Best Practices for Utilization Review when a Provider "supervises" adjunctive medical treatment modalities.

A Utilization Review Request is a valuable and necessary remedy for Employers and Insurers in the handling of Pennsylvania work injury claims. 

Proper UR filing requires proper identification of the "Provider under Review".

When multiple medical treatment regimens are provided -  the identification of the "provider" may become confusing. A recent appellate decision addressed this issue and provided valuable guidance. 

Daisy Rodriguez, M.D. v. WCAB (First Group America) No. 520 CD 2020 Memorandum Opinion (opinion not reported) filed February 10, 2021.

Daisy Rodriguez, M.D. (provider) filed a Petition for Review to the Commonwealth Court from an adverse ruling by the Workers’ Compensation Appeal Board (WCAB). The WCAB affirmed the Decision of the Workers’ Compensation Judge, which held that certain medical treatments to Claimant for his work-related back injury were were not reasonable or necessary after January 2, 2018.  On appeal, the Commonwealth Court rejected the Provider’s argument that First Group America (Employer) did not meet its burden of proof.

Claimant was involved in a motor vehicle accident in his position as a bus driver on September 22, 2017.  Shortly thereafter, he commenced treatment with the Provider.  The Employer issued an amended Notice of Temporary Compensation Payable (NTCP) describing the work injury as “a low back sprain or tear”.  A Subsequent NTCP described the work injury as “low back inflammation”. 

The Employer requested a Utilization Review of “any and all treatment including but not limited to acupuncture, cupping, moxibustion, and crunches " provided to Claimant from January 2, 2018 and thereafter, under the provider’s prescription and supervision.

NOTE: moxibustion is a form of acupuncture where a small intense heat source is placed on certain acupuncture meridians in order to stimulate the flow of “chi life energy”.  Cupping is a procedure used to drain excess fluids and toxins.

The Utilization Review Organization Report of review of Claimant’s treatment was authored by Dr. James Wasson on April 3, 2018.  Dr. Wasson concluded that the Provider’s medications and monthly evaluations of claimant were reasonable and necessary as of January 2, 2018 and for six months thereafter.  However, Dr. Wasson concluded that acupuncture, chiropractic care and physiatric care provided to Claimant were not reasonable and necessary as of January 2, 2018.  Dr. Wasson explained that Claimant received 62 separate acupuncture treatments and frequent physical therapy and chiropractic treatments, all of which “had limited, if any, long-term benefit”.

Provider filed a timely Utilization Review petition and the WCJ conducted a de novo hearing.  Employer has the burden of proof in this proceeding.  Employer submitted the Utilization Review report of Dr. Wasson. Also, Employer submitted the independent medical evaluation report of Dr. Christopher Selgrath, D.O., dated July 12, 2018.  Dr. Selgrath found that Claimant had full range of motion in his cervical and lumbar spine. Examination of both upper extremities was normal.  Dr. Selgrath opined Claimant had fully recovered from the work-related injury and required no further treatment.  Employer submitted Provider’s physical capacities evaluation, which released Claimant to sedentary work with restrictions as of December 7, 2017.  

In support of the Utilization Review petition, Provider presented testimony and documentary evidence.  Claimant testified he began treating with the Provider within a week of the injury.  He received the aforementioned treatment modalities, together with massage therapy and stretching exercises.  He said he found these treatments to be helpful, explaining they reduced his pain.  When asked about the acupuncture, he responded it helped his low back a lot and his neck and the pain was a lot lighter, milder by January.

Provider issued a narrative report which reviewed her treatment plan for chronic pain management and functional maintenance.  She did not believe a cure or even significant improvement in function were reasonable expectations - given the severity of Claimant’s condition.  She opined the medications and therapies at issue were reasonable and necessary for control of Claimant’s moderate-to-severe pain.  

The WCJ denied Provider’s Utilization Review petition and credited Dr. Wasson’s opinion that Claimant’s chiropractic, acupuncture and physiatric care were not reasonable and necessary after January 2, 2018.  The WCJ found that Dr. Wasson’s opinion was confirmed by the fact that Claimant ended these treatments.  The WCJ also credited Dr. Selgrath’s opinion that claimant did not need any further treatment as of July 12, 2018 (the date of the IME).  The WCJ did not credit the testimony of Claimant where it differed from the opinions of Dr. Wasson and Dr. Selgrath.  The WCJ noted that Claimant returned to work on a full-time basis on November 6, 2017 and he did not testify as to any difficulties performing his job duties, notwithstanding his Provider’s work restrictions.  The WCJ did not credit Provider’s opinion, noting she recommended continued treatment even though Claimant had discontinued her recommended course of treatment on his own.

In Provider’s appeal to the WCAB, she argued that Dr. Wasson’s opinion was legally defective and in part invalid.  She argued it was improper for Dr. Wasson to conclude prescription medications and monthly evaluations would become unreasonable at a point six months into the future. She also argued that Dr. Wasson opined on treatment rendered by providers whose services were not under review and who have licensure and qualifications not held by Dr. Wasson.  

