PA Work Comp Act allows for assessment of 50% penalty for delay in Fatal Claim Award

 

Timely benefit payment is required by the Pennsylvania Workers' Compensation Act. Section 428 of states that an employer violates the Act if it fails to make payments within 30 days of the date on which its obligation to pay arises. 

Section 430(b) of the Act specifically cautions that “any insurer or employer who . . . refuses to make any payment provided for in the WCJ’s decision without filing a petition and being granted a supersedeas shall be subject to a penalty as provided in section 435.

Only a grant of supersedeas relieves an employe/insurer of its obligation to pay an award.

 A recent appellate decision addressed the propriety of a WCJ assessment of a 50 % penalty for delay in payment of a Fatal Claim petition award. 

See: City of Philadelphia v. WCAB (Thompson) 217 C.D. 2020; May 26, 2021; (order for publication September 28, 2021) 

Factual & Procedural Background

A WCJ order granted a Firefighter Cancer Fatal Claim. The WCJ ordered Employer to pay indemnity benefits, funeral expenses, reasonable litigation costs and statutory interest. “Claimant is entitled to weekly benefits at the rate of [50%] of Decedent’s average weekly wage at the time he last worked in 2010 …”.

Employer appealed this award to the WCAB. The Board issued a denial of supersedeas.

Claimant filed a penalty petition as Employer failed to pay benefits following the WCJ’s fatal claim petition award and the Board’s order denying supersedeas.

After the penalty petition hearing, WCJ found Employer admitted that it had not paid Claimant any indemnity benefits. Instead, Employer argued that its failure to comply with the WCJ’s order and the Board’s denial of supersedeas was justified because it was unclear whether Claimant’s benefit rate was 50%, as provided for in the WCJ’s order, or 51% as provided for in the Act. Employer also asserted that it was unable to calculate Decedent’s AWW and the benefit rate.

In the WCJ penalty petition decision (rendered prior to Board remand order) WCJ rejected Employer’s arguments.  WCJ found the initial decision and order was “clear that 50% of Decedent’s AWW calculated at the time he last worked for Employer in 2010 should be paid with a statutory interest.

WCJ further found that irrespective of whether the benefit rate should have been 50% or 51% percent, this is not sufficient grounds for the Employer to blatantly disregard the WCJ order and the WCAB supersedeas denial.

WCJ stated -  while there was no earning documentation submitted in the claim petition litigation, Employer cannot credibly argue an inability to calculate an AWW and compensation rate inasmuch as wage records are within the complete control of  Employer.

Employer cannot credibly argue an inability to ascertain Claimant’s last date of work and/or retirement date as any attendance records for Claimant are within the complete control of the Employer. Any information presented by Claimant would have come directly from attendance records generated by Employer.

WCJ noted -  If a Board order calculates the wages differently than what was paid by Employer, Employer would have a Supersedeas Fund remedy for reimbursement of any overpayment.

WCJ found – the Employer arguments “to be disingenuous” as the initial WCJ order was clear and the information missing was within the control of Employer.

WCJ Penalty petition decision - Employer violated the Act. WCJ imposed a 50% penalty upon Employer for failing to comply with the WCJ order and the Board’s order denying supersedeas.

Note: the Board subsequently remanded the Employer appeal of the Fatal Claim award for the WCJ to reconsider the merits of the fatal claim petition based on intervening case law; the PA Supreme Ct decision in Sladek.

Employer appeal Penalty award to WCAB

Employer argued that Claimant had an affirmative duty to establish Decedent’s AWW and thus Employer did not violate the Act. 

WCAB- rejected Employer’s contention that the WCJ’s decision was unclear as to the date to be used to calculate the AWW and benefits due, as these issues are decided by statutory law “and the benefits due were discernable.”

WCAB - Employer presented no evidence of a good faith payment. Employer violated the Act. WCJ did not abuse her discretion in imposing a penalty.

Employer appeal of penalty petition award to Commonwealth Court

CW CT -  “It is well-settled that where an employer fails to commence payment of compensation in accordance with a WCJ’s order, the failure to make payment constitutes a violation of the Act and the employer is subject to the imposition of penalties”.

CW CT - Section 428 states that an employer violates the Act if it fails to make payments within 30 days of the date on which its obligation to pay arises. Further, section 430(b) of the Act specifically cautions that “any insurer or employer who . . . refuses to make any payment provided for in the WCJ’s decision without filing a petition and being granted a supersedeas shall be subject to a penalty as provided in section 435 … “Indeed, only a grant of supersedeas relieves an employer of an obligation to pay.” 

