Best Practices – WCAB Appeals and Medical Expense Denials

 

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.