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.

Indicia of the Independent Contractor versus Employer – Employee Relationship

 

Indicia of the Independent Contractor versus Employer – Employee Relationship

The Pennsylvania Workers’ Compensation Act does not have a “hard and fast rule” that governs the distinction between an employer-employee relationship and an owner-independent contractor relationship. 

Past cases were decided on a case-by-case basis. Specific facts may alter the outcome of the assessment of a purported employer-employee relationship.

The Construction Workplace Misclassification Act (43 P.S. 933.3 effective 02/10/2011) was a significant step to advancing certainty in the assessment of the presence/absence of an independent contractor in the construction industry. An individual who performs services for renumeration in the construction industry is an independent contractor only if all three of the following criteria are satisfied:

1. The individual has a written contract to perform such services;
2. The individual is free from control or direction over performance of such services both under contract of service and in fact;
3. As to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.

A recent memorandum appellate decision addressed the presence/absence of an independent contractor relationship in the soon-to-be archaic - newspaper delivery boy position. The court gave review of the independent contractor status in Pennsylvania Workers’ Compensation Law and the indicia necessary to establish an employer-employee relationship.

See: the Commonwealth Court Decision at Shannon v. WCAB (Ogden Newspapers of Pennsylvania), No. 46 C.D. 2020, Memorandum Opinion filed August 25, 2020.  

An application for allowance of appeal was recently denied by the Supreme Court of Pennsylvania at 292 WAL 2020 on April 1, 2021. 

The facts are not remarkable.  Claimant was engaged in delivery work for the Altoona Mirror, a newspaper owned by Ogden Newspapers. (Ogden hereinafter). He was injured in a customer’s icy driveway.  (NOTE: The case was bifurcated for the issue of employee status; therefore, the Appeal Board and Commonwealth Court did not evaluate the medical evidence presented).

The ”modern” newspaper delivery person is unlike quintessential figure of a teen riding a bicycle with a canvas carrying bag - Claimant worked for Ogden for approximately nine years.  On an average day, he would receive 500-600 newspapers at his home between 2:00 a.m. and 3:00 a.m.  He traveled approximately 70 miles per day to deliver these papers.  Ogden imposed a 6:00 a.m. deadline for delivery to all customers in homes, stores, and newspaper vending machines.  Claimant did not select his own delivery route but was instead instructed by Ogden.

Ogden imposed several requirements in addition to delivery time and manner.  At times, claimant was required to deliver newspapers to non-customers, in hope they would become customers.  Claimant was also provided with advertising inserts he was required to place within the newspapers.  At times claimant was required to use holiday-themed advertising bags as delivery packaging.  Claimant did not have control or discretion over these requirements.  He did not collect money from customers or select customers to be included on his route.  If customers had complaints or concerns, claimant did not handle,  it was directed to Ogden. 

One customer complained her newspaper was being thrown in her driveway and it should be delivered on her front porch.  As a result, claimant was required to get out of his car and walk on the customer’s driveway to deliver the newspaper.  On December 17, 2017, claimant left his vehicle, walked on the customer’s driveway to deliver her newspaper to her front porch as requested.  While walking on the driveway he slipped and fell, fracturing his ankle.  He was hospitalized for 11 days. 

Claimant previously signed an independent contractor agreement.  This document stated claimant was “an independently established business enterprise”, and that as an independent contractor, he understood that he was not entitled to employee benefits from Ogden, including workers’ compensation benefits.

The claim petition was denied by the Workers’ Compensation Judge and the Appeal Board affirmed that denial.  On appeal to the Commonwealth Court, claimant argued his case is distinguishable from prior case law based upon the evolution and change in the newspaper delivery boy position.

The Commonwealth Court denied the claim petition based upon an analysis and assessment of the employment relationship.  As often stated – the existence of the employer-employee relationship is a question of law based upon the Workers’ Compensation Judge findings of fact.  Claimant had the burden to establish an employment relationship existed at the time of the injury and the injury was related to the employment.  As often stated - the findings of a Workers’ Compensation Judge can only be disturbed if there is no competent evidence to support those findings.  Citing:  Universal Cyclops Steel Corporation, 305 A.2d 757 (Pa. Cmwlth. 1973).

