Review of Utilization Review Barred Even When Doctor Sends Medical Records

In PA, when a workers’ compensation insurance carrier wants to challenge whether medical treatment is reasonable or necessary, the insurance carrier can request Utilization Review (UR). In such a case, the PA Bureau of Workers’ Compensation assigns the UR Request to a Utilization Review Organization (URO). The URO then obtains records from the provider under review, and a personal statement from the injured worker if he or she wishes, and a Utilization Review Determination is issued. This Determination can then be appealed by either party by filing a Petition to Review Utilization Review Determination.

However, if the healthcare provider under review fails to submit records, the regulations to the Pennsylvania Workers’ Compensation Act require the URO simply find treatment unreasonable and/or unnecessary, because records were not submitted. In this situation, no report is prepared by the URO, and no findings on the merits are made. Importantly, this type of Determination cannot be appealed under the County of Allegheny v. Workers’ Compensation Appeal Board case, decided by Commonwealth Court of Pennsylvania in 2005.

Recently, the Commonwealth Court of Pennsylvania has made things even worse for injured workers, by extending County of Allegheny. The case of Sexton v. Workers’ Compensation Appeal Board (WCAB) was decided by the Court on May 22, 2009. In Sexton, the provider submitted records to the URO, but forgot to submit a verification with the records. The URO returned the records to the provider, so the provider could resubmit the records with the required verification. Unfortunately, the provider never resubmitted the records or the verification.

The Workers’ Compensation Judge (WCJ) ordered a new UR be performed. The WCAB, though, reversed. This was affirmed by the Commonwealth Court of PA. The Court found that the verification was required to be submitted, to assure the records were true and correct. Since the verification (and the records) were never resubmitted, the URO could not generate a report and reach a Determination on the merits. As such, under County of Allegheny, the Determination could not be appealed by the injured worker.

I find County of Allegheny inconsistent with the terms, and the spirit, of the Pennsylvania Workers’ Compensation Act, which was intended to be humanitarian legislation, beneficial to the injured worker. Sexton then extends the harm even further. Records were actually submitted in Sexton. As the dissent by Judge Johnny J. Butler (former Secretary of the PA Department of Labor & Industry) observed, there was no authority in the Act for the URO to send the medical records back to the provider. Worse, even if medical records could not be used on appeal, what is the basis for precluding the injured worker from testifying as to the reasonableness and/or necessity of the treatment at issue? Under the Act, if the testimony of the injured worker was found credible, this could be the basis to grant a Petition to Review Utilization Review Determination. Under current law, however, the injured worker cannot even file the Petition to Review Utilization Review Determination when the provider fails to submit records.