CW CT reviewed prior decisions assessing 50% penalties. The CW CT concluded - WCJ did not abuse her discretion in imposing a 50% penalty for Employer’s significant delay in tendering payments for indemnity benefits to Claimant after the Board denied supersedeas.

… As both the WCJ and the Board recognized, Employer was (and presumably continues to be) in possession of records that not only pertain to—but also serve as a sufficient basis to verify—Claimant’s actual wages and AWW. Employer does not assert that it did not have access to such information.

Recommendations/ Practice Pointers 

As suggested by the Appeal Board, a best practice is to issue payment of a disputed award. Only submission and grant of a supersedeas request, allows the Employer to withhold benefit payments during the pendency of one's appeal.

Denial of the supersedeas request, requires timely benefit payment. 

As a general rule, the claimant has the burden of proof to establish each element of the claim petition. This would include the first date that benefit are requested, together with submission of documentation of the average weekly wage. 

However, in this instance, the WCJ, WCAB and Commonwealth Court concluded the Employer has access to this information - such that, its explanation of its failure to commence payment, lacked merit. 

 

A WCJ approved Compromise and Release Settlement cannot be negated by a subsequent allegation there was no "meeting of the minds" regarding MSA medical expenses.

Lehigh Specialty Melting, Inc. v. WCAB (Bosco): No. 569 C.D. 2020

Employer’s Petition to Review requested relief and enforcement of the terms of an approved Compromise and Release settlement. Consistent with the terms of a C&R settlement, Employer obtained a Medical Set-Aside (MSA) approved by CMS. Claimant refused to execute the paperwork necessary to secure the MSA (as agreed upon in the C&R) as the MSA did not include expenses for medical marijuana. Lehigh Specialty Melting, Inc. 

WCJ Decision granted Employer's Petition. WCAB Order reversed.    Commonwealth Court reinstated WCJ decision.

September 21, 2021 ordered that the Memorandum Opinion filed on July 13, 2021 shall be designated OPINION and it shall be reported.

The Commonwealth Court ruled that once a C&R has been approved, a claimant cannot ask a workers’ compensation judge to negate it based on the contention that there was no meeting of the minds. After WCJ approval, the only means for a party to negate the C&R is to convince a WCJ that the agreement was entered into as a result of fraud, deception, duress, mutual mistake, or unilateral mistake caused by an opposing party’s fault. As none of these conditions exist in the case sub judice, the WCJ decision was reinstated.

Factual Background 

The parties entered into a Compromise and Release Agreement (C&R), which was approved in a 2014 WCJ decision. An amended 2014 WCJ order specified that Employer was to continue to pay medical expenses associated with Claimant’s work injury until it funded a Workers’ Compensation Medicare Set Aside Arrangement (MSA) approved by the Center for Medicare & Medicaid Services (CMS).

In 2018, Employer filed a Petition to Seek Approval of a C&R, a Petition to Review Medical Treatment and/or Billing and a Petition to Review Compensation Benefits.

The gist the three petitions was that Claimant entered into a C&R wherein he agreed not only to a lump sum settlement but also to the potential establishment and funding of an MSA.  Claimant agreed to timely complete all paperwork necessary for Employer to apply for and secure an MSA or Allocation. Thereafter, when Employer obtained a set-aside approved by CMS, Claimant refused to follow through with executing the paperwork necessary to secure the MSA.

WCJ Decision

The WCJ found Claimant testimony was credible that he knowingly and voluntarily agreed that if Employer obtained approval of an MSA and properly funded it, Claimant’s medical benefits would end.

Summary of the WCJ findings of fact reflect -

Claimant agreed to cooperate with Employer’s efforts to obtain an MSA. Under the C&R, Employer’s only obligation [if it chose to exercise it], was to obtain approval of an MSA and fund the same. There was no provision that Employer needed to pay for anything other than the MSA. Employer’s evidence demonstrated that it submitted an MSA to CMS, the MSA was approved, the paperwork was forwarded to Claimant and Claimant’s refused to sign the paperwork because the MSA did not include all of Claimant’s ongoing work-related medical treatment - including medical marijuana.

Employer resubmitted the MSA proposal to CMS, which again approved it with a “notation that medical marijuana is not covered by Medicare and is thus not considered part of an MSA". WCJ found the Employer’s obligation was solely to obtain an MSA and fund it, “not to obtain an MSA and cover other services not covered by Medicare.”  The evidence clearly shows that Claimant failed to cooperate by signing the documents needed to finalize the MSA. Employer could not obtain final approval of the MSA.