The Court noted that Pennsylvania does not have a “hard and fast rule” that governs the distinction between an employer-employee relationship and an owner-independent contractor relationship.  Citing Hammermill Paper Company v. Rust (Pa. 1968). 

Factors to be considered in the establishment of an employment relationship include:

1. control of the manner of work to be done;
2. responsibility for result only;
3. terms of agreement between the parties;
4. the nature of the work or occupation;
5. skills required for performance;
6. whether one is engaged in a distinct occupation or business;
7. which party supplied the tools;
8. whether payment is by the time or by the job;
9. whether work is part of the regular business of the employer;
10. also the right to terminate the employment at any time.

While each factor is relevant, certain guidelines have been elevated to be dominant considerations, such as control over the work to be completed and the manner in which it is to be performed are primary factors in determining employee status.  Citing JFC Temps Incorporated (Pa. 1996).  Claimant argued Ogden controlled the manners and methods by which he was required to deliver newspapers: they set a delivery time deadline, a delivery route, and the means of delivery (although not explicitly stated, his motor vehicle).

The Workers’ Compensation Judge identified 11 factors that suggested that claimant entered into an independent contractor relationship with Ogden.  This was based upon testimony of Ogden’s District Manager.  He stated he would often not see claimant for months.  The WCJ considered this was an indication there is not a degree of supervision that one normally sees in an employment relationship and is more akin to the standard independent contractor relationship.  Also while claimant was shown the quickest delivery route by Ogden, he was free to use his own route.  He was required to supply his own vehicle for use in deliveries but he was not reimbursed for mileage or use.  The WCJ noted that employees are generally reimbursed for use of their privately-owned vehicles for activities in the furtherance of the business affairs of their employers.

The controlling case in this area is Johnson v. Workers’ Compensation Appeal Board (Dubois Courier Express).  In Johnson, the Commonwealth Court held a 13-year-old newspaper carrier was an independent contractor because the newspaper did not exercise substantial control over his activities.  As in the present case - the 13-year-old was only told to deliver papers by a specific time, he was never directed otherwise as to the time or mode of delivery or the route traveled.  Following drop-off of the newspapers, the company had no further investigation or supervision regarding delivery of the papers.  That carrier was also eligible to deliver competing newspapers and was permitted to substitute a person to deliver his papers without giving the newspaper company notice or receiving prior approval. 

In the instant case, Claimant also had the opportunities for “unrestricted substitutions” and additional delivery routes for competing publications.  Claimant asked the Court to consider the erosion of the newspaper boy independence that has occurred since the Johnson case; however, the Court thought this consideration was beyond its scope of review. 

Claimant attempted to distinguish the prior case law by noting that they involved newspaper distributors who purchased the newspapers from the publishing company and after making sales to customers, kept the profits.  These newspaper distributors were considered to be independent contractors.  Claimant attempted to draw a distinction which was not convincing.  Citing: Balinski (Pa. Superior 1935) and Rodgers (Pa. Super. 1960). 

Claimant attempted to distinguish a more recent case, Gallagher (Pa. Cmwlth. 2015).  The Court did not accept this argument.  Claimant was similar to the carrier in Gallagher in that he was able to enlist a substitute without prior notice or permission and there is no prohibition on delivering competing newspapers.  However, this supports the conclusion that the individual company did not control claimant’s work or the manner of his performance, only the results.  On this basis, claimant’s position was not distinguishable from the prior caselaw reflecting the understanding of a newspaper delivery person to be an independent contractor.  The company’s lack of control over claimant’s newspaper delivery constituted an independent contractor relationship. 

Although the newspaper delivery position had been historically somewhat unique, the analysis of the employer-employee relationship employed by the Court for workers’ compensation purposes was not.  The Court has employed the “control test” as a determining factor in the assessment of the existence of employment relationship or an independent contractor relationship. 

It is noteworthy that one of the early decisions of the then-newly constituted Commonwealth Court addressed the employee-employer relationship question.  See:  J. Miller Company v. Mixter, 277 A.2d 867 (Pa. Cmwlth. 1971).  It is safe to say that this may be one of the few legal principles that has remained untouched by the Commonwealth Court since 1971. 

