TTH eNotes: Workers’ Compensation: January 2020

SIGNIFICANT PENNSYLVANIA CASE SUMMARIES

Keystone Rx LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Compservices Inc./AmeriHealth Casualty Services), No. 1369 C.D. 2018, reported (Pa. Commw., filed December 12, 2019).

By Justin D. Beck, Esquire

In a reported decision, the Commonwealth Court held that, in all future UR procedures where an employer, insurer, or an employee requests UR, a provider which is not a “health care provider” as defined in the Act, such as a pharmacy, testing facility or provider of medical supplies, must be afforded notice and an opportunity to establish a right to intervene under the usual standards for allowing intervention.

Background: There, the claimant was injured in 2014 and had received compensation. He received a variety of medical care, including prescriptions as dispensed by “Pharmacy,” which served as the subject of a 2017 UR request filed by the insurer. Pursuant to an August 2017 UR determination, those prescriptions were found to be unreasonable and unnecessary. Although review petitions pertaining to the determinations followed, the same were ultimately to be withdrawn in light of a C&R.

Thereafter, in July 2017, Pharmacy filed applications for fee review as a result of the unpaid prescriptions which had been the subject of the UR. The Medical Fee Review section concluded that Pharmacy was due payment in the amount of $3,616.46 for compound cream and $887.66 for Naprelan tablets. Insurer filed a request for hearing to contest the determinations, maintaining that the treatment was not causally related to the work injury, and, in any event, had been deemed unreasonable and unnecessary. The Hearing Office vacated the administrative determinations and dismissed the fee review applications on the basis that Pharmacy lacked jurisdiction in the fee review arena to challenge the prior UR determination.

Pharmacy appealed to the Commonwealth Court, which has now affirmed the Hearing Office, while simultaneously directing new notice requirements for the intervention of certain health care providers.

Legal Analysis: On appeal, Pharmacy argued that the Hearing Office’s reliance on the UR determination had resulted in an improper deviation of its due process rights with respect to payment of the aforementioned prescriptions, as it had not been a party to the same.

The court began its analysis by reviewing the critical and controlling statutory provisions, to wit, Section 306(f.1)(5) of the Act, which addresses the fee review process, and Section 306(f.1)(6), which addresses the UR process. It is notable that these latter provisions permit review only by or on behalf of the employer, insurer, or employee. Accordingly, a provider, such as a pharmacy, may initiate only an action disputing the amount or timeliness of payment, but not one challenging the reasonableness or necessity of treatment.

Relying, in part, upon its recent decision in Armour II (Armour Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office (Wegman’s Food Markets, Inc.), 206 A.3d 660 (Pa. Cmwlth. 2019)), the court emphasized that a prior UR determination is indeed binding upon the Fee Review Hearing Office. Here, as the medications at issue had been found to be unreasonable and unnecessary, the court concluded that the Hearing Office had correctly held that Pharmacy’s attack on the facial validity of the UR process was beyond its purview.

Notwithstanding the court’s affirmance of the Hearing Office’s decision, it went on to acknowledge “that there are due process issues for providers such as Pharmacy that are precluded from participating in the UR process but nonetheless are bound by the results that follow them to the fee review process at issue herein.” For this reason, the court held that, moving forward, “where an employer, insurer, or an employee requests UR, a provider which is not a ‘health care provider’ as defined in the Act, such as a pharmacy, testing facility or provider of medical supplies, must be afforded notice and an opportunity to establish a right to intervene under the usual standards for allowing intervention.”

Takeaway: In light of Keystone Rx, it is now critical that employers and insurers alike provide proper notice to pharmacies, testing facilities, medical-supply providers, and all other “health care providers” not otherwise defined by the Workers’ Compensation Act so as to ensure conformity with this change in the law. However, as the Bureau of Workers’ Compensation has not, to date, modified or created any forms to comport with this requirement, close consultation with counsel in such situations is advised.

Any questions regarding this case can be directed to Justin D. Beck, Esquire, at JBeck@tthlaw.com or (412)-926-1441.

 

Sota Construction Services, Inc. v. WCAB (Czarnecki, Zawilla d/b/a Gorilla Construction, and UEFG), No. 87 C.D. 2019, reported (Pa. Commw., filed December 20, 2019).

By Justin D. Beck, Esquire

In a reported opinion, the Commonwealth Court, addressing an issue of first impression, held that a joinder petition is to be considered timely where filed within 20 days following the first hearing at which evidence is received regarding the reason for which joinder is sought, so long as the underlying original claim petition is filed within three years from the date of injury.

Background: There, the claimant had filed a claim petition in August 2012, alleging multiple injuries occurring in the course of employment with Construction Company in October 2009. Only days after that filing, the claimant learned that Construction Company did not carry workers’ compensation insurance. In October 2012, and still within the controlling three-year statute of limitations, the claimant filed a claim petition against the UEGF. The UEGF subsequently filed a joinder petition against General Contractor, which, in turn, moved to strike the petition on the basis that it had been filed more than three years following the date of injury. The WCJ was to issue multiple interlocutory orders, holding that the joinder petition was untimely and that the claimant was an employee of Construction Company. In a final decision and order, the WCJ granted the claim petition, finding that the claimant had indeed suffered a work-related injury and incurred a closed period of total disability.

Construction Company and the UEGF appealed to the WCAB, which determined that the joinder petition had in fact been timely. On remand, the WCJ found that General Contractor was the claimant’s statutory employer and granted the UEGF’s joinder petition.

Statutory Employer appealed to the WCAB, which affirmed the WCJ, and subsequently appealed to the Commonwealth Court, which has now affirmed the Board.