The WCJ noted Claimant’s position -  he wants to be reimbursed for his past usage of medical marijuana and he does not want to agree to the MSA unless there is some provision for the funding of his future use of medical marijuana.

The WCJ concluded that Claimant was attempting to re-write the C&R to include payment for non-Medicare covered services as part of Employer’s obligation. However, Claimant has shown no basis for a re-writing of a contract. The WCJ concluded as a matter of law that (claimant's request) is not part of the legal obligation that the parties contractually agreed to in the C&R.

The WCJ decision stated that, if Employer wished to end its obligation for Claimant’s medical benefit payments, it was to obtain a new MSA structured settlement quote and forward the paperwork to Claimant for signing. 

If Claimant signs the MSA paperwork, Employer and its Insurer are relieved of all future liability of medical expenses related to the work injury.  If Claimant does not sign the MSA paperwork, then Employer may send Claimant a check for the value of the MSA and its obligation to pay for work-related medical expenses shall end.

Claimant Appeal to WCAB

The WCAB agreed with Claimant that the WCJ has no authority to require Claimant to execute the MSA documents. Citing Stroehmann Bakeries v. Workers’ Compensation Appeal Board (Plouse), 768 A.2d 1193 (Pa. Cmwlth. 2001). The Board determined that a C&R is enforceable only where there has been a “meeting of the minds” on all of its terms.

WCAB reasoned - circumstances have changed and medical use of marijuana is now approved in Pennsylvania. Claimant contends that medical marijuana is a reasonable treatment for his work injury. Employer disagrees. Accordingly, there is no meeting of the minds. The C&R provision requiring Claimant execute documents for the approval of the MSA and final settlement of his claim for medical benefits - is not enforceable.

Commonwealth Court Appeal of Employer

The Commonwealth Court analysis began with a review of section 449 regarding approval of a C&R agreement -

The workers’ compensation judge shall not approve any C&R unless he first determines that the claimant understands the full legal significance of the agreement. The agreement must be explicit with regard to the payment, if any, of reasonable, necessary and related medical expenses.

The Court reviewed the C&R terms - Claimant’s wage loss benefits were settled for a lump sum payment;  the C&R did not resolve Claimant’s medical benefits but, instead, provided Employer with the option of funding an MSA or continuing to pay the medical bills related to Claimant’s work injury.

The C&R specifically stated Employer shall continue to remain liable for payment of all reasonable and necessary medical expenses related to Claimant’s work injury through CMS approval of an MSA and Employer’s funding of the same. Claimant agrees to timely complete all paperwork necessary for Employer and its Insurer/Third-Party Administrator to apply for and secure an MSA or Allocation. (emphasis in original).

The Court emphasizeded the C&R was approved by a WCJ, who confirmed via Claimant’s testimony that Claimant understood its terms. Although the medical aspect of Claimant’s workers’ compensation claim was left open at the time, the language clearly demonstrated that the parties agreed that Employer could submit an MSA for CMS approval at a later date. If the MSA was approved by CMS, and Employer chose to fund it, Employer would be absolved of further responsibility for Claimant’s medical bills. As part of this agreement, Claimant agreed to cooperate by preparing all necessary paperwork for Employer to submit the MSA proposal.

Now, Claimant refuses to cooperate as he had promised in the C&R because the MSA and/or Employer will not pay for his use of medical marijuana, which became legal in Pennsylvania approximately two years after the C&R became effective. Claimant relied upon Stroehmann to suggest there is no meeting of the minds and a new C&R was required to relieve Employer of its responsibility for Claimant’s medical expenses.

The Court rejected Claimant’s assertion that Stroehmann requires the C&R to reflect a “meeting of the minds”, noting - nowhere in Stroehmann is the expression “meeting of the minds” used. The focus of Stroehmann was on bringing final resolution to workers’ compensation claims in a way that had not been available to parties in workers’ compensation litigation prior to 1996.

The Court explained that a WCJ’s evaluation of a C&R is primarily focused upon the claimant’s understanding of the terms of the agreement. The fact that the parties have agreed upon a resolution of the claim seems indicative of a meeting of the minds.

Once a C&R has been approved, a claimant cannot ask a workers’ compensation judge to negate it, based on the contention that there was no such meeting of the minds. After approval, the only means for a party to negate the C&R is to convince the workers’ compensation judge that the agreement was entered into as a result of fraud, deception, duress, mutual mistake, or unilateral mistake caused by an opposing party’s fault.     None of these conditions exist in the matter sub judice.