“Control in an employment relationship exists where the alleged employer possesses the right to select the employee, the right and power to discharge the employee, the power to direct the manner of performance and the power to control an employee.  See:  American RD Lines v. WCAB (Royal), (Pa. Cmwlth 2012). 

Recommendation

Although each case may present a unique set of facts, the assessment of the presence or absence of an employer-employee relationship will be made based upon a review of the facts presented and application of these legal principles. 

When addressing the question of the presence or absence of an employment relationship, obtain as many factual  details as available regarding the relationship of the parties, the “control” exercised by the purported employer and the “freedom” of the purported employee to conduct his/her affairs.

A Changing Work Injury description may defeat an attempt to Terminate Benefits.

 A Changing Work Injury description may defeat an attempt to Terminate Benefits.

A recent Commonwealth Court Memorandum decision highlights the difficulty of addressing  a Changing Injury Description during Termination Petition Litigation.

A Petition to Terminate benefits will be denied where the Employer medical evidence does not address the full extent of the work-related injury.

When a Petition to Terminate is filed, we sometimes observe a Petition to Review is filed in response – to  correct/amend/expand the description of the work related injury.

In the instant case, the Employer medical expert addressed the issue of the extent of the work related injury. However the WCJ did not find the employer medical evidence to be credible.

In City of Allentown, a Commonwealth Court decision affirmed a WCJ denial of an Employer’s Petition to Terminate benefits, as the Employer failed to prove that Claimant was fully recovered from the work-related injury. The description of the injury was amended/enlarged by the Workers Compensation Judge decision in the Termination petition litigation.

See: City of Allentown v. WCAB (Bryant, Jr.) No. 593 C.D. 2020, (March 11, 2021) a memorandum opinion authored by President Judge Leavitt.

SYNOPSIS OF DECISION

The Commonwealth Court affirmed the decision of the WCJ that Claimant’s work-related injuries exceeded what had been listed on the Notice of Compensation Payable (NCP). For this reason, the Employer failed to prove that Claimant was fully recovered from the work-related injuries, as described in the WCJ in his corrected injury description.  

The Employer medical expert addressed the question of any work-relation of the cervical disc herniations. He stated the neck pain and right shoulder pain were work related but had resolved. He believed the cervical disc displacement was not work related - but expressed the opinion- that he did not know the origin of that condition. This opinion of causation was not assigned credibility by the WCJ.

On appeal, the Employer multiple arguments were not persuasive -

(1)    Expansion of the work injury description to include cervical disc herniations violated Employer’s due process rights and,

(2)    also violated the three-year statute of limitations in Section 413;

(3)    WCJ erred in overruling Employer’s objection to the claimant medical evidence, which was the basis for revising the injury description;

(4)    It was an error to deny the termination petition as Employer proved Claimant had fully recovered from the “accepted” work injury;

(5)    Claimant’s medical testimony was equivocal

(6)    WCJ finding that Claimant was not fully recovered was not supported by substantial evidence.

Detailed Review of Commonwealth Court Decision

Background Facts

In City of Allentown, Claimant was injured on December 9, 2013 in the course of his duties as a firefighter. He felt right scapula pain while lifting a patient.  Employer issued a Medical-Only NCP describing this work injury as “upper back strain”.  Employer issued an amended NCP, describing the work injury as “acute strain to the thoracic spine”. Claimant was paid benefits until his return to work on July 3, 2014.  

A Petition to Terminate benefits was filed by Employer on August 22, 2018, asserting Claimant had fully recovered.  At the initial hearing, the WCJ and attorneys discussed the proper description of the work-related injury. The Commonwealth Court opinion recited this discussion, as it was relevant to their rejection of Employer’s arguments:

WCJ noted the first NCP, medical-only, described an “upper back” injury. In their discussions (off the record) he was advised the area of the body under discussion is “cervical” with possible symptomatology going into the “thoracic region”. 

WCJ: “So the upper back seems to be a fairly good way to describe it.  However, everyone is in agreement that we are also talking (about) the neck.  So we’re not being that specific about thoracic levels or cervical levels, we’re talking about neck and upper back area – does that fairly accurately summarize the discussions we had off the record about the body part(s) and the injury we’re talking about?  Employer’s counsel: Yes, Judge, it does. 