Legal Analysis: On appeal, Statutory Employer advanced three primary arguments: (1) that Section 315 of the Act bars a joinder petition filed more than three years following the date of injury; (2) the amendment to the claimant’s claim petition, effectuated by the filing of the joinder petition, was also untimely under Section 315 as the same created a new cause of action outside the three-year statute of limitations; and (3) that Sections 131.36(d) and (h) of the WCJ Rules, pertaining to timely filing for joinder, conflict with Section 315’s statute of limitations.

The court, however, was unpersuaded by any of Statutory Employer’s arguments.

As it pertained to the law surrounding timeliness, the court emphasized that Section 315 requires one of the parties to file a petition within three years from the date of injury. Notably, here, it was undisputed that the claimant had filed his claim petition within the three-year time limit set forth by Section 315. Because “one of the parties” “filed a petition” “within three years after the injury,” the claimant’s claim was viable. Thus, pursuant to Section 131.36(d) of the WCJ Rules, the UEGF had “20 days after the first hearing at which evidence [was] received regarding the reason for which joinder is sought” to file the joinder petition. This, the record showed, had indeed occurred. As the underlying original petition had been timely filed, and the UEGF filed its joinder petition within 20 days of receiving critical evidence, the joinder petition was also considered to have been timely filed. Any other interpretation, the court cautioned, would permit a claimant to file a claim petition against the UEGF on the last day of the three-year time limit, thereby unjustly precluding the UEGF from joining additional defendants.

The court further dismissed Statutory Employer’s argument that the resultant amendment to the claim petition, effectuated by the filing of the joinder petition, had created a new cause of action outside of the three-year time limit. To this end, as the amendment did not change the claimant’s theory of recovery, i.e., that he suffered multiple injuries occurring in the course of his employment on a date certain, the amendment was not conceptualized as containing a new cause of action.

Finally, the court found no conflict between Section 315 of the Act and Sections 131.36(d) and (h) of the WCJ Rules, as the latter speak only to the timing of joinder after a claim is filed. Here, because the claimant’s claim petition was filed within the three-year time limit of Section 315, and the joinder petition was not barred by the same, the WCJ Rules controlled the timing of the latter.

For all of these reasons, the court affirmed the Board, holding that the UEGF’s joinder petition was, in fact, timely filed.

Takeaway: With Sota Construction Services, it is now clear that a joinder petition cannot be defended against on the basis of timeliness where the same is filed more than three years following the date of injury, so long as the petition is filed within 20 days following the first hearing at which evidence is received regarding the reason for which joinder is sought. Instead, the statute of limitations applies only to the underlying claim petition.

Any questions regarding this case can be directed to Justin D. Beck, Esquire, at JBeck@tthlaw.com or (412)-926-1441.

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SIGNIFICANT NEW JERSEY CASE SUMMARY

Samuel Martin, III v. Newark Public Schools

A-0338-18T4 (N.J. Super. Ct. App. Div. 2019)

By: Deborah B. Richman, Esquire

The Superior Court, Appellate Division, has approved for publication the first decision in the workers’ compensation arena as to the prescription of opioid medications.

Background: In May, 2011, Samuel Martin, III, Petitioner, injured his back in a work-related motor vehicle accident. In November, 2014, he received a 15% partial disability award. He had been treating for the work-related injury with Dr. Patricio Grob from 2011 to September, 2017, receiving prescriptions for Percocet. Dr. Grob felt that the Percocet was poorly controlling Petitioner’s pain and recommended surgery, which Petitioner declined due to an unrelated condition. In September, 2017, Dr. Grob provided one final prescription for Percocet and discharged Petitioner. Petitioner went to see Dr. Harris Bram, a pain management physician, for a one-time evaluation. Dr. Bram opined that ongoing use of Percocet would be reasonable for Petitioner. Based upon the one-time evaluation of Dr. Bram, Petitioner filed a Motion based upon Respondent’s refusal to pay for Percocet prescriptions after September, 2017. Following testimony from Petitioner, Dr. Grob, and Dr. Bram, the Judge of Workers’ Compensation denied Petitioner’s Motion seeking reimbursement for the Percocet prescriptions, finding that Petitioner failed to prove that continued treatment with opioid medications would reduce his pain or permit him to function better. Petitioner appealed, claiming that the Judge misapplied the standard governing application for palliative care.

Legal Analysis: The Act requires employers to provide treatment to an injured employee that is necessary to cure and relieve the employee of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible. N.J.S.A. 34:15-15. The treatment is compensable if competent medical testimony shows that it is reasonably necessary to cure or relieve the effects of the injury. A petitioner must show that the treatment will probably relieve his symptoms and thereby improve his ability to function. A mere showing that the employee would benefit from the requested treatment is not enough; it must be shown by sufficient, competent evidence to be reasonable and necessary to cure and relieve.

Here, the Judge found Dr. Grob’s testimony credible that continued prescribing of opioid pain medication would not heal Petitioner or relieve his condition. Dr. Bram did not offer any medical evidence that Petitioner’s continued treatment with Percocet would relieve his symptoms; he only testified that continuing treatment with Percocet would be reasonable. Therefore, there was sufficient, credible evidence in the record to support the Judge’s determination that further treatment with opioid medication would not cure or relieve Petitioner’s injury.

Takeaway: This case indicates that prescriptions for opioid medications do not have to be authorized indefinitely and can be limited or eliminated when there is no competent medical evidence of improvement of function.

Any questions regarding this case can be directed to Deborah R. Richman, Esquire, at DRichman@tthlaw.com or (215)-564-2928 (x8502).