To the extent any of these reasons could even remotely apply to the present case, only mistake might come at all close. Having said as much, we stress that we do not equate a change in law, after the C&R’s approval, with a "mistake" at the time the C&R was negotiated and approved by the WCJ.

At the time the parties entered into their C&R, and it was approved, there was apparent agreement on its terms. The only notable change is that medical marijuana became available in Pennsylvania.

However, given that (1) medical marijuana was neither contemplated nor legal in Pennsylvania when the C&R was approved, (2) Claimant never appealed approval of the C&R, (3) Claimant accepted $155,000 to resolve the indemnity portion of his claim, (4) Claimant agreed to cooperate in Employer’s efforts to secure an MSA, (5) it was up to Employer’s sole discretion whether to fund the MSA, and (6) CMS will not fund medical marijuana, despite changes in State law -  The Court cannot agree with Claimant that a new C&R is required for Employer to exercise its option to resolve the medical portion of Claimant’s workers’ compensation claim.

The Court referenced the Pennsylvania Superior Court’s opinion in Felix v. Giuseppe Kitchens & Baths, Inc., 848 A.2d 943 (Pa. Super. 2004). regarding a trial court’s enforcement of a settlement agreement. The Felix Court stated that “settlement agreements are enforced according to principles of contract law. Courts will enforce a settlement agreement if all its material terms are agreed upon [sic]. A settlement agreement will not be set aside absent a clear showing of fraud, duress or mutual mistake.” Felix, 848 A.2d at 947 The Superior Court added that “it is well settled that a party assumes the risk of his or her own inability to perform contractual duties.” 

The Commonwealth Court reasoned – that in the instant matter - we are not faced with a party’s inability to perform contractually agreed upon duties. We are presented with something more substantial - an unwillingness to perform.

Thus, as per the Superior Court in Felix and in light of the inability of the WCJ to require Claimant to sign the MSA paperwork, we see no error in the WCJ’s decision to enforce the settlement agreement rather than set it aside. The remedy imposed by the WCJ, i.e., requiring Employer to obtain a new quote for the MSA from CMS and giving Claimant two weeks to review and sign the paperwork, followed by the opportunity for Employer to send Claimant a check for the value of the MSA should Claimant choose not to cooperate, is reasonable.

The Court noted - Employer is correct that the Board’s standard would open a Pandora’s box that could potentially unravel countless C&Rs - based on the contention that there was no “meeting of the minds” at the time the agreements were approved. This, in turn, would defeat the true meaning of Stroehmann - which was to underscore the value of bringing permanent resolution to workers’ compensation claims by encouraging settlements and stressing finality.

PRACTICE POINTERS

1. Negotiate and itemize specific settlement terms regarding wage loss medical expense and all other type of payment due at the time of settlement and at any future point. 
2. Draft specific settlement terms regarding the obligations of each party, particularly regarding future medical expense liability. Consider options and alternatives that are available to each party.
3. Present testimony before the WCJ of the claimant's understanding of: specific settlement terms; payments due; future benefit rights; future obligations. 

PA Work Comp total disability benefit status reinstatement, after unconstitutional IRE, is the date of filing of the Petition to Reinstate

In a series of Memorandum Opinions issued throughout 2021, the Pennsylvania Commonwealth Court has consistently held that a Claimant is entitled to reinstatement of  total disability benefit status, as of the filing date of the Claimant Petition to Reinstate, where the change in benefit status was based upon an unconstitutional IRE.

Marcellini v. WCAB (Brighthouse Life Insurance Company and Travelers Indemnity Company) No. 1014 C.D. 2020; Memorandum Opinion filed September 13, 2021

In Marcellini the Commonwealth Court dismissed Claimant arguments that (1) the White decision and its progeny are erroneous regarding the correct date for reinstatement and (2) the claimant has a “vested right” to workers’ compensation benefits.

Procedural Background

Claimant appealed the WCAB decision that reinstated her total disability benefits as of July 18, 2017, the date she filed her petition for reinstatement. (After the 1^st WCJ decision there was a remand to WCJ, to consider the effects of the Whitfield decision and Act 111 enactment. The WCJ decision was unchanged.) The WCAB affirmed the WCJ decision. On appeal, Claimant argued the WCAB erred, as properly she was entitled to reinstatement as of March 19, 2009 - the date her status was modified from total to partial on the basis of an unconstitutional impairment rating evaluation (IRE).