 

Employer Medical Evidence for Termination

Employer’s medical evidence was the independent medical evaluation (IME) report of Dr. Don Ko of December 28, 2017. Claimant was working full time, with continued right shoulder pain.  He reported good results with cervical epidural steroid injections.

Dr. Ko testified Claimant’s physical examination was unremarkable except for trigger point tenderness in the right paraspinal cervical muscles and right upper trapezius muscle; which he attributed to a “sprain/strain type of injury”. The cervical spine MRI of January 11, 2016 showed a disc protrusion at the C6-C7 level.

Dr. Ko opined Claimant suffered from neck pain attributed to the cervical strain and right shoulder pain attributed to the thoracic strain and right cervical disc displacement at the C6-C7 level.  The neck pain and right shoulder pain were work related but had resolved - - as a soft tissue injury would not last beyond six months. 

The cervical disc displacement was not work related.  Claimant’s right shoulder pain was not attributed to the right cervical disc herniation at C6-C7 - as herniation at that level would cause radiating pain in the arm and hand, not into his shoulder region.

On cross-examination, Dr. Ko agreed 2015 and 2016 cervical MRIs both showed a right-side disc protrusion at the C5-C6 level.  There were no medical records of any pre-existing condition or any other injury.  The Commonwealth Court opinion footnote recited testimony of Dr. Ko that he “did not know” the cause of trigger point tenderness noted at IME. 

 

Claimant Testimony & Medical Evidence

Claimant testified and described his medical treatment since the 2013 injury.  In 2016, as he continued to experience right scapular pain with radiation into his neck, he was referred to Dr. Wertz for cervical injections which reduced symptoms for three-four months.  

Claimant’s medical witness, Dr. Wertz, commenced treatment in February 2016 as Claimant complained of pain at the neck and right shoulder blade. Cervical MRI 2016 revealed two small disc herniations at C5-C6 and C6-C7.  Dr. Wertz believed these herniations caused Claimant’s pain and treated him with cervical epidural injections. Cervical MRI 2018 also showed disc herniations at the C5-C6 and C6-C7 levels.  These cervical herniated discs caused axial pain. Claimant’s complaints were consistent and matched the MRI results. He opined the disc herniations were caused by Claimant’s work injury from which he has not fully recovered.

Employer objected to Dr. Wertz’s testimony as he attributed Claimant’s right shoulder pain to the cervical disc herniations, which were not accepted in the NCP.  Employer asserted that Claimant was barred by a three-year statute of limitations in Section 413 from amending the description of injury to include the cervical disc herniations.

WCJ Decision

WCJ denied Employer’s termination petition based upon Claimant’s credible testimony that he continues to experience pain in the neck and scapular area which is relieved by cervical epidural injections.  The WCJ credited the testimony of Dr. Wertz over Dr. Ko.

WCJ found Claimant’s cervical disc herniations were work related based on Dr. Wertz’s testimony.  Conflicting testimony of Dr. Ko was rejected.  

WCJ found the work injury description in the NCP to be “materially incorrect” and amended it to include “annular tears/disc herniations at C5-C6 and C6-C7, from which claimant had not fully recovered”.  The WCJ stated this amendment more accurately described the “upper back strain” that Employer accepted in its medical-only NCP. 

WCJ rejected Employer’s statute of limitations argument on the basis that Section 413 authorizes an amendment of an incorrect NCP at any time.  WCJ overruled Employer’s objection to the testimony of Dr. Wertz.

Employer WCAB Appeal

WCAB held the WCJ did not violate Section 413 or Employer’s due process rights by amending the NCP.  Employer had notice the injury description was an issue. The WCAB concluded the WCJ acted within his discretion to credit Dr. Wertz’s testimony to find Claimant had not fully recovered from his work-related cervical disc herniations. 

Employer Commonwealth Court Appeal

Employer alleged several errors of law: (1) WCJ expansion of the work injury description to include cervical disc herniations violated Employer’s due process rights and (2) also violated the three-year statute of limitations in Section 413; (3) WCJ erred in overruling Employer’s objection to the testimony of Dr. Wertz, which was the basis for revising the accepted work injury described in the NCP; (4) Employer argued WCJ and WCAB erred in denying the termination petition as Employer proved Claimant had fully recovered from the accepted work injury; (5) Dr. Wertz’s testimony was equivocal regarding Claimant’s herniated cervical disc condition; (6) WCJ finding that Claimant was not fully recovered was not supported by substantial evidence.

