Best Practices – WCAB Appeals and Medical Expense Denials
A recent Memorandum Opinion of the Commonwealth Court highlighted the necessity for the Workers’ Compensation practitioner to carefully draft the averments in the Appeal Documents filed with the Pennsylvania Workers’ Compensation Appeal Board.
The Court also reviewed the appropriateness of an assessment of penalties where there is a unilateral cessation of medical expense reimbursement where the employer liability for medical expenses has been established. The “risk” involved in the denial of medical expenses based upon a causal relation argument was reviewed.
In W&W Contractors v.
WCAB (Holmes); 836 C.D. 2020; Commonwealth
Court Memorandum Opinion filed June 28, 2021 An Employer appealed the decision of the
Workers’ Compensation Judge and WCAB to grant in part and deny in part, the Employer’s
termination petition and to grant claimant’s unreasonable contest attorney’s
fee request and penalty petition. (the termination issue was not appealed).
The
Commonwealth Court affirmed the underlying decision that found the Employer
contest of certain medical expenses was unreasonable and further, that
unilateral cessation of medical expense payments was a violation of the Act,
particularly where the employer liability for medical expenses has been
established.
As
noted above, the Commonwealth Court found the Employer did not preserve their
argument on appeal regarding the assessment of attorney fees for an
unreasonable contest. Although the Employer
prepared the proper appeal document and listed the contested findings of fact and
conclusions of law “by number” that were the subject of appellate review, the Employer
did not make a statement of the particular grounds upon
which the appeal is based. The
citation of the finding of fact by number alone, is insufficient and the
appealing party must provide a description of the grounds on which the appeal
is filed.
The
Claimant penalty petition was filed based upon the Employer unilaterally
ceasing payment of certain medical supplies such as heating pads, electrical
stimulation supplies, etc. When the
medical supply company attempted to file a fee review, that request was denied
because the Employer contested the causal relationship of the expenses. The Employer presented a medical opinion of
an IME physician approximately one year after the medical expense denials. That IME opinion found that the claimant had
fully recovered and the medical supplies were not necessary or related to the
accepted injury. Claimant presented the
testimony of his treating physician to relate the expenses to the work injury. The Judge found the Claimant’s physician to
be more credible and found that the Employer violated the Act by the unilateral
cessation of medical expense payments.
The
Commonwealth Court rejected the Employer’s argument that the Termination petition
was filed to address a genuinely-disputed issue. Employer argued the issue of – What is the
“scope” of medical supplies where the supplies were not “medical” in nature,
such as alcohol patches, lotion and the batteries for the electrical stim unit.
The
Court explained that if the Employer unilaterally ceases the payment of medical
expenses, it takes the risk that the WCJ will hold that those bills are
related. In this circumstance, there is
a violation of the Act. Employer cited
the prior cases where there was no penalty assessed - where the Workers’ Compensation Judge did not
find a causal relationship of the denied medical expenses. The Commonwealth Court cited Section 306(f.1)
for the proposition that an employer has a responsibility to pay for reasonable
and necessary medical expenses that are causally related. Once liability is established, the employer
may not unilaterally cease payment.
The Court noted there is a clear line between
the argument of “reasonableness” or argument of “causation” when addressing
liability for medical expense reimbursements.
If the employer questions the causal relationship of the medical
expense, there is no penalty if the WCJ ultimately decides the expense was not
related. Claimant argued on appeal that
the employer changed its argument as they originally alleged that the medical
supplies were not causally related to the accepted work injuries. It was said that they later raised the issues
of the “scope” of what is a “medical” supply and the alleged inflation of
medical costs. These arguments were
unpersuasive to the Court. The assessment of a Penalty was affirmed.
Practice
Pointers:
1.
Regarding WCAB Appeals – carefully draft the appeal document to identify each
finding of fact and each conclusion of law that should be the subject of review
on appeal. Then add the particular legal argument to identify the alleged error
of law. One may broadly draft or specifically state their reasons for assertion
of an error.
2.
Regarding Medical Expense Denials - The Employer and Insurer may contest the
causal relationship of any medical expense. But as noted above – this position
comes with the risk - that the WCJ may disagree and may further assess a
penalty. One may increase their chance for success by having medical evidence to
support their assessment that an expense is not related to the work injury. If
the WCJ does not rule in favor of the Employer position, the existence of
medical evidence may result in the avoidance of a penalty.
3. Regarding Challenge to the Reasonableness of a Medical Expense – the Employer remedy is to
file an application for Utilization Review.