The WCAB affirmed the WCJ and explained that the issue of reasonableness and necessity of treatment six months after January 2, 2018 was now moot as Claimant discontinued treatment with the provider at the end of April of 2018. 

Regarding Provider’s argument that Dr. Wasson’s review of treatment by professionals not named in the Utilization Review request - the WCAB noted that provider had prescribed these therapies and they were administered at her office. further, the Provider had certified that these prescribed treatments were reasonable and necessary.  The WCAB reasoned that if Provider was competent to prescribe and supervise acupuncture, moxibustion, cupping, and chiropractic treatment, then Dr. Wasson was competent to review that treatment and determine whether it was reasonable and necessary.  The WCAB concluded that the opinions of Dr. Wasson were substantial competent evidence that supported the WCJ Decision to deny the Provider’s petition for review of the utilization review determination.

On Provider’s appeal to the Commonwealth Court, Provider raised three issues.  First, she argued that Employer’s utilization review petition failed to identify the separately licensed acupuncturists and chiropractors as required by 34 Pa. Code § 127.452(d).  Second, she argued that the WCJ erred in relying on Dr. Wasson’s report, because he was not a licensed acupuncturist or chiropractor.  Third, Provider argued that the WCAB exceeded its scope of review by introducing issues not before it.  

The Commonwealth Court affirmed the Decision of the WCAB and WCJ.  The Court reviewed Section 306(f.1)(6) of the Workers’ Compensation Act that establishes the procedure for resolving disputes about whether treatment of a work injury is reasonable and necessary.  Subparagraph 306(f.1)(6)(i) includes the requirement:

 “utilization review of all treatment rendered by a healthcare provider shall be performed by a provider licensed in the same profession and having the same or similar specialty as that of the provider of the treatment under review”. 

The Commonwealth Court referenced the regulations adopted by the Bureau of Workers’ Compensation regarding Utilization Review.  Regulation Section 127.452(d) states that:

“the request for UR shall identify the provider under review.  Except as specified in subsection (e), the provider under review shall be the provider who rendered the treatment or service which is the subject of the UR request". 

Subsection (e) reads as follows:  

"when the treatment or service requested to be reviewed is anesthesia, incident to surgical procedures, diagnostic tests, prescriptions or durable medical equipment, the request for UR shall identify the provider who made the referral, ordered or prescribed the treatment or service as the provider under review".  (emphasis supplied) See: 34 Pa. Code § 127.452(e). 

Provider argued that § 127.452(d) required the Employer to identify the separately licensed acupuncturists and chiropractors as the "provider" under review in its UR request. She offered this argument as she did not administer those treatments.  

In response to this argument, the Commonwealth Court cited its decision in MV Transportation v. WCAB (Harrington), 990 A.2d 118 (Pa. Cmwlth. 2010).  In that case, that employer requested a Utilization Review of a claimant’s physical therapy and identified one licensed physical therapist as the provider under review. The Court held this wass proper as the employer did not need to identify each individual physical therapist as a separate provider when seeking review of a course of physical therapy treatment.  “… it made little sense to request a separate review of each therapist providing treatment under the direction of the same physician”.  (page 122-123).  

The MV Transportation decision reversed the underlying WCJ Decision and concluded that when making a UR request for physical therapy prescribed by a doctor and administered in that doctor’s facility under his or her supervision, the employer must name the doctor prescribing the physical therapy and the facility where the claimant receives that treatment.

The Court analogized the MV Transportation case to the present situation where the challenged course of treatment was carried out by acupuncturists and chiropractors acting under the provider’s supervision in her office.  In her report, the Provider stated that she examined Claimant on a monthly basis to determine if she needed to change any of his treatment. Provider stated that Claimant required supervised therapies to assure compliance with her prescription for palliative care.  Although the MV Transportation case dealt with one type of treatment - physical therapy - and where the present case deals with a variety of treatments - nevertheless, the logic of MV Transportation applies.  

The Court held that the Employer does not need to name each chiropractor and each acupuncturist as the “provider” must seek a review of the claimant’s course of care.  The Court found this to be consistent with § 127.452(e) which does not require each provider to be named in a UR request where a “prescription” for treatment or services under review.  In the present case, the Provider under review, not only prescribed but also supervised the Claimant’s entire treatment regimen.  Stated otherwise, the provider arguably “rendered” the “service” which was the subject of the utilization review request. As the Provider supervised Claimant’s entire treatment regimen, it was not necessary for the Employer to file UR requests for each provider of treatment.  By filing a UR request identifying a provider as a "provider under review" rendering the challenged treatments, this Employer satisfied the requirements of § 127.452(d). 