Commonwealth Court Analysis

Review/Amendment of Injury Description

The Commonwealth Court began its analysis with a review of Section 413 which states, in part:

“… a Workers’ Compensation Judge may, at any time, review and modify or set aside a Notice of Compensation Payable  … in course of the proceedings under any petition pending before such WCJ, if it is proved that such Notice of Compensation Payable or Agreement was in any material respect incorrect.  

“… no Notice of Compensation Payable agreement or award shall be reviewed or modified or reinstated unless a petition is filed with the Department within three years after the date of the most recent payment of compensation made prior to the filing of such petition.”

The Court explained in its analysis, that an NCP may not be modified unless a petition is filed within three years of the most recent payment of compensation, but it may be “corrected at any time”. 

Previously, the Pennsylvania Supreme Court interpreted the first paragraph of Section 413 to mean that “corrective amendments” to an accepted work injury do not require a review petition.  Rather, the WCJ can order a correction where the evidence supports it.  See: Cinram Manufacturing Inc. v. WCAB (Hill), (Pa. 2009).

Due process requires that an employer be given a reasonable opportunity to contest a corrective amendment: “… moreover, the procedures applied by a Workers’ Compensation Judge must obviously comport with due process norms … and therefore reasonable prior notice and an opportunity to respond must be provided to the employer, prior to the implementation of a corrective amendment ….”. Cinram, supra.

In Cinram Manufacturing, the NCP described the work injury as a lumbar strain/sprain.  In the termination proceeding, claimant’s medical expert testified work injury was an aggravation of a pre-existing disc condition that caused nerve impingement.  The WCJ accepted that evidence  and amended the NCP to include nerve impingement. The termination was denied. The Supreme Court affirmed the WCJ’s corrective amendment as the medical experts addressed nerve impingement in their testimony.  Further, the employer did not specify what other evidence it would have presented had it been given express notice that claimant sought a corrective amendment.

The Court cited another similar result. In Walter, a WCJ amended a NCP in a termination petition proceeding to include left suprascapular neuropathy.  The WCAB reversed the WCJ as the employer did not have notice that the injury description was at issue.  The Commonwealth Court reversed and concluded the employer had adequate notice of the corrective amendment as it was announced at the first hearing and medical experts of both parties testified about the claimant’s chronic suprascapular neuropathy.  The Court concluded the employer had a fair opportunity to contest the corrective amendment, as it was unclear what additional evidence the employer could have presented.

In the instant case - the City of Allentown issued both the medical-only NCP and the NCP which described the work injury as an acute strain of the upper back and thoracic spine.  However, Claimant was treating for cervical pain and Employer paid for cervical epidural injections.  At the first hearing, the WCJ and parties agreed they were dealing with Claimant’s neck and upper back area.  Also, Employer’s medical expert testified Claimant’s work injury involved a neck strain, but he opined the herniated cervical discs were not work related. Employer cross-examined Claimant’s medical witness on whether the work injury included cervical disc herniations.  Again – it is unclear what other evidence Employer would have presented had it been given notice of a corrective amendment.  For these reasons, the Commonwealth Court concluded the employer had a fair opportunity to contest the corrective amendment to claimant’s NCP in this case.

Three-Year Statute of Limitations Argument

The Commonwealth Court rejected the Employer’s argument that the three-year statute of limitations in Section 413 requires a different result.  Citing: Fitzgibbons v. WCAB (City of Philadelphia) (Pa.Cmwlth. 2010).

The Court explained the first paragraph of Section 413 applies when a party is seeking to correct an NCP. The second paragraph applies when a party is seeking to expand the description of the work injury to include consequential injuries, i.e., injuries that occurred as a result of the work injury after issuance of the NCP.  

In either case, a petition must be filed within three years of the most recent payment of compensation.  In the instant case, the WCJ decision corrected the NCP injury description based upon evidence presented in litigation of the termination petition.  The Court noted the WCJ is allowed to do so “at any time … in the course of the proceedings under any petition pending … if it is proved that such Notice of Compensation Payable … was in any material respect incorrect”.  Citing Section 413; 77 P.S. § 771.

