Chiropractic Treatment Not Reasonable and Necessary in PA Without Lasting Improvement Beyond Other Available Methods

We have discussed Utilization Review in our Blog on several occasions, many times dealing with whether “palliative” treatment (that treatment which relieves pain, but does not change or cure the condition) is reasonable and necessary. This issue, and the timing within which a Utilization Review Determination must be issued, was recently addressed by the Commonwealth Court of Pennsylvania.

In Womack v. Workers’ Compensation Appeal Board (The School District of Philadelphia), the Commonwealth Court of Pennsylvania affirmed a decision by a Workers’ Compensation Judge (WCJ) finding the chiropractic treatment not reasonable or necessary.

The injured worker suffered herniated discs in the lumbar spine, right medial meniscal
tear, right shoulder pain, and chronic lumbar pain with anxiety and depression, in the work injury. Seeking relief from her symptoms, the injured worker began treating with a chiropractor. As so frequently happens, the workers’ comp insurance carrier promptly filed for Utilization Review (UR). Under the Pennsylvania Workers’ Compensation Act, the filing of the UR allows the insurance carrier to stop paying for the treatment being challenged.

To make sure a UR is decided in a timely fashion, the Pennsylvania Workers’ Compensation Act contains specific time limitations on how long a Utilization Review Organization (URO) has to make a determination regarding whether the treatment at issue is reasonable or necessary. In this case, the facts make clear that the URO exceeded the permitted time limitations. The injured worker argued to the WCJ that the determination rendered by the URO should be thrown out, because it was untimely. In the alternative, the injured worker argued that the chiropractic treatment provided her relief, and should be found reasonable and necessary. The WCJ disagreed on both counts, and found the treatment unreasonable and unnecessary. Upon appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision.

The Commonwealth Court of Pennsylvania also affirmed. As to the issue of the timing, the Court said the WCJ was correct to not throw out the untimely UR because the URO was not a party and the delay was not the fault of the workers’ comp insurance carrier. Essentially, the Court felt it would be wrong to punish the insurance carrier for something beyond its control. The Court seemingly failed to recognize the severe prejudice to an injured worker, who goes longer without having treatment paid for. Given that the burden of proof on a UR is always with the insurance carrier, it would appear objectively, that the determination should have been thrown out as untimely. Either way, one party will be punished for something beyond its control; given the remedial nature of the Act, and the relative burdens, that party seemingly should have been the insurance carrier.

As to the merits of the chiropractic treatment, the Court said the WCJ was correct in his findings. The WCJ noted that relief from the chiropractic treatment was only temporary (which, by such a standard, all medications would be unreasonable and unnecessary). The Court also noted that the WCJ found, as the ultimate finder of fact, that the injured worker “‘is able to perform the exact treatment she receives at (the chiropractor) from her own home’ and that she ‘admitted she feels the same amount of relief at home when performing those treatments as she does in the doctor’s office.'” While the former does not seem a valid reason upon which to deny treatment, admittedly, the latter could serve as a sufficient basis.