In affirming the WCAB decision, The Commonwealth Court relied upon a recent decision in Whitfield. That opinion held a claimant, who showed that her work-related disability continued, was entitled to reinstatement of her total disability status, as of the date she filed her reinstatement petition.

The Whitfield Court reasoned - Simply because Protz is being applied to a case that arose from a work injury and a change in disability status that predates it does not mean it operates retroactively…. This (Protz) decision does not alter the claimant’s past status. Rather, it gives effect to the claimant’s status as it existed at the time she filed her reinstatement petition. Citing: Whitfield, 188 A.3d at 617.

The Commonwealth Court compared the date of reinstatement ordered in Dana Holding Corporation v. Workers’ Compensation Appeal Board (Smuck) (Pa. Cmwlth. 2018), aff’d, 232 A.3d 629 (Pa. 2020), to that ordered in Whitfield. In Dana Holding, claimant had appealed the modification of compensation based upon an IRE, and that appeal was pending when Protz was decided.

In the Dana Holding situation, the Court held that the claimant was entitled to reinstatement as of the date of the IRE. By contrast, in Whitfield, claimant did not appeal the modification but, rather, filed a reinstatement petition following the Protz decision. Because the claimant in White had not appealed the initial modification, this Court held that she was entitled to reinstatement as of the date of her petition, not the date of the change in her disability status from total to partial. See White, 237 A.3d at 1231 (explaining the different paradigms of Dana Holding and Whitfield).

In the instant case,  Claimant did not challenge the validity of her 2009 IRE until after Protz was decided in 2017. On this basis, the Board properly reinstated her total disability status as of the date she filed her petitions. Citing: White, supra.

Claimant argued she has a vested right in workers’ compensation benefits. She argued she was deprived of a vested right to total disability compensation by an unconstitutional procedure. This requires the 2009 modification of her disability status to be set aside. However, as noted by the Court in Perillo v. Workers’ Compensation Appeal Board (Extended Healthcare Services, Inc.) (Pa. Cmwlth., a claimant does not have a vested right in workers’ compensation benefits and, thus, there is no entitlement to reinstatement of total disability benefits effective as of the date of the prior invalid IRE.

The Court explained that the Pennsylvania Supreme Court has limited the scope of the protection to vested rights: “It must be something more than a mere expectation, based on an anticipated continuance of existing law. It must have become a title, legal or equitable, to the present or future enforcement of a demand, or a legal exemption from a demand made by another.” Perillo, slip op. at 5, n.10.

Because workers’ compensation benefits can be changed at any time, “there are no vested rights in workers’ compensation benefits.” Perillo, slip op. at 4. In the instant case, the Court reject Claimant’s premise that she had a vested right to total disability compensation.

PRACTICE POINTERS

1. Continue to pursue the Impairment Rating Evaluation (IRE) as a remedy to limit the duration of total disability benefit payment. After the injured worker receives 104 weeks of total disability benefits, file an IRE request for designation of an expert to conduct an evaluation.

2. As the IRE physician is limited to address only issues of MMI status and the degree of impairment – if you wish to contest the extent or duration of work-related disability – an Independent Medical Examination (IME) is the remedy to pursue.

 

PA Bureau of Work Comp Fee Review Hearing Office may determine – who is a “medical provider” with standing to pursue a fee review remedy.

Fee Review provides a forum to medical providers to contest the amount or timeliness of the payments received from an employer or insurer. In 2019, The Commonwealth Court issued a decision, allowing jurisdiction to the Hearing Office to address the issue of whether an entity was a provider. The definition of “who is a provider” continues to be disputed.

See: Harburg Medical Sales Co. v. PMA Management Corp. (Bureau of Workers’ Compensation, Fee Review Hearing Office), No. 635 C.D. 2020; August 30, 2021

Harburg Medical Sales Co., appealed two adjudications of the Bureau of Workers’ Compensation, Fee Review Hearing Office, that denied Harburg’s requests for de novo hearings to contest the Bureau’s administrative denial of fee review applications on the ground that Harburg was not a provider within the meaning of Section 109 of the Workers’ Compensation Act and, therefore, lacked standing to invoke the fee review process.

Factual Background

A worker sustained an injury in the course of his employment . After he developed chronic pain, his doctor sent orders for certain pain treatment modalities to Harburg. Upon receiving the orders, Harburg communicated with various distributors (never identified, except—at one point—as Amazon, in these proceedings), advanced payment for the items, and directed them to be delivered to Maximo’s residence via UPS or FedEx. Thereafter, Harburg billed PMA Management Corporation.

