DOCTOR SUBJECT TO UR PROVIDED SOME RECORDS TO URO SO WCJ HAD JURISDICTION TO ENTERTAIN CLAIMANT’S PETITION FOR REVIEW OF UR DETERMINATION

The insurer in Lindtner v. W.C.A.B. (Acme Markets and Broadspire Services, Inc.), No. 2080 C.D. 2007, filed a UR request regarding the treatments of Dr. Avart as of August 5, 2004 and continuing. The URO assigned to perform the UR requested Dr. Avart’s records. However, Dr. Avart only provided an office note from an August 5, 2004 visit. The doctor performing the UR issued a Determination finding Dr. Avart’s treatments unreasonable and unnecessary as of August 5, 2004 and continuing, due in part, to the fact that Dr. Avart did not provide proper documentation in support of his treatments.

The claimant filed a Petition for Review of the UR Determination.

The WCJ issued a Decision denying the Petition for Review. In the Decision, the WCJ concluded that because Dr. Avart did not provide all of his records to the URO, she did not have jurisdiction over the Petition for Review, based on Commonwealth Court’s Opinion in County of Allegheny v. W.C.A.B. (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005). (holding that a WCJ does not have jurisdiction over a Petition for Review if the doctor under review does not provide records). In the alternative, the WCJ also dismissed the Petition for Review as the WCJ credited the opinion of the insurer’s medical experts that Dr. Avart’s treatments were not reasonable or necessary.

The Appeal Board concluded that the WCJ erred in holding that she did not have jurisdiction to entertain the Petition for Review based on Geisler. The Board based this on the fact that Dr. Avart provided some records to the URO while in Geisler the doctor provided no records to the URO.

However, the Appeal Board upheld the denial of the claimant’s Petition for Review based on the fact that the WCJ credited the opinions of the insurer’s medical experts that Dr. Avart’s treatments were not reasonable or necessary.

Commonwealth Court agreed with the Board that its decision in Geisler did not deprive the WCJ of jurisdiction to rule on the claimant’s Petition for Review of the UR Determination—because the Court also observed that Dr. Avart provided some records to the URO. The Court then held that because the WCJ credited the opinions of the insurer’s medical experts that Dr. Avart’s treatments were not reasonable or necessary, they would not overturn the WCJ’s denial of the Petition for Review of the UR Determination.

APPEAL BOARD INCREASED DISFIGUREMENT AWARD FROM 6 WEEKS TO 36 WEEKS BUT FAILED TO ADEQUATELY EXPLAIN WHY IT DID SO

In City of Pittsburgh v. W.C.A.B. (McFarren), No. 1701 C.D. 2007, the WCJ awarded 6 weeks of compensation benefits for a disfiguring scar on the claimant’s neck. The claimant appealed and after viewing the scar, the Appeal Board increased the award to 36 weeks. The City argued to Commonwealth Court that the Appeal Board erred in increasing the WCJ’s award from 6 weeks to 36 weeks.

The Court noted that the Appeal Board is allowed to view a disfigurement and modify a WCJ’s award to make sure that the WCJ’s award was reasonably consistent with other similar disfigurement awards throughout the Commonwealth. However, the Court indicated that the Board may only change a WCJ’s award if the Board concludes, after its viewing, that the WCJ capriciously disregarded competent evidence by awarding a number of weeks that were significantly outside the range that most WCJ’s would award for a similar scar.

The Court suggested that if the Board changed a WCJ’s disfigurement award, the Board must adequately explain its decision, to allow for meaningful appellate review. The Court suggested that the Board must indicate what range of awards would be acceptable for the disfigurement in question; what most WCJ’s would award within in that range; and the Board must explain why it concluded that most WCJ’s would award greater compensation for a similar disfigurement.

With respect to the decision to increase Mr. McFarren’s disfigurement award from 6 weeks to 36 weeks, Commonwealth Court remanded the matter because the Court felt that the Board’s explanation as to why it increased the award was inadequate.

INSURER HAS BURDEN DURING TERMINATION PROCEEDINGS TO PROVE A RECOVERY FROM ACCEPTED WORK INJURIES

In Paul v. W.C.A.B. (Integrated Health Services), No. 16 C.D. 2008, the issue addressed by Commonwealth Court was the insurer’s burden of proof in termination proceedings.

