Tuesday, February 11, 2014

The Limited Scope of Medical Fee Review Proceedings - Selective Insurance Co. revisited

The Limited Scope of Medical Fee Review Proceedings.

On December 6, 2013, the Commonwealth Court of Pennsylvania issued an opinion and order in an insurer's appeal, in a Medical Fee Review Petition reported at:
Selective Insurance Company of America v. Bureau of Workers' Compensation Fee Review Hearing Office (The Physical Therapy Institute).
[blog entry December 31, 2013].

The December 6, 2013 opinion concluded that a Medical Fee Review Request is not the appropriate forum to litigate and to determine if a billing company, such as "PTI" a/k/a/ the Physical Therapy Institute, is a medical services "provider", for the purpose of workers' compensation reimbursements and medical fee review remedies.

The Commonwealth Court held that the issue of whether PTI is a "provider" of physical therapy is beyond the scope and jurisdiction of these administrative fee review proceedings. The Fee Review is a simple process with a narrow scope, dealing with the issues of the timeliness or correctness of the amount of reimbursement paid.

The issue of whether PTI is a "provider" entitled to any reimbursement, is a complex issue for a Workers' Compensation Judge to decide. As the Bureau did not have jurisdiction, the Fee Review Determinations were vacated.

The Commonwealth Court granted the PTI Request for Reargument and withdrew the December 6, 2013 opinion and order.

HOWEVER, when the Commonwealth Court issued its final decision on February 4, 2014, the opinion was identical, but for the addition of footnote #9.

Footnote #9 addressed the argument of PTI, that the provider's only recourse is to file a Medical Fee Review Request, as a provider cannot file other types of petitions. Without a Medical Fee Review remedy, the provider would be without any appropriate work comp remedy.

In response, the Court noted that the Work Comp Claimant will often file a petition for Review and/or Penalty, in order to raise the issue of medical expense reimbursements and Employer/Insurer liability to pay.
The Court referenced other known instances where claimants filed a petition to litigate the instant issue of PTI's status as a provider.

The absence of a direct statutory remedy for providers does not mean the Court may expand the scope of review to create a remedy. That is a matter for the legislature.


1. Have an experienced Work Comp Professional review medical billing statements for the presence of any legal argument regarding the "status" of the billing company as a "provider" within the intent and meaning of the Work Comp Act. 

2. Perform a cost - benefit analysis... is the amount in controversy sufficient to justify the time and expense of litigation... is it a recurring charge ... is there a significant difference between the Medicare A and Medicare B reimbursement rates?

 In Selective, the bills involved were $2,080 and $810. I would hazard a guess that these are recurring expenses, justifying this review and challenge.

Wednesday, February 5, 2014

Hurry up ... then wait! Is there Any Remedy for Work Comp Litigation Delays?

A good number of workers' compensation  practitioners limit their legal practice, solely to the area of Workers' Compensation. This is true of many Employee and Employer counsel.

With a volume of cases and the corresponding number of hearings and depositions, there is always the possibility of a scheduling conflict. When legal issues of causation and disability necessitate the involvement of medical experts ... and the corresponding task of records production ... there may be further occasions for delay and scheduling conflicts.

Overall, the work comp system runs rather smoothly ... a testament to the congeniality,  flexibility and professionalism of many participants. At times, conflict arises.

Each party desires a prompt, well-reasoned resolution of their case.
When there are delays in litigation, there are corresponding delays in obtaining a final result.
A party may believe their position is compromised by this delay.

The Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges provide specific time frames for the production of documents, medical examinations and witness testimony.
However, there is some flexibility in these time deadlines as the WCJ may, for good cause, waive or modify these time deadlines. See: 34 Pa. Code Section 131.3(a).

Wagner v. WCAB (Ty Construction Co. Inc.), No. 1202 C.D. 2013 is a published decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge Leavitt on January 3, 2014.
The issue of delay and the remedies of the parties are addressed in a well reasoned opinion.

Factual and Procedural Background
In March 2011, Employee filed a claim petition for disability  due to a diagnosis of small cell lung cancer, alleged as a result of work-related exposure to paint chemicals.
[diagnosis was in January 2011].

The chronology of events, is noteworthy...

April 2011, at the initial hearing the WCJ told counsel to start getting their medical evidence as "it's going to be a long case", recognizing the complexities of this type of litigation.

June 2011, at this hearing (before another WCJ), Employee counsel deferred a medical expert report until documents of the employer work site chemicals were available for review.
Employer counsel agreed to provide this documentation.
The parties agreed Employer would defer a medical exam, until after receipt of Employee's medical expert report.

July 2011, one month later, at this hearing, Employer made a motion for dismissal of the claim petition as Employee failed to produce a medical expert report.
Employee counsel explained that he learned one week earlier that Employee's treating oncologist declined to participate in any legal proceeding. Counsel set out to identify another medical expert.

WCJ denied the motion for dismissal and directed Employee counsel to schedule a deposition of a medical expert with the month.

August 2011, at this hearing, Employer renewed the motion for dismissal.
WCJ granted another 30 days for Employee to obtain a medical expert report, no later than September 24, 2011 or face dismissal of the petition. 

*September 22, 2011 Employee obtained a medical expert report.
*Employer scheduled the medical expert deposition for October 2, 2011

May 2012, the next hearing [footnote 2, the WCJ was on medical leave from January to May of 2012],
The parities "recapped" the events.
Employee Expert deposition was scheduled and postponed so Employer could obtain a medical exam.
Employer medical exam was accomplished in January 2012.
Employee had difficulty rescheduling the October 2011 deposition, due to the Expert's schedule.

