We have lamented the severe and draconian limits on the ability to challenge Utilization Reviews (URs) on this blog before.  We have seen a case where a healthcare provider sent a treatment summary and talked with the reviewer, and a case where records were actually submitted by the provider, but then returned by the reviewer due to a missing verification, both of which were deemed unreachable by appeal (finding that the Workers Compensation Judge (WCJ) lacked jurisdiction due to the failure to supply records).

Considering that UR is the process to limit medical treatment to an injured worker, and that the Supreme Court of Pennsylvania just told us, in Parker v. Workers’ Compensation Appeal Board (County of Allegheny), “we observe that the Workers’ Compensation Act is to be liberally construed in favor of workers in order to effectuate its remedial purpose,” these cases are hard to rationalize.  And, with this latest contribution from the Commonwealth Court of Pennsylvania, even more disappointing.

As noted above, the case law, and regulations, have told us that when a healthcare provider fails to provide records, no report is to be prepared by the Utilization Reviewer, and no challenge can be made from the Utilization Review to a Workers’ Compensation Judge (WCJ).  In fact, the Utilization Review Determination Face Sheet has a specific box to be checked for when no Determination can be issued due to the failure to supply records.

Pennsylvania’s legislators try their best to represent their constituents; I believe this is true the vast majority of times.  But, there are certainly times when the results of their actions are very difficult to reconcile with the best interests of those they have sworn to protect.

Currently pending in the PA legislature is House Bill 18/Senate Bill 936.  If passed, this legislation would completely change how an injured worker in Pennsylvania can receive medications.  A “drug formulary” would be set up.  This means that no longer would a patient be treated based on the individual needs of the patient, and the individual judgement of his or her doctor.  Nope.  Instead, decisions would be based on “evidence-based medicine.”  That means that what medications would generally be prescribed for a given condition, for the period generally prescribed, would be all that an injured worker in PA could receive.

Therefore, the individual judgment of the doctor is totally irrelevant.  The needs of the patient?  Not a factor.  This is an absurd system, since medicine is not an exact science.  Indeed, any physician will openly admit that not every patient will react to every condition in the same way.  Some heal faster than others.  Not every patient has exactly the same symptoms or limitations, even from the same condition.

Several years ago, we were excited to tell everyone about the Supreme Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap).  It was this case that made clear workers’ compensation insurance carriers in PA could not simply use a classified “help wanted” ad to reduce every injured worker’s benefits.

If a workers’ compensation insurance carrier in Pennsylvania wants to reduce the benefits of an injured worker, said the Court, the jobs shown must not only be open at the time they are found, the potential jobs in a Labor Market Survey (LMS) or Earning Power Assessment (EPA) should “remain open until such time as the claimant is afforded a reasonable opportunity to apply for them.”  The reasoning behind this, of course, is that an LMS/EPA is not just a tool to cut the benefits of injured workers; it should be a device to assist an injured worker back to gainful employment.

The Commonwealth Court of Pennsylvania recently had to address exactly what a workers’ compensation insurance carrier needs to prove in this regard.  In Smith v. Workers’ Compensation Appeal Board (Supervalu Holdings PA, LLC), the injured worker (Claimant) hurt his neck and back.  At the time he was injured, he was earning an “Average Weekly Wage” (AWW; the calculation we do under the PA Workers’ Compensation Act to see the amount of benefits due to the injured worker) of $992.50.  The injury was accepted by the insurance carrier as a cervical strain and sprain (making eventual fusion surgery required due to the work injury a curious fit to that modest diagnosis).

Among the benefits available under the Pennsylvania Workers’ Compensation Act (Act), are “fatal claim” benefits.  Since these are only relevant for work accidents which involve the death of a worker, these are not things we like to often see.  Unfortunately, sometimes these things do happen, and they are cases which need attention.

In addition to modest “burial expenses,” fatal claim benefits also include benefits for any surviving minor children, and, potentially, a spouse (among other categories of possible recipients beyond this topic).  We say “potentially” since benefits to a spouse are not automatic.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Grimm v. Workers’ Compensation Appeal Board (Federal Express Corporation).  Here, the worker who died (Decedent) was employed by Federal Express.  She suffered a fatal heart attack while delivering packages in her normal course of work.

As we have previously mentioned, the Pennsylvania Bureau of Workers’ Compensation rarely provides official or formal notice regarding the addition or subtraction of Workers’ Compensation Judges (WCJs) in the Commonwealth.  As usual, it is up to us to point out these changes, from our contact with other attorneys, and from our appearances in the many workers’ compensation hearing offices across PA.

Along these lines, we announce, with mixed feelings, the retirement of The Honorable Paul Baker.  Over his illustrious career, Judge Baker has presided over cases in Philadelphia, Pottsville and Harrisburg (at least these are the courts where we have appeared before him over the years).  Judge Baker was always known for his thoughtful and thorough handling of his cases, and we will miss his intelligence and compassion from the bench.  On the other hand, we are thrilled for him personally, in that he can step away from the bench, and enjoy his retirement.

Please join us in congratulating Judge Baker on a wonderful career as a jurist, and wishing him well in his retirement!

Sometimes odd facts in a Pennsylvania workers’ compensation case make for an odd decision.  Yet, even then, we can often find something of use in that decision.  Seeing how appellate courts approach different situations helps us understand how that may translate to other fact patterns and enable us to better represent injured workers in PA.