Following a dispute between Harburg and PMA as to the amount properly payable for the items, Harburg filed fee review applications with the Bureau.

Upon the Bureau’s denial of the applications, Harburg sought further review by requesting de novo hearings.  PMA moved to dismiss the applications on the grounds that Harburg was not a provider and that the Hearing Office lacked jurisdiction to address the issue of whether an entity was a provider. The Hearing Office denied the motion to dismiss based on the then-controlling case law. The Hearing Office relied on Selective Insurance Co. of America v. Bureau of Workers’ Compensation Fee Review Hearing Office (The Physical Therapy Institute), 86 A.3d 300 (Pa. Cmwlth. 2014), which the Commonwealth Court subsequently overruled.

Subsequently, the Commonwealth Court issued two decisions impacting the instant case. In Armour Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (Wegman’s Food Markets, Inc.), 206 A.3d 660, 671 (Pa. Cmwlth. 2019) (en banc) (Armour I),  the Court held that the Hearing Office had jurisdiction to determine whether a supplier was a provider.

Thereafter,  the Commonwealth Court directed the Hearing Office in a related series of cases to adjudicate the threshold issue of whether Harburg was a provider. See: PMA Mgmt. Corp. v. Bureau of Workers’ Comp. Fee Rev. Hearing Off. (Harburg Med. Sales, Co., Inc.) (Pa. Cmwlth., No. 1757 C.D. 2017, filed Apr. 12, 2019).  Pursuant to that directive, Hearing Officer David Torrey conducted a hearing and concluded that Harburg was not a provider. Harburg filed this appeal.

Decision and Reasoning of the Court

In determining that Harburg does not meet the definition of provider, the Commonwealth Court noted that Harburg is neither licensed nor authorized by the Commonwealth to provide health care services.

Additionally, there are no government agencies specifically authorizing Harburg to distribute medical supplies, no state or federal quality standards for suppliers of such items, and no continuing education requirements for operating a medical supply company. Review of the facts do not warrant a legal determination that Harburg is an agent of a licensed health care provider.

The Court rejected Harburg’s argument that the Hearing Officer’s decision violated Harburg’s due process rights by depriving it of a forum to contest the amount or timeliness of the payments received from the employer or the insurer.

Even though Harburg may have rendered convenient services or assisted injured workers to obtain equipment or supplies that were part of his or her treatment plan, the pertinent legislation does not dictate that any person or entity which does so be afforded an opportunity to invoke the fee review process.

Pursuant to the clear language of Section 306(f.1)(5) of the Act, only providers have standing to do so. If the General Assembly wishes to expand the definition of provider in legislation pertaining to medical cost containment and the fee review process, then it needs to enact appropriate laws.

The Court concluded that Harburg was not deprived of its due process rights. In Armour I, the Commonwealth Court held that “it offended due process . . . as well as the Act’s careful scheme for resolving fee disputes to place the question of whether a putative provider is actually a ‘provider’ beyond the reach of judicial review.” Armour I, 206 A.3d 670. The Court determined that the Hearing Office has jurisdiction to determine whether a supplier is a provider.

In the instant case, Harburg was given a full hearing on this issue and afforded due process; it simply did not agree with either the result or the consequences necessarily following therefrom—its inability to invoke the fee review process. Determining the legal status of Harburg ends our inquiry. As Hearing Officer Torrey concluded: “It may well be that some medical supply houses are, somehow, providers under the Act, and have standing to file Requests in this forum. However, on the evidence presented in this case, Harburg is not one of them.”

PRACTICE POINTERS:

Carefully review medical billing statements. Is the statement from the medical provider or from another entity? If not a provider, the employer/insurer may seek dismissal of the review request.

2.      Fee Review provides a forum to medical providers to contest the amount or timeliness of the payments received from an employer or insurer.

3.      Utilization Review provides a forum to employers, insurers and claimants to request prospective, concurrent or retrospective review of the reasonableness or necessity of medical treatment expense.

4.      The Employer and Insurer have additional remedies to contest medical expenses. A Petition to Review may challenge the causal relationship of a medical expense and the work injury. A medical expense may be denied outright – but a WCJ may ultimately determine the denial was unreasonable and assess counsel fees.

5.      When reviewing medical expenses, consider your options. What is the focus of your dispute ? Is it the expense amount, the frequency of care or type of care? Discuss your remedies with your work comp counsel.