Settlement and Future Medical Expense Liability
The Pennsylvania Workers' Compensation Act provides for the payment of wage loss benefits and medical expenses where an injury is found to be "work related".
As a means to manage the extent of future liability, an Employer may settle the wage loss benefit entitlement of the employee and retain the future obligation to reimburse medical expenses which are reasonable, necessary and causally related to the work injury.
The future medical expense liability may remain significant. One means to attempt to "control" and/or limit future medical expense is to file a Utilization Review request, to have a medical expert review the records of treatment, read a statement from the employee and perhaps discuss the case with the treating medical provider. A written report is issued together with a Utilization Review Determination facesheet. The dissatisfied party may appeal to the Workers' Compensation Judge.
In many older "legacy" cases, the remaining workers' compensation liability is the medical expense.
If one does not challenge the "reasonableness or necessity" via Utilization Review, the remaining remedies are: (1) denial of payment based upon the lack of a causal relationship and/or (2) medical evaluation that the employee has fully recovered from the medical condition and no longer requires medical care.
Petroski v. WCAB (Anemostat Products), No. 436 C.D. 2013, an unreported memorandum opinion of the Commonwealth Court of Pennsylvania authored by President Judge Pellegrini on July 18, 2013, addressed the Utilization Review issue.
Factual & Procedural Background
In 1988 Employee injured her lower back at work. The Employer issued a Notice of Compensation Payable for "a herniated nucleus pulposus". The wage loss benefits were settled, but Employer remained responsible for reasonable and necessary medical expenses, causally related to the work injury.
22 years later the Employer filed a Utilization Review request in November 2010.
Based upon review of the records of treatment of provider Dr. Gilhooley, Employee suffered from chronic pain, insomnia and anxiety.
The UR physician, Dr. Feinstein opined that reasonable and necessary medical treatment included:
(1) office visits, once every 3 months;
(2) prescriptions for skelaxin, xanax and temazepam every 3 months;
(3) prescription for oxycontin for 3 months to March 8, 2011.
Dr Feinstein found there was no evidence that Oxycontin was useful in facilitating employee's normal daily activities and she continued with complains of escalating pain despite relatively high doses of narcotic analgesics.
He concluded it would be reasonable to allow an additional 3 months of Oxycontin use to allow safe weaning or transitioning. slip opinion, page 2.
Employee testified she consumed two 80mg, two 40mg and two 10mg Oxycontin each day.
(her testimony was inconsistent as to her discontinued use of vicodin).
Her testimony was inconsistent regarding any treatment effect; "Oxycontin changed her life" versus she continued to had "excruciating pain".
The provider testified that employee required this medication, to "afford her the greatest quality of life... with the least amount of impairment of other systems".
He admitted on cross that employee stated at times the prescribed level of Oxycontin was not working or that she needed early refills. At one visit she stated her pain was increasing, she did not feel the medication was helping her pain.
The WCJ granted the Utilization Review. The WCAB affirmed. The Commonwealth Court affirmed.
In a Utilization Review, the burden of proof remains on the Employer, to establish the challenged medical treatment is not reasonable or necessary.
An employee may argue that treatment that does not cure the medical condition may be reasonable and necessary, if it acts to relieve pain and treats symptomatology... if it is palliative in nature.
[citing Trafalger House 2001; Glick 2000; Cruz 1999 and Central Highway 1999].
Here, the "palliative" argument fails, as employee offered conflicting testimony as to whether the Oxycontin at prescribed levels was not working well or helping to alleviate her pain or that her pain was actually increasing. The WCJ found her testimony was not credible.
1. This decision demonstrates and effective strategy to challenge and reduce liability for continued opioid use. An important element is the detailed review and documentation of the treatment effect of opioid use, as reported by the patient and recorded by the provider.
2. Narcotic pain medication use remains a significant issue in the workers' compensation system. Employers and Insurers must be more aggressive in the review and challenge to excessive long-term opioid use.