The claimant suffered injuries in the nature of contusions of the left ankle, left wrist, left thigh and right knee. The insurer obtained an IME and after the IME, the insurer filed a termination petition averring that claimant had recovered from the injuries. When testifying, the IME doctor acknowledged a number of diagnoses that had been offered by the medical providers who had treated the claimant prior to the date of the IME. Even though the IME doctor acknowledged that the doctors had made these diagnoses, the IME doctor still opined that the claimant had recovered from the accepted work injuries.

The WCJ credited the opinion of the IME doctor and benefits were terminated. The Appeal Board affirmed.

Before Commonwealth Court, the claimant argued that a termination could not be granted because the IME doctor failed to opine that her condition had changed/improved since the prior diagnoses had been made. In making this argument, the claimant relied upon Lewis v. W.C.A.B. (Giles & Ransome, Inc.), 919 A.2d 922 (Pa. 2007), which held that during a termination proceeding, the IME doctor can not ignore prior adjudications as to a claimant’s physical condition.

In rejecting claimant’s argument, the Court noted that in Lewis, there had been adjudications as to the nature of the claimant’s medical condition, so the IME doctor was required to address that condition during the IME. Meanwhile, the Court noted that there had never been prior adjudications as to Ms. Paul’s conditions—instead there were a series of diagnoses from her doctors. The Court concluded that the IME doctor was not obligated to accept the earlier diagnoses and then testify that the claimant’s condition had improved/changed since those diagnoses were made. Ultimately, the Court concluded that because the IME doctor addressed the accepted injuries, i.e. contusions of the left ankle, left wrist, left thigh and right knee, and the doctor opined that the claimant had recovered from those injuries, the IME doctor’s opinions were sufficient to support a termination. Therefore, the Court chose not to overturn the WCJ’s granting of the termination petition.

CLAIMANT MAY NOT NEED TO PRESENT MEDICAL EVIDENCE OF A DISABILITY

On September 3, 2004 the claimant in YDC New Castle-PA DPW v. W.C.A.B. (Hedland), No. 230 C.D. 2008, suffered injuries as a result of being assaulted by a student. The claimant began receiving compensation benefits beginning September 6, 2004—thus, only indemnity benefits for September 4th and 5th were at issue in the case.

The employer argued that it was not obligated to pay indemnity benefits for the 2 days in question because the claimant failed to produce medical documentation to support his absence from work. The employer pointed to its employee handbook, which required injured employees to provide medical documentation to support a work absence. The handbook also required that the medical excuse be based on a medical examination that occurred on the first date of the absence.

Meanwhile, the claimant admitted that he did not seek medical treatment on the 2 days in question because he did not believe that his injuries constituted an emergency.

The WCJ credited the claimant’s testimony as to his disability and the WCJ granted the Claim Petition for the 2 days at issue. The Appeal Board affirmed.

Before Commonwealth Court, the employer argued that the WCJ capriciously disregarded evidence that its handbook required medical documentation to support the claimant’s absence for the 2 days in question. The employer contended that the WCJ’s ruling would allow its workers with accepted work injuries to call off work and then attribute their absences to their work injuries without providing medical evidence.

The Court first looked to Section 407 of the Workers’ Compensation Act, which holds in relevant part, “any agreement varying the amount to be paid or the period during which compensation shall be payable under the Act, shall be wholly null and void.” The Court concluded that regardless of the fact that the employer had a policy requiring a medical excuse, this policy, according to Section 407, could not be used to limit the time period that compensation was payable.

The Court then suggested that a claimant seeking benefits for a work injury always has the burden of proving that absences are related to the work injury. The Court held that because the WCJ credited the claimant’s testimony he could not work on September 4th and 5th, which the WCJ was free to do, they would not overturn the finding that the claimant was disabled on those 2 days even though claimant did not give a medical excuse to the employer.

The Court also held that if the employer wanted to argue that the claimant postponed his medical treatment immediately after the work injury to the point that he forfeited his right to receive benefits, then the employer had to make an argument under Section 306(f.1)(8) --which allows for a forfeiture of benefits for a refusal of medical treatment. The Court then observed that the employer did not make such an argument to the WCJ, so the issue was waived by the employer.

Of interest, the employer pointed out that the WCJ’s ruling would allow its injured workers to avoid the detection of illegal drug use by waiting a few days before seeking treatment to allow the drugs to get out of their systems. While the Court acknowledged that the employer’s failure to obtain information as to a claimant’s intoxication may be impacted by the failure of the injured worker to seek immediate medical attention, the Court suggested that the possibility that an injured worker may wait to seek treatment to avoid detection of intoxication, was too speculative. Since the theory was too speculative, the Court rejected it.