Articles Posted in Medical Benefits

Previously, we have warned of the pending legislation that will restrict the access of injured workers across the State of Pennsylvania to get medications they need.  Now, thanks to the House passing Senate Bill 936, the legislation heads to the Governor.  It is not bad enough that innocent people suffered injuries at work, now they have to deal with the reality that they will be treated different than patients who are not in the Pennsylvania workers’ compensation system.

As noted in an article on Pennlive.com, this legislation “was drawn up in response to reports in the Philadelphia Inquirer and Daily News about doctors and law firms specializing in worker’s compensation that were operating their own pharmacies.”  Perhaps someone would be kind enough to explain why the legislation did not simply prohibit the ownership of pharmacies by these groups?  Instead, this legislation does not even deal with this issue.  At all.  Rather, the legislation makes medications (all medications, not just the opioids that caused all of the supposed angst) more difficult for an injured worker in PA to obtain.

And, again we ask, is this fair?  Is this how our elected representatives protect us?  By making sure that we have difficulty getting medications if we are unlucky enough to be injured at work?  We urge all injured workers, those who care about injured workers and those who care about fairness and justice, to reach out to their legislators, and reach out to the Governor’s office, and let everyone know this will not be done without a fight!

Previously on this blog, we have discussed the rights held by injured workers in Pennsylvania to choose their own medical providers.  This is only one area of confusion in the wacky world of medical benefits under the Pennsylvania Workers’ Compensation Act (Act).

A common complaint we get from an injured worker is that, “They are denying my medical treatment.”  In this situation, “they” is almost always the workers’ compensation insurance carrier.  And the word “denying” may or may not be accurate.

Under the Act, the workers’ comp insurance carrier has 30 days to either pay a medical bill or institute Utilization Review (the tool used to challenge whether medical treatment is reasonable or necessary), provided the bill is properly submitted by the medical provider (including supporting documentation).  As you can see, this means the workers’ compensation insurance company need not give an opinion on how they view treatment until it is actually performed.

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.

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.

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.

House Bill 18 has made it out of committee and is expected to be voted on early next week (Tuesday).  This bill would drastically change how injured workers in Pennsylvania would get their medications (and what medications they could get).  Basically, the Bill introduces “Evidence-Based Medicine” to PA workers’ compensation prescriptions.  This means that patients of a work injury would no longer be able to have care (or at least medicine usage) dictated by treating physicians; instead, the use of medications would be through established guidelines (amassing statistical data).  This, of course, ignores the simple fact that every patient is different and requires different care.  One cannot treat every person identically the same.

This could just be the first step in making “Evidence-Based Medicine” the care for every aspect of a work injury.  Imagine that your treating doctor is powerless to order care as he or she feels best, but is instead limited to what statistics say should be done for the majority of patients.  It is an absolute disgrace that Pennsylvania legislators think so little of injured workers to subject them to this kind of dangerous and substandard care.

Call your State legislators and tell them how you feel, before this Bill becomes reality!

As we mentioned before, both of the partners of Brilliant & Neiman LLC, Dina Brilliant and Glenn Neiman, were invited to appear on a television show hosted by Injured Workers of Pennsylvania. This show was aired live on August 19, 2013, and broadcast throughout the Berks County region of PA. The website for Berks County Television has a copy of the show in its archives, and it can be viewed on the internet by clicking here.

We at Brilliant & Neiman LLC thank Injured Workers of Pennsylvania for giving us this opportunity to speak to the public on issues regarding workers’ compensation in Pennsylvania. The primary topic was the status of House Bill 1636, which would eliminate choice of doctor for all injured workers in Pennsylvania. One of the jobs we, as attorneys representing injured workers, have is to educate the public, so injured workers know their rights under the Pennsylvania Workers’ Compensation Act.

As we mentioned previously, the Pennsylvania Legislature is planning another attack on injured workers in PA in 2013. This notion has now taken the form of House Bill 1636, which seeks to forever deny injured workers in PA the right to select their own physician.

Under the current provisions of the Pennsylvania Workers’ Compensation Act, if an employer follows the correct procedures and posts a proper list of at least six health care providers (at least three of which must be physicians), then the employer is only responsible for payment of medical treatment with the listed panel providers for the first 90 days of the injury.

If this Bill becomes law, however, an employer may list as few as a single Coordinated Care Organization (CCO) on a panel. Then, the injured worker would have to treat with this single organization, not for the first 90 days, but for the entire duration of the injury. That’s right – the legislature seeks to deny injured workers in PA from ever getting to select their own physicians.

Through the efforts of concerned citizens, and attorney groups united to support injured people, such as the Pennsylvania Association for Justice, there has been no legislation really harmful to the injured workers in Pennsylvania passed since 1996. Unfortunately, it appears there is now a new threat on the horizon, and we call on every injured person, and anyone who cares about the injured worker in PA, to make their concerns known to their State Representatives and State Senators.

The Pennsylvania Chamber of Commerce has a new “wish list” for the reform of the workers’ compensation system in PA. The changes desired by the Chamber primarily impact the medical providers, rather than the injured workers directly. Obviously, however, this will impact the injured worker by narrowing the treatment options open to injured workers in Pennsylvania, and generally add another layer of difficulty to what is already a minefield for those unfamiliar with the process.

One of the primary changes that the PA Chamber of Commerce would have made is to increase the time an injured worker in PA is required to treat with a company “doctor” from 90 days to 180 days. Any injured worker who has experienced substandard medical care in those first 90 days, or the difficulties of having a medical provider more concerned with a return to work than a cure, understands the significance of this expansion. No mention was made by the Chamber of the developing practice we are seeing where the injured worker is stuck with a nurse practitioner for that captive period, effectively denying the injured worker from even being evaluated by a medical doctor.

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