eNotes: Workers’ Compensation – June 2019

Congratulations to Thomas, Thomas & Hafer Workers’ Compensation Attorneys who were named 2019 Super Lawyers and Rising Stars

2019 Pennsylvania Super Lawyers:
Edward H. Jordan, Jr.
R. Burke McLemore, Jr.
Paul A. Pauciulo
Mark J. Powell

2019 Pennsylvania Rising Stars:
A. Catherine McLaughlin
Christopher L. Scott

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations. Click here to learn more about the rating system.

TT&H Speaking Engagements
Justin Beck, Esq. will be presenting at the 18th Annual Pennsylvania Workers’ Compensation Conference in Hershey on Tuesday, June 4, 2019 at 8:30-9:45 a.m. in the session entitled, “Effective Medical Case Management: Being Ethical,” which will focus on the legal and professional ethics of disability management with a particular emphasis on the role of Nurse Case Managers.

Notable Developments in Pennsylvania Workers’ Compensation

Supreme Court of Pennsylvania to Hear Case Involving Retroactivity of Protz

In 2017, the Supreme Court of Pennsylvania upended the Impairment Rating Evaluation mechanism of the Workers’ Compensation Act, invalidating the entirety of Section 306(a.2). Since that time, numerous questions have remained pertaining to the precise retroactive effects of the decision. Now, the Court is poised to address, for the first time, at least some aspects of this critical issue.

On May 14, 2019, the Supreme Court of Pennsylvania issued an Order in the matter of Dana Holding Corp. v. WCAB (Smuck), granting the employer’s Petition for Allowance of Appeal, in part. The issues to be addressed by the Supreme Court include:

(1) Whether the Commonwealth Court erred in applying the Protz standard retroactive to the date of the claimant’s IRE, instead of as of June 20, 2017 (the date Protz was handed down); and

(2) Whether the Commonwealth Court’s failure to grant the employer credit for the three-year period between the date of an IRE evaluation and the date of the Protz decision violated the employer’s constitutional rights?

Thomas, Thomas & Hafer will continue to monitor and assess the developments stemming from Protz. Our attorneys stand ready to address any and all questions regarding specific claims which may potentially be impacted by this change in the law.

SIGNIFICANT PENNSYLVANIA CASE SUMMARIES

Sadler v. WCAB (Philadelphia Coca Cola), No. 328 C.D. 2018 (May 22, 2019)

Pennsylvania Commonwealth Court, Published

By: Sean B. Epstein, Esquire

In a reported decision, the Commonwealth Court held that a claimant’s benefits should not be suspended for the period of time he spent in pretrial incarceration even if that time was ultimately credited following the guilty plea.

Background: Claimant was injured on July 2, 2012, and began receiving workers’ compensation benefits. On May 12, 2015, Employer filed a Suspension Petition claiming that Claimant’s benefits should be suspended because he spent 525 days in jail prior to his conviction and because he was credited with having served that time upon his conviction on January 22, 2015, Claimant should not be unjustly enriched and his benefits should be adjusted accordingly.

The Workers’ Compensation Judge concluded that Employer was entitled to a reimbursement for benefits paid to Claimant during the 525 days he was incarcerated. The Judge specifically ordered Employer not be given a future credit against benefits paid to Claimant, but that Employer petition the Supersedeas Fund for reimbursement. The Workers’ Compensation Appeal Board modified the Judge’s decision by allowing Employer to seek reimbursement for total disability compensation paid to Claimant while he was incarcerated via a credit against future disability payments to Claimant rather than requiring the employer to seek reimbursement from the Supersedeas Fund. An appeal followed to the Commonwealth Court.

Holding: The Commonwealth Court in a 2 to 1 decision reversed and found that Employer was not entitled to a reimbursement for benefits paid to Claimant during the time that he was incarcerated. The Commonwealth Court noted that at the time of his incarceration, Claimant was charged with an unspecified crime and was incarcerated for 525 days pre-trial because he was unable to post bail. Claimant ultimately pled guilty and was sentenced to 525 days as “time served.” In denying Employer’s entitlement to reimbursement, the Court noted that Section 306(a.1) of the Workers’ Compensation Act holds that an employer is not required to pay benefits “for any period during which the employee is incarcerated after a conviction.” Coca Cola had argued that because Claimant was sentenced to time served after he plead guilty, the period he spent in jail before trial counts as an incarceration after a conviction. The Commonwealth Court disagreed and concluded that Claimant was not incarcerated or removed from the work force after his conviction. Rather, the Court noted that, “prior to his conviction, claimant was incarcerated because of his inability to make bail, not because of a conviction for criminal conduct. To suspend claimant’s benefits during a period that he is not incarcerated after a conviction, and during which his loss of earning power is caused by his work injury, essentially punishes him because he was unable to meet bail. This is not consistent with the humanitarian purpose of the Act and is not consistent with the plain language of Section 306(a.1).” The Court essentially concluded that to allow the credit would add words to Section 306(a.1) including credit for time served. The Court concluded that they were not permitted under the guise of statutory interpretation to add words to a statute that the general assembly had omitted. Thus the Court concluded that the Board erred to the extent that it affirmed the Judge’s decision granting the Suspension Petition because Claimant was not “incarcerated after a conviction.”

Take-aways: The clear and unequivocal take-away from this case is that employers are not entitled to a suspension of benefits for incarceration which occurs prior to either a conviction or a guilty plea. Only time served subsequent to the guilty plea or conviction will be allowable for purposes of a credit. It should be noted, however, that this was a 2 to 1 decision. As such, it is possible that this case could be reviewed by the Supreme Court for a subsequent en banc panel of the Commonwealth Court.

Questions about this case can be directed to Sean B. Epstein, Esquire at 412-926-1451 or sepstein@tthlaw.com

 

Daniel Fanning v. Workers’ Compensation Appeal Board (Lower Merion School District and John Carr Electric and School District Insurance Consortium and Harleysville Insurance Company), No. 992 C.D. 2018 (May 2, 2019)

Pennsylvania Commonwealth Court, Unpublished

By: Justin D. Beck, Esquire

The Commonwealth Court has held that the doctrines of res judicata and collateral estoppel do not preclude the serial filing of Utilization Reviews so long as sufficient time has passed and some change in a claimant’s condition has occurred. In so holding, the Court placed particular emphasis on the need to regularly review the reasonableness and necessity of long-term