Recently, the Commonwealth Court of Pennsylvania issued a decision in Dorvilus v. Workers’ Compensation Appeal Board (Cardone Industries).  Here, the injured worker hurt his low back in 2009.  A Claim Petition was filed, and a Workers’ Compensation Judge (WCJ) granted the Petition, awarding both disability and medical benefits.

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the decision of the WCJ as to the award of disability benefits (though the injured worker received disability payments until this reversal in 2013).  Though the injured worker did prove that a work injury took place, said the WCAB, he failed to prove that he was “disabled” as a result of that injury.  This was affirmed by the Commonwealth Court of Pennsylvania (not the decision we are discussing here).  Though requested, an appeal to the Supreme Court of Pennsylvania was not accepted (unlike the WCAB and Commonwealth Court of PA, the Supreme Court of PA has the discretion to accept or decline an appeal).

What is “medical treatment”?  Though most folks know that medical treatment for a work injury is covered under the Pennsylvania Workers’ Compensation Act (Act), even the courts seem confused as to what constitutes “medical treatment.”  In some ways, this issue was recently clarified by the Commonwealth Court of Pennsylvania.

In Schriver v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania, Department of Transportation), the injured worker suffered an injury to his low back.  For relief, the injured worker began treating with a chiropractor.  The chiropractor, in turn, referred the injured worker to a massage therapist in his office.  When presented with bills for the massage therapy, the workers’ compensation insurance carrier refused payment, denying that “massage therapy” falls under the category of “medical treatment.”

The injured worker filed a Petition for Review of Medical Treatment/Billing, and a Petition for Penalties.  After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted both Petitions and ordered payment of the massage therapy bills, in addition to penalties.

One of the tools in the arsenal of the workers’ compensation insurance carrier in Pennsylvania, in their fight to take away benefits from injured workers, is the “Labor Market Survey” (LMS), also known as an “Earning Power Assessment” (EPA).  Once an injured worker in PA has shown an entitlement to workers’ comp benefits, then the insurance carrier can use an LMS or EPA to show there are jobs available in the general community that the injured worker could get if he or she wished.  A “vocational expert” is used to locate these jobs.  This is typically followed by a Petition for Modification, seeking a reduction of workers’ compensation benefits based on the amount these potential jobs would pay.

As we discussed several years ago on this blog, the Supreme Court of Pennsylvania, in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), found that a defense to one of these Modification Petitions is for the injured worker to show that he or she applied to these supposed “open and available” jobs and did not receive an offer of employment.  This is a critical part of defending these Modification Petitions (typically).  However, the Court in Shoap did not specify exactly what the injured worker had to show to refute that the jobs were open and available (or how the insurance company could overcome the injured worker not receiving an offer of employment).

This brings us to a recent decision from the Commonwealth Court of Pennsylvania in Valenta v. Workers’ Compensation Appeal Board (Abington Manor Nursing Home and Rehab and Liberty Insurance Company).  Here, the injured worker suffered serious damage to  her neck and shoulder.  In fact, the injured worker required a cervical fusion due to the work injury.  After that surgery, the workers’ comp insurance company had a LMS/EPA performed.  The injured worker attempted to apply for each of the six jobs that were identified (Though she was only able to contact three of the six potential employers, and only able to actually apply for two of the jobs, she had a vocational expert testify regarding all six jobs).  No offer of employment was received by the injured worker.

We are proud when our attorneys are asked to participate in continuing legal education seminars.  Being invited to help educate other lawyers can only be viewed as a tremendous compliment.  And, so we are pleased to relay that one of our attorneys, Glenn Neiman, has been invited by the Workers’ Compensation Section of the Bucks County Bar Association to act as a moderator in a continuing legal education seminar the Section is presenting later this month.

The topic of the seminar will be addressing the interplay between the Heart & Lung Act (a benefit program to which police, firefighters and other first responders qualify) and the Pennsylvania Workers’ Compensation Act.  Since these two laws can both impact cases in different ways, it is important for attorneys who handle either of these types of cases to be aware of both laws.

Just the other day, an injured worker called us, complaining that their employer refused to send them to a “workers’ compensation doctor.”  It seems that there is more confusion in this area than in many within the complicated world of Pennsylvania workers’ compensation.

While medical treatment for the work injury is one of the benefits available to an injured worker under the Pennsylvania Workers’ Compensation Act (Act), this is not necessarily treatment with a doctor with any connection to the employer or the employer’s workers’ comp insurance carrier.  In fact, the ability to direct and control medical treatment is a BENEFIT to the employer, and a DETRIMENT to the injured worker.  As such, this control is only available if an employer complies with specific steps.

Under the Act, an employer may only be responsible for payment to a medical provider on a “panel posting” within the first 90 days of treatment.  Such a “panel posting” must be prominently displayed in the work place.   To be a valid “panel posting,” the posting must contain at least six providers, at least three of which are physicians (the remainder could be therapy facilities or other healthcare providers who are not doctors). No more than four of the six on the posting may be from the same practice.  The employer must have the injured worker sign an acknowledgement, both at the time of hire and as soon as practical after the injury, that the injured worker is aware of the panel posting. All of these requirements can be found in Section 306(f.1)(1)(i) of the Act.

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