Court Finds No Error When Claimant and Claimant’s Attorney Not Served on Utilization Review Determination

Utilization Review is the process through which either party, though usually the workers’ compensation insurance carrier, can challenge whether medical treatment is reasonable and necessary. We have addressed this topic on several occasions. When a Utilization Review Determination is received, the party who lost can appeal (by filing a Petition for Review of Utilization Review Determination), and then the matter is heard before a Workers’ Compensation Judge (WCJ).

What if, though, neither Claimant nor Claimant’s attorney are even aware of the Utilization Review Determination? Certainly the insurance carrier cannot use the Determination to not pay for treatment, despite not providing a copy, right? Apparently they can, says Commonwealth Court of Pennsylvania.

In Marek v. Workers’ Compensation Appeal Board (Logistics Express, Inc.), Claimant and Claimant’s attorney only became aware of the Utilization Review Determination when payment for medications was allegedly denied based on a Utilization Review Determination. Claimant’s attorney then even obtained records from the Bureau of Workers’ Compensation, and no Utilization Review Determination was on file. Having no other alternative, Claimant’s attorney filed a Petition for Penalties, for the non-payment of the medications.

Before the WCJ, Claimant’s attorney argued that the workers’ comp insurance carrier violated the Pennsylvania Workers’ Compensation Act, by failing to serve the Utilization Review Determination on Claimant or Claimant’s Counsel (Note that the Utilization Review Organization [URO], selected by the Bureau, alleges that service was made to Claimant, just not the attorney).

The WCJ denied the Petition for Penalties, finding that there is no requirement for the workers’ comp insurance carrier to serve the Utilization Review Determination on Claimant or Claimant’s attorney. This was affirmed on appeal to the Workers’ Compensation Appeal Board (WCAB) and to the Commonwealth Court of Pennsylvania. The Court noted that the URO may have erred, but penalties cannot be assessed against the URO, nor can the workers’ comp insurance carrier be penalized for the actions of a URO. (This author is curious whether, at least, the URO was taken off the Bureau list of approved UROs).

There is no dispute by this author that the Act does, indeed, not require the workers’ comp insurance carrier make such service. However, the analysis should not have ended there. The workers’ comp insurance carrier denied payment for ongoing medical treatment based on this document. In basic fairness, does the insurance carrier still not have an obligation to serve a copy on the injured worker or his or her attorney? We believe otherwise. It is cowardly, and arguably deceitful, for the insurance carrier to base a decision to withhold payment for medical treatment and then not provide the basis for such a decision.