Employee requested to defer his medical expert deposition until after the employer witness testified regarding the chemicals used in his business.

WCJ Decision
WCJ granted Employer's renewed Motion for Dismissal, as Employee failed to present evidence within the time limit set by the WCJ.

WCAB affirmed WCJ.

Commonwealth Court Decision
Case was remanded for further proceedings on the merits of Employee's claim petition.

Employee argued:

  • There was no evidence that Employer was prejudiced by the unforeseen delay in submission of Employee's medical evidence.
  • Part of the delay in the litigation was occasioned by Employer.

  • Employee used best efforts to meet the WCJ deadlines and his inability to comply was not his fault, the delay was caused by a third party.

Employer argued:

  •  Employee was given ample opportunity 
  •  it is irrelevant whether Employer was prejudiced

Court Reasoning:
 The Special Rules of Administrative Practice ad Procedure before Workers' Compensation Judges govern procedures, promote orderly and expeditious proceedings, consistent with fairness and due process.
[see: 34 Pa. Code 131.1(a)].

The WCJ may, for good cause, waive or modify time deadlines, including the deadline for submission of medical evidence:
                          " the deposition of a medical expert testifying for the moving party shall be taken
                            within 90 days of the date of the first hearing scheduled unless the time is 
                            extended or shortened by the [WCJ] for good cause shown."
                            [34 Pa. Code 131.63(c)].

Delay cause Prejudice to a Party?
When dealing with the dismissal of a case, the WCJ should not dismiss a case, in the absence of prejudice shown by the moving party. [citing David B. Torrey and Andrew E. Greenberg, Workers' Compensation  Law and Practice, Section 13:119 (West 2008).]

A WCJ dismissal of a case can be set aside for an abuse of discretion.
[Baird v. WCAB (MCTEL), (Pa. Cmwlth. 1992).]

Baird involved a claim petition where the worker did not submit medical evidence over 2 years.
There was an indefinite postponement during the litigation of a related civil claim.
 Employer sought reactivation when Employee did not provide medical reports, as directed by the WCJ.
The worker did not appear for a hearing and the WCJ dismissed the claim!

On appeal the Commonwealth Court reversed, holding, based upon the harshness of this action,
dismissal is only appropriate where prejudice shown by Employer. In Baird there was no prejudice.

A different result was reached in US Airways v. WCAB (McConnell) (Pa. Cmwlth. 2005).
A claim petition was dismissed as claimant failed to attend 3 IME's scheduled by Employer and ordered by the WCJ. The Employer position was prejudiced as they were unable to obtain a pre-surgical IME!

Claim Petition Denial was affirmed on appeal, as the WCJ found prejudice AND the WCJ has discretion to control his docket and order parties to pursue litigation in a timely manner.

Here, Employee argued Baird and US Airways controlled, there must be a finding of prejudice, before there can be a claim dismissal.

Disregard of WCJ direction's
Employer argued Cipollini controls! A finding of "prejudice" is irrelevant.
They believed Cipollini appropriately focused upon the failure of Claimant to present medical evidence, even where directed to do so, by the WCJ.

In Cipollini, Employer objected to the several continuances granted to allow Claimant Attorney to schedule medical expert and fact witness testimony. Counsel failed to do so, despite warnings of closure of the record. The WCJ dismissed the claim because of "counsel's obvious lack of trying".

Dismissal was affirmed, even though claimant's misfortune arose solely from the non-action of her counsel.
Cipollini did not establish that "prejudice" is an irrelevant consideration.
Cipollini was based upon the lack of counsel attempting to comply with directives.

In the instant case, Employee counsel did not ignore WCJ directions, he attempted to comply, even when faced with an unforeseen circumstance, the medical expert refusal to participate in litigation.

The sole factual finding in support of the WCJ claim petition dismissal, is that Employee failed to abide by the WCJ order to schedule a medical deposition by August 19.

This finding was erroneous for 3 reasons:
1. the WCJ had extended this deadline to September 24.
2. Employer agreed Employee met that deadline, the deposition was scheduled , to take place on October 2.
3. This Employee deposition did not take place as Employer counsel requested a continuance!

Reconciling the Rules of law
In Cipollini the delays were caused by claimant counsel.
In contrast, here Employee counsel  met the WCJ deadline.
He scheduled his medical expert and was actively trying to reschedule this deposition ... which was postponed as a courtesy to Employer counsel!

        "Cipollini was not intended to relieve attorneys of the need to be professional
          and respectful of opposing counsel's challenges". slip opinion page 10.

Baird established that a claim petition will not be dismissed for lack of prosecution without evidence of prejudice to the employer.
Cipollini established an exception, where the employee counsel "is not trying".
On these facts, the Cipollini exception does not apply.
Given the lack of prejudice to Employer, the WCJ abused his discretion by dismissing this claim petition.

1. Yes, I have made motions for dismissal.
2. Yes there have been delays in scheduling events in my cases.
3. Yes, at time both attorneys contribute to some delay. 

IMO motions for dismissal are "judgment calls" which must be balanced with the instructions of the client and the existence of "real" prejudice (like US Airways case). 

4. As a general rule, both Employees and Employers want the case to move towards a conclusion. 
This case illustrates the value of case management and keeping the file on your diary ... 
to get things scheduled. 
This remains my New Year's resolution for 2014.