One thing common to every work injury in Pennsylvania is that the injured worker needs medical treatment. The importance of being able to get this treatment, and having it paid for by the workers’ comp insurance carrier, is obviously on the mind of any injured worker. This explains why Utilization Review (UR), the process of determining whether treatment is reasonable and necessary (and, as a result, whether the workers’ compensation insurance carrier has to pay for such treatment), is such a frequent topic on this blog.
Though either side can start the UR process, it is typically filed by the workers’ comp insurance carrier, alleging that treatment to the injured worker is not reasonable or necessary. Once the Pennsylvania Bureau of Workers’ Compensation assigns a Utilization Review Organization (URO) to review the file, the healthcare provider whose treatment is at issue is sent a request from the URO for its records.
We already know from cases decided by the Commonwealth Court of Pennsylvania that the injured worker is sunk if a provider fails to give his records to the URO. In this situation, a UR is not actually performed, so the injured worker cannot appeal a negative result. Considering a UR could theoretically be successful solely on the testimony of the injured worker, we find these cases to be terribly unfair and illogical.
Recently, the Commonwealth Court of Pennsylvania addressed a situation where there were no records to send. In Leventakos v. Workers’ Compensation Appeal Board (Spyros Painting), the injured worker moved to Greece after the work injury (which led to a stoppage of wage loss benefits, but that is a topic for another day). When a UR was filed against the treating doctor in Greece, the doctor drafted a “treatment summary” describing the treatment, and sent it to the URO. The doctor also spoke to the reviewer at the URO on the telephone. There were no records, such as office notes or treatment notes, to send. The reviewer employed by the URO concluded the treatment at issue was not reasonable or necessary due to the “lack of documentation.”
Claimant then filed a Petition for Review of Utilization Review Determination. After hearing the facts, the Workers’ Compensation Judge (WCJ), consistent with the County of Allegheny v. Workers’ Compensation Appeal Board case, decided by Commonwealth Court of Pennsylvania in 2005, dismissed the Petition because she lacked jurisdiction (since there was no Utilization Review Determination done for the WCJ to review). This was affirmed by the Workers’ Compensation Appeal Board (WCAB).
On further appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was again affirmed. The Court said the PA Workers’ Compensation Act requires the “records” to be documents that were prepared contemporaneously with the treatment. A “treatment summary” prepared months after the treatment at issue does not rise to this level. The Court was unmoved by the fact that it is typical in Greece to not keep treatment notes, so there were truly no records for the doctor to send.
One aspect not discussed was how the doctor in Greece submitted his bills to the workers’ comp insurance carrier. Under the Pennsylvania Workers’ Compensation Act, the bills must be submitted on the appropriate forms, with supporting documentation. If this doctor did not properly submit the bills, it is unclear whether the insurance company even had an obligation to pay, perhaps making all of this a moot point. Since the insurance carrier did start the UR process, however, this is not relevant here.
As bad as the County of Allegheny v. Workers’ Compensation Appeal Board case is (and that’s plenty bad), this may be even worse. Here, the doctor did everything in his power to provide the URO with information upon which it could base a meaningful review. Through this loophole, the reviewer elected to just ignore all of this information and say there was insufficient documentation. As noted above, this unfairly restricts the injured worker from submitting any evidence, even his or her own testimony. Since an injured worker could prevail in a Petition for Review of Utilization Review Determination solely through his or her own testimony, it continues to strike us as absurd that the injured worker is denied this opportunity.