite any authority for the proposition that massage therapy was not within the scope of an LPN’s duties. Since the burden of proof remains with the workers’ compensation insurance carrier, “this Court agrees with the WCJ that Employer failed to establish that massage therapy did not come under the duties of an LPN.”
The Court then addressed that the UR Determination failed to actually deal with the merits of the issue – whether the massage therapy itself was reasonable and necessary. Noting, again, that the workers’ comp insurance carrier had the burden of proof, the Court quickly dismissed this argument as well. “Also, because Employer failed to address the merits of whether the treatment rendered by Nurse Kozlowski was reasonable and necessary, Employer does not prevail on that basis either.”