Utilization Review Petition in PA Workers’ Comp Allows New Evidence

When either party to a PA workers’ compensation case wants an opinion on whether medical treatment is reasonable and necessary (and this is usually requested by the workers’ comp insurance carrier, rather than the injured worker), the procedure is to file a Request for Utilization Review (UR).

The Pennsylvania Bureau of Workers’ Compensation then assigns a Utilization Review Organization (URO) randomly from a list. Following submission of records, and frequently a personal statement from the injured worker, the URO issues a Utilization Review Determination. The party against whom the URO finds has the right to appeal, by filing a Petition for Review of Utilization Review Determination.

This Petition will be assigned to a Workers’ Compensation Judge (WCJ). The litigation of a Petition for Review of Utilization Review Determination is called a “de novo” proceeding. That translates to, roughly, “from the start.” In this situation, it means the parties are not limited to the evidence before the URO; instead, the parties can submit whatever evidence to the WCJ that they desire.

Previously, in 2005, the Commonwealth Court of Pennsylvania decided the matter of United States Steel Corporation v. Workers’ Compensation Appeal Board (Luczki), holding that it is an “unreasonable contest” when a workers’ compensation insurance carrier appeals a UR Determination without “contrary medical evidence” in its possession at the time the Petition for Review of Utilization Review Determination is filed.

Recently, the Commonwealth Court of PA had to address this issue a step further in The Road Toad, Inc. v. Workers’ Compensation Appeal Board (McLean). Here, there was no dispute that the PA workers’ comp insurance carrier did not have contrary medical evidence in its possession when it appealed a UR Determination, but obtained an Independent Medical Examination (IME) to support its position AFTER the Petition for Review of Utilization Review Determination was filed.

The WCJ granted the PA workers’ comp insurance carrier’s Petition, but the Workers’ Compensation Appeal Board (WCAB) reversed. The WCAB concluded that the WCJ could not base his decision on the results of the IME, because, under Luczki, that evidence had to be in the insurance carrier’s possession before the appeal, and it was not.

Upon further appeal, the Commonwealth Court of Pennsylvania reversed the WCAB, and reinstated the decision rendered by the WCJ. Whether or not there was an unreasonable contest has no relevancy as to whether or not the testimony of the IME physician was admissible. Since a Petition for Review of Utilization Review Determination is a de novo proceeding, the WCJ was correct to consider the results of the IME, and the Petition was properly granted, said the Court.