The WCJ corrective amendment of the NCP - to include cervical disc herniations - did not violate Section 413 of the Act or the Employer’s due process rights.  The WCJ appropriately allowed Dr. Wertz’s testimony that the work injury involved more than an acute strain of the upper back and cervical spine.

Substantial Evidence Argument

The Court rejected Employer’s argument that substantial evidence does not support the WCJ finding that cervical disc herniations were part of the 2013 work injury.  Employer argued the termination petition should have been granted as Dr. Ko testified that cervical disc herniations would cause radiating pain, which Claimant did not have.  Dr. Ko testified that claimant had fully recovered from injury listed on NCP. 

However, Dr. Ko did not contest the MRI findings of cervical disc herniations.  Claimant argued Dr. Ko’s testimony - that claimant had fully recovered from the work injury is not supported by his IME results.  There was no evidence of a pre-existing condition or an intervening event. The Court concluded the WCJ did not err in crediting Dr. Wertz’s testimony. 

Dr. Wertz testified that complaints of pain correlated with the MRI findings and have been consistent since 2016. Cervical disc herniations were caused by the 2013 work injury as there was no evidence of any other trauma. The WCJ credited the testimony of Dr. Wertz over Dr. Ko and that is the prerogative of the finder of fact.  The WCJ determines the credibility of witnesses and the weight to be accorded evidence. Citing: Casne v. WCAB (Stat Couriers Inc.), (Pa.Cmwlth. 2008).

The Commonwealth Court repeated the often-cited principle that a substantial evidence analysis - is not whether there is evidence in the record which supports a finding contrary to that made by the WCJ - but rather, whether there is any evidence which supports the WCJ’s factual finding.  Citing: Hoffmaster v. WCAB (Sunoco Products Inc.), (Pa.Cmwlth 1998). 

An Appellate Court must view the evidence in the light most favorable to the party that prevailed before the WCJ. The Court concluded there was substantial evidence to support the WCJ finding Claimant had not fully recovered from the 2013 work injury which included cervical disc herniations. 

The Court concluded the WCJ was empowered under Section 413 of the Act to amend the description of claimant’s work injury - where the evidence proved that the NCP was materially incorrect.  Employer had a fair opportunity to contest the corrective amendment.

Substantial evidence supported the WCJ’s findings that Claimant sustained cervical disc herniations in the 2013 work injury and had not fully recovered from those injuries.  As such, the WCJ did not err in amending the NCP to include cervical disc herniations.

Best Practices Recommendations:

1. Before the scheduling of an IME appointment – confirm the description of work-related injury to be addressed by your medical expert -

a.       Was the injury description is amended by subsequent Agreement?

b.      … by Subsequent WCJ decision?

c.       … or by subsequent actions – paying for the medical treatment?

2. Obtain all medical records of treatment to assess the presence/absence of any other condition or event that could cause the symptoms under review.
3. Identify to the IME expert – any disputed issues regarding causal relationship of any medical conditions to be addressed in the IME report.
4. Consider a pre-IME medical records review to address any medical causation issues.

The City of Allentown decision highlights the unpredictable nature of litigation. The Employer presented medical expert evidence which addressed the causation issues … but the WCJ did not find that evidence to be credible.

 

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. 

 

 

2021 Pennsylvania Workers' Compensation AWW, Max TTD indemnity rate and Medical Expense percentage increase.

NOTE: This information will be published in the December 26, 2020 Pennsylvania Bulletin:

For injuries occurring on or after January 1, 2021, the statewide Average Weekly Wage (AWW) will be $1,130 .00.  This is an increase from the 2020 rate of $1,081.00.

For medical treatment rendered on or after January 1, 2021, the increase in fee schedule-tied payments will be 4.6%, up from 3.1%.

The 2021 Statewide Average Weekly Wage Workers’ Compensation Rate Schedule has been approved by the Secretary of Labor and Industry and it will be published in the PA Bulletin on December 26, 2020. We offer advance notice of the schedule at this time so that our stakeholders may initiate any updates to their operating systems that rely on this calculation. A comparison with last year’s table is included for reference. The following notice has been prepared for our Press Office to update the L&I website when the wage and rate schedule has been published in the PA Bulletin:

Pursuant to the Workers’ Compensation Act, Section 105.1, the Department of Labor & Industry has determined the statewide average weekly wage for injuries occurring on and after January 1, 2021, shall be $1,130.00 per week. For purposes of calculating the update to payments for medical treatment rendered on and after January 1, 2021, the percentage increase in the statewide average weekly wage is 4.6 percent.

