Tuesday, October 22, 2013

Dear Insurer, Would you please pay for my Massage? ... Thank You!

Massage as a "Reasonable and Necessary" work-related Medical Treatment.
An Employer is responsible for reimbursement of medical treatment expenses which are:
Necessary and
Causally Related to a compensable work injury.

An Employer may remain responsible for medical expense reimbursements for a compensable work injury, until the parties enter into a compensation agreement or a WCJ issues a decision regarding ongoing responsibility.

The parties may enter into a Compromise & Release settlement agreement (LIBC-755) regarding indemnity wage loss benefits and not alter the rights and responsibilities of each party regarding medical expenses. In this instance, the "finality" desired in many settlement agreements, may not occur.

Moran v. WCAB (McCarthy Flowers), No. 830 C.D. 2013, a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McGinley on October 16, 2013, addressed this "post-settlement" medical expense issue.

Factual and Procedural Background
Employee injured his low back, described as an L4-5 disc herniation, in July 1997.
About 5 years later, the Employee and Employer entered into a Compromise & Release settlement for a lump sum of indemnity wage loss benefits. Responsibility of the Employer for reasonable and necessary medical expenses continued.

Employer filed a Utilization Review request (LIBC-601) in May 2010, to challenge the reasonableness and necessity of treatments rendered to Employee by Gail Kozlowski, LPN, including massage therapy.

The Employer's UR request was assigned to Rehabilitation Planning Inc, by the Bureau of Workers' Compensation. Heather Krull, LPN issued a UR determination in July 2010.

UR Determination was that massage therapy, (understood as NMT, friction and myofascial release/compression, application of a topical pain reliever "ChinaGel", was not reasonable,  as provided by Kozlowski, LPN.

Employee Petition to Review the UR Determination before the WCJ.

Employee submitted 2 reports from Kozlowski. She provided massage for low back pain, under the prescription, direction and recommendation of Dr. Michael D. Wolk.
She performed this therapeutic treatment :
  • within the scope of her practice; 
  • during her nursing training she learned basic massage strokes;
  • she furthered her education at Allied Medical and Technical Centers, receiving certification after completing 900+  hours of training;
  • she continued to become a teaching assistant in the AM&T program;
  • she received her National Certification after examination;
  • she is a member of the National Association of Nurse Massage Therapists;
  • she was accepted as a "provider" in an e-mail from Eileen K. Wunsch, Chief of Health Care Services Review of the Bureau of Workers' Compensation.
[ Query: did Wunsch have the statutory authority to provide any statement of who is/is not a "provider" pursuant to the Pennsylvania Workers' Compensation Act?
The term "provider" is defined at Section 109 and Regulation 127.3 as "a health care provider".]

WCJ Decision
WCJ found: Kozlowski meets the definition of a "health care provider";
She is licensed by PA as a Licensed Practical Nurse;
She provided treatment under the order of Dr. Wolk.

WCJ rejected Employer argument that this case was bound by the holding of the prior appellate court decision at Boleratz v. WCAB (Airgas, Inc.) 932 A.2d 1014 Pa. Cmwlth. 2007).
Boleratz denied reimbursement to a non-licensed healthcare provider for massage therapy.
HERE, Kozlowski is a licensed healthcare provider.

WCJ noted he addressed the "credentials" of Kozlowski to provide massage therapy treatments in 2 prior decisions.
WCJ noted  Employer evidence from Krull only addressed the "credentials" of Kozlowski to provide this treatment, this evidence did not address the "merits" of the massage therapy provided.

The RESULT. The Employee petition was granted to the extent that Employer only argued that Kozlowski could not even provide these massage services. On this basis, the Employee petition was granted, the UR Determination was "reversed" and Employer remained responsible for payment of this work-related treatment.

WCAB reversed the WCJ in Employer appeal.
Nothing in the evidentary record supports the assertion that massage therapy is within the scope of the practice of Kozlowski as an LPN.
Massage must be a medical service which the provider (Kozlowski) is licensed to provide pursuant to physician orders.
As Kozlowski has a certificate, but is not licensed by PA as a massage therapist, her services for massage therapy are not reimbursable under the Act. slip opinion page 6.

Commonwealth Court reversed and reinstated the WCJ decision to allow reimbursement.
1. In Utilization Review, Employer bears the burden of proving that the challenged treatment is not reasonable or necessary, throughout the proceedings.

2. There is a rebuttable presumption that treatment is reasonable and necessary.

3. Treatment may be considered reasonable and necessary, even if it is designed to manage symptoms rather than cure or permanently improve the underlying condition. See: Cruz v. WCAB (Philadelphia Club), 728 A.2d 413, (Pa. Cmwlth. 1999).

4. Boleratz decision is distinguishable from the instant case.
Boleratz received massage from Ms. Bell pursuant to a prescription written by Dr. Bernard Proy.
Bell was not licensed to perform massage and was not supervised by Dr. Proy
Employer refused to reimburse this treatment.
Court ruled, Bell was not a healthcare provider, even though she provided massage pursuant to a referral from a healthcare provider.
Employers must pay for medical services rendered by healthcare providers. A provider must be licensed or authorized to provide healthcare services, in order to be reimbursed.

5. HERE, Kozlowski is a Licensed Practical Nurse.
A Nurse is a healthcare provider under the Act.
Massage was prescribed by Dr. Wolk.
Kozlowski reports detailed her training in massage therapy as part of her LPN training.
She utilized massage in providing therapeutic care to patients.

The statute describing care authorized by LPN's states (in part) ...
the LPN functions as a member of the health-care team ... LPN administers medication and carries out therapeutic treatment ordered for the patient ... the LPN may accept a written order for medication and therapeutic treatment from a practitioner authorized by law and by facility policy to issue orders for medical and therapeutic measures.  See: Pa. Code 21.145(a)-(b)(1).

Employer failed to establish that massage therapy did not come under the duties of an LPN.
Employer evidence (the UR Determination) failed to address the merits of whether the treatment rendered by Kozlowski was reasonable and necessary.

Practice pointers:
1. This Employer suffers a poor result, primarily based upon the limits of the UR Determination. 
Employer does not "pick' the UR, you get an assignment Bureau. Employer was "stuck" with this evidence. 
Employer was not provided the remedy requested.

2. IMHO, if the UR does not address all of the PERTINENT issues, such as the basic issue of "Reasonableness and Necessity of treatments", the Employer should not be penalized. This case should be re-assigned by the Bureau so that the Employer get get what they ask for ... a report regarding the "reasonableness and Necessity' of treatment rendered!!!
Seems pretty basic.

3. This decision DOES NOT stand for the proposition that ALL massage by an LPN is automatically "reasonable and necessary" treatment.

4. This decision DOES NOT stand for the proposition that ALL massage is treatment authorized for any LPN. The decisive factor in this case, was the training of the person providing the massage. In the event your LPN does not have this specialized training .... then the treatment is not authorized. 

5. Get the credentials of the person providing any treatment. Get the Physician orders.

6. Get the medical records ... was this care reasonably and necessary?
Was there ANY treatment effect recorded?

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