The Commonwealth Court rejected the Provider’s second argument that the WCJ erred in relying upon Dr. Wasson’s UR report because he did not have qualifications to render an opinion on treatment provided by licensed chiropractors and acupuncturists.  The Commonwealth Court referenced its prior decision in Leca v. WCAB (Philadelphia School District), 39 A.3d 631 (Pa. Cmwlth. 2012) where the employer filed a UR request with respect to a claimant’s ongoing chiropractic care and the employer offered the opinion of an orthopedic surgeon who concluded that chiropractic care six times per week could not be justified given the lack of improvement in claimant.  This Commonwealth Court decision affirmed the Decision of that WCJ, relying upon the general rule that a physician is competent to testify in specialized areas of medicine even though the physician is neither a specialist nor certified in those fields.  It was not an error for the WCJ to consider the opinion of an orthopedic surgeon when considering a challenge to the reasonableness and necessity of chiropractic treatment. 

In the case sub judice, Dr. Wasson is a medical doctor licensed in internal medicine - as is the Provider.  The Court noted that in the review of a Utilization Review Determination pursuant to § 306(f.1), the Workers’ Compensation Judge is obligated to consider the UR report as evidence but is not bound by the report.  Thus, the WCJ is authorized to consider the opinions of Dr. Wasson. The weight and credibility to be assigned by the WCJ to Dr. Wasson’s UR report - as with any other evidence - is for the factfinder.  Issues as to the weight and credibility of evidence belongs to the Workers’ Compensation Judge.  

Here, the Employer met its burden of proof in the instant Utilization Review as the WCJ credited the opinions of Dr. Wasson and Dr. Selgrath, concluding that the challenged treatment was not reasonable and necessary. 

The third argument of Provider was that the WCAB improperly introduced an issue into this appeal - as the WCJ decision did not address the Provider's challenge to the validity of the determination of Dr. Wasson - so the Board erred in addressing that issue.  The Court noted that Provider challenged the validity of the UR determination, the fact that the WCJ did not specifically address the legal argument regarding separately licensed professionals, did not preclude the Board from addressing that same argument on appeal, as the Provider raised that argument.  

The Court held the WCJ made the credibility determinations necessary to his conclusion that the course of treatment prescribed by the Provider to treat Claimant’s work injury was not reasonable and necessary.  On this basis, the WCAB did not exceed its scope of review by addressing the Provider’s arguments about the invalidity of the UR determination.

Recommendations:

When filing a UR Request, carefully review the medical treatment records and billing statements to identify the prescribing healthcare provider. Is the prescribing provider also providing or supervising the care? 

Or is the treatment referral to an independent healthcare provider?  The identification of the provider may change the "provider under review". 

When in doubt, review this issue.

An Employee is required to give "timely" notice of a work injury to the Employer

An Employee is required to give "timely" notice of a work injury to the Employer 

The Employee notice of the occurrence of a work-related injury is an essential element of one's burden of proving a compensable claim.

Section 311 of the Act provides " no compensation shall be due until such notice be given and unless such notice be given within 120 days after the occurrence of the injury, no compensation shall be allowed.

Recently a question arose as to the calculation of the 120 day time period for proper notice of injury to the employer. In Holy Redeemer Hosp. Systems v. WCAB (Figueroa), Pa. Cmwlth. No. 372 C.D. 2020, December 31, 2020, the Commonwealth Court affirmed the decision of the WCAB. The WCAB affirmed the decision of the WCJ that Claimant sustained her burden of proof of all of the elements of her claim petition, but the WCB reveresed the conclusion of the WCJ that Claimant failed to provided timely notice of a work injury to the Employer.

The pertinent facts reflect the Claimant worked on July 25, 2015, as an emergency room nurse. She experienced significant pain in her leg, which increased over the course of her work shift.  She took off her next scheduled work day and visited her physician . He took Claimant off work. On Monday November 23, 2015, Claimant notified the Employer that she sustained a work injury on July 25, 2015. 

She gave notice of her work injury on the 121^st day after her work injury, which was a Monday.  The Employer issued a NTCP, followed by a Notice Stopping an a Notice of Denial.

This legal issue arose as Monday July 25, 2015 was the 121st day after her alleged work injury. The 120th day fell on a Sunday. Why was Claimant's notice of a work injury on Monday considered "timely" ? Section 1908 of the Statutory Construction Act of 1972, provides the correct answer to this question. which states as follows:

 "When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title  (relating  to  publication  for successive  weeks)  and  section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period.  Whenever the last day of any such period shall fall on Saturday or Sunday, or any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.

In the case sub judice, when the 120^th day to give notice of her work injury under Section 311 of the Act falls on a Sunday, her notice of injury on Monday was timely. Employer's appeal was limited to the notice issue. The Court rejected the Employer argument that the language of Section 311 is not ambiguous, therefore the WCAB erred by applying the Statutory Construction Act.