TTH eNotes: Workers’ Compensation: January, 2019

SIGNIFICANT PENNSYLVANIA CASE SUMMARIES

Temple East, Inc. v. WCAB (Perri), No. 286 C.D. 2018 (December 20, 2018)

Pennsylvania Commonwealth Court, Unpublished

By: Deborah B. Richman, Esquire

To avoid a finding of unreasonable contest, a party seeking to challenge a prior Utilization Review (UR) determination regarding reasonableness and necessity of medical treatment that was decided against that party may do so where there is either 1) a change in the claimant’s condition following the period under review in the first decision; or 2) a substantial period of time has elapsed from the earlier challenge.

Background: On January 9, 2009, Claimant sustained a work-related injury accepted as sprain/strain of left knee, left wrist and neck. The parties entered into an indemnity-only Compromise & Release Agreement on January 29, 2014, with Employer remaining responsible for reasonable, necessary and related medical treatment. Thereinafter, Employer requested a Utilization Review regarding physical therapy treatment. The UR determination found that all physical therapy from June 2, 2014, and ongoing was unreasonable and unnecessary. Claimant petitioned for review. The WCJ found, contrary to the UR determination, that all treatment was reasonable and necessary.

On May 11, 2015, one month after the WCJ decision, Dr. William Murphy performed an Independent Medical Examination finding Claimant at maximum medical improvement and opining that formal physical therapy was neither reasonable nor necessary. Employer immediately requested another UR of the same physical therapy treatment from the same physical therapist. The UR reviewer found that all treatment from May 26, 2015, and ongoing was unreasonable and unnecessary. Claimant petitioned for review of the second UR determination. The WCJ found that Employer was collaterally estopped from challenging the reasonableness and necessity of the physical therapy treatment because it was the exact same treatment at issue in the prior UR, and the time period for the second UR began about 21 days after the WCJ’s previous decision. The WCJ also reached the merits of the UR Petition concluding that Employer had not met its burden of proof that the treatment was unreasonable and unnecessary based upon the evidence submitted. Finally, the WCJ concluded that Employer did not have a reasonable contest and awarded an attorneys fee of $1,500.00. On appeal to the WCAB, the Board affirmed the decision of the WCJ except as to the quantum meruit fee; the Board determined that the opinions of Dr. Murphy provided a sufficient basis to support a reasonable contest. The parties cross-appealed to the Commonwealth Court.

Holding: The Commonwealth Court held that the WCJ did not err in concluding that Employer was collaterally estopped from challenging the reasonableness and necessity of the treatment provided by the physical therapist because the two UR requests were filed less than a year apart, Dr. Murphy performed the IME two weeks after the WCJ ruled in her favor on her first petition, and Employer cited no evidence of a change in Claimant’s condition that would allow Employer to avoid issue preclusion.

Claimant’s petition for review of the WCAB’s reversal of the WCJ’s quantum meruit award was quashed as untimely. The Court explained that an untimely appeal may be permitted nunc pro tunc if the delay was caused by extraordinary circumstances involving fraud, a breakdown in the administrative process or non-negligent circumstances related to the claimant, her counsel, or a third party. The Court determined that not only did Claimant not meet the heavy burden to justify an untimely appeal, but she did not explicitly request nunc pro tunc relief so it could not be considered.

Takeaway: Prior to requesting a repeat Utilization Review upon the same or similar treatment with the same provider, the employer should take care to establish medical evidence of a change in condition unless a substantial period of time has passed since the resolution of the prior UR. The Court has not defined what constitutes a substantial period of time, but this decision implies that it may not be less than a year between UR requests.

Questions about this case can be directed to Deborah B. Richman, at (215) 564-2928 or drichman@tthlaw.com

Brown v. WCAB (Atlantic Roofing, Corp.), No. 547 C.D. 2018 (December 21, 2018)

Pennsylvania Commonwealth Court, Unpublished

By: Deborah Richman, Esquire

The Commonwealth Court discussed the difference between a work-related injury and a compensable work-related disability. Furthermore, the Court confirmed that a failure to issue a Bureau document within 21 days of notice of a work-related injury is a violation of the Act. The issuance of a penalty as a result of such violation is at the discretion of the WCJ.

Background: Claimant filed a Claim Petition alleging work-related injuries of electrocution with lumbar strain/sprain, lumbar disc herniation, and radiculopathy sustained on December 3, 2015, and alleged disability as of January 15, 2016. Claimant was laid off due to a lack of work on January 16, 2016. On January 19, 2016, Claimant presented a doctor’s note that he was unable to work. Employer thereinafter offered Claimant his job via telephone call, but Claimant said he could not work.

The WCJ denied Claimant’s Claim Petition finding that while he did suffer an electric shock, he did not sustain a work-related injury. The WCJ noted some of the bases for this finding including that Claimant had a normal neurological exam and did not manifest any physical signs of an electrocution at the ER and that he returned to full duty work for six weeks after the electric shock, prior to being laid off for a lack of work. The WCJ denied Claimant’s Penalty Petition concluding that Employer’s failure to take action within 21 days after receiving notice of Claimant’s injury did not violate Section 406.1(a) of the Workers’ Compensation Act.

Holding: The Commonwealth Court held that the WCJ erred in concluding that Claimant was not “injured” on December 3, 2015, while working for Employer as the WCJ found that Claimant suffered an electric shock. However, the WCJ did not err in finding that Claimant did not sustain a compensable work-related disability, resulting in lost earnings, as a result of the electric shock. The Court remanded to the WCJ to calculate an award of medical benefits, if any, associated with Claimant’s December 3, 2015 work-related injury.

As to the Penalty Petition, the Court found that Employer did violate the Act by not issuing a Bureau document such as a medical-only Notice of Temporary Compensation Payable within 21 days of notice of the injury. However, it is within the WCJ’s discretion whether to impose penalties for a violation of the Act. Furthermore, Section 435(d)(i) of the Act states that employer may not be penalized in excess of ten percent of the amount awarded and interest accrued and payable. Because the WCJ denied the Claim Petition, no benefits were awarded. Because no benefits were awarded, a penalty would have been based on an amount of zero. Therefore, the WCJ did not abuse its discretion in declining to award a penalty based upon the violation of the Act.

Takeaway: Employer avoided a penalty for failure to issue a Bureau document within 21 days of notice of the work-related injury because the WCJ did not find that Claimant was disabled, and therefore there was no award of compensation upon which to base a penalty. The best practice is to issue a Bureau document such as a medical-only NTCP for every reported work-related injury.

Questions about this case can be directed to Deborah B. Richman, at (215) 564-2928 or drichman@tthlaw.com