Utilization Review Determination Cannot be Appealed

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.

Recently, Allison v. Workers’ Compensation Appeal Board (Fisher Auto Parts, Inc.) was decided by Commonwealth Court of Pennsylvania.  Here, the healthcare provider under review did not submit records to the Utilization Review Organization (URO).  However, the reviewer did speak to the provider by telephone (it is not apparent whether the reviewer also had a statement from the injured worker).  The reviewer issued a report addressing the merits of the treatment, finding that it was not reasonable or necessary because, “The documentation is not adequate to support the treatment under review.”  Importantly, the Utilization Review Determination Face Sheet simply checked off the box stating that the treatment was not reasonable or necessary.  The box stating that a report could not be issued, due to the failure to provide records, was NOT checked.

The injured worker filed a Petition for Review of Utilization Review Determination.  Since the healthcare provider did not supply records to the URO, the workers’ comp insurance carrier asked the WCJ to simply dismiss the Petition, in that the WCJ lacked jurisdiction.  This motion was denied by the WCJ, since the reviewer did prepare a substantive report addressing the treatment at issue, giving the WCJ a report that could be reviewed.

The WCJ found both the testimony of the injured worker, and the provider under review, credible, and granted the Petition, finding the treatment reasonable and necessary.  Unfortunately, this decision was reversed by the Workers’ Compensation Appeal Board (WCAB), who found that the WCJ lacked jurisdiction to review the reasonableness and necessity of the medical treatment simply because the healthcare provider did not submit medical records to the URO.

The decision of the WCAB was affirmed by the Commonwealth Court of Pennsylvania.  Despite the fact that the reviewer did prepare a report addressing the medical treatment, and the Utilization Review Determination Face Sheet did not check off the box that a report could not be issued, the Court found that the WCJ did lack jurisdiction to decide the reasonableness and necessity of the medical treatment at issue.  The Court found that the conversation between the provider under review and the reviewer did not constitute a “record” because it was an oral account of the treatment.  A subsequent narrative report by the provider was not a “record” because it was prepared after the UR was performed (and not at the time of the medical treatment).

While we strive not to be critical of our appellate courts, cases like this leave us little alternative.  To deny medical treatment to an injured worker based on a technicality puts form completely over substance.  In this case, the Utilization Review Determination Face Sheet did not state that a report could not be completed due to the absence of records.  A report was prepared which addressed the merits of whether the treatment was reasonable and necessary.  Plus, who could deny that an actual conversation with the provider could form the basis of a determination on whether medical treatment is reasonable or necessary?  In addition, the Court fails to even address the statement of the injured worker (assuming one was submitted).

Since medical treatment could potentially be reasonable and necessary simply on the word of the injured worker, it is mean-spirited and illogical to preclude the ability to challenge a negative UR simply because a provider fails to supply records (even aside from the actual conversation with the provider, and the subsequent narrative report from the provider).  The injured worker, in this situation, did nothing wrong, yet it is he or she who has to deal with the inability to get needed medical treatment.  This needs to change.