The maximum weekly rate as of  January 1, 2021 will be  $1,130.00.

Continuing Challenges to the Employer Right to an Impairment Rating Evaluation of an Injured Employee

 The Impairment Rating Evaluation remedy in the Pennsylvania Workers Compensation Act

In 1996, Pennsylvania Employers and Insurers were provided a remedy to limit the duration of total disability benefits via an Impairment Rating Evaluation (IRE). This 1996 Amendment to the Pennsylvania Workers Compensation Act was declared to be an unconstitutional delegation of legislative authority by the 2017 PA Supreme Court decision at Protz.

The PA General Assembly enacted Act 111 on October 24, 2018 , to replace the unconstitutional provisions with nearly identical language at section 306(a.3), which was effective immediately. A significant difference was that an IRE must be conducted utilizing a specific edition of the AMA Guides, the 6th edition, second printing April 2009. (Eliminating the flawed "most recent edition" language)

However ... challenges to the "new" IRE provisions continue ... including a challenge to the constitutionality of the new language.

These legal challenges often result in claimant legal counsel advising the Employer/Insurer that their client will not attend a scheduled IRE appointment. Their response results in the filing of an Employer petition to Compel an Expert Evaluation. When assigned to a Workers' Compensation Judge, at the time of hearing, an injured worker is often ordered to attend an IRE appointment. Most frequently this is accomplished via a final order.

In an unpublished Memorandum opinion, the Commonwealth Court addressed a Workers’ Compensation Judge’s Order to Compel an injured worker to attend an Impairment Rating Evaluation, in Cantonese v. WCAB (RTA Services Company Inc.), 1739 C.D. 2019, Memorandum Opinion by Judge Covey filed June 12, 2020. 

The basis facts are not disputed. Employee was injured on December 11, 2013 in a work-related injury.  He received workers’ compensation benefits pursuant to a Notice of Compensation Payable. On January 31, 2019, Employer filed a petition seeking to compel claimant’s attendance at an impairment rating evaluation (IRE).  Employer alleged that employee failed to attended an IRE that was scheduled for January 28, 2019. 

The Workers’ Compensation Judge granted the Employer petition on May 3, 2019.  Employee appealed that decision to the WCAB, arguing that the Workers’ Compensation Judge erred by ordering him to appear at an IRE because Act 111 of 2008 was unconstitutional.  On November 5, 2019, the WCAB quashed employee’s appeal as interlocutory.  Employee appealed to the Commonwealth Court. 

In the decision to affirm the WCAB, the Commonwealth Court cited the well-established principle that “where an order does not dispose of all claims or all parties, it is interlocutory and not appealable to this court”.  Citing: Swartz v. WCAB (Cheltenham York Road), 869 A.2d 35 (Pa.Cmwlth. 2005).

“Furthermore, this court has held that an order directing a claimant to submit to a medical examination is interlocutory.”  Groller v. WCAB (Alstrom Energy Sys.), 873 A.2d 787 (Pa.Cmwlth. 2005). 

In Groller, the Court explained:“Because the IRE order merely stated that the claimant was required to participate in the IRE and neither affected the claimant’s benefits nor affected the employer’s obligation to pay benefits, the IRE order was a non-appealable, interlocutory order.  Because the IRE order is interlocutory, it is not a final order …. “ 

In the instant case, as the order on review before the WCAB was the Workers’ Compensation Judge’s order directing employee to appear for an IRE, the WCAB correctly concluded that employee’s appeal was interlocutory and it properly quashed employee’s appeal.  For these reasons, the Commonwealth Court affirmed the decision. 

This is not a new, ground-breaking ruling. Rather this result follows the similar reasoning in Watson v WCAB (Hillsberg) April 15, 2020. However, these decisions are offered as a reflection of the trend in rulings by WCJ's, the WCAB and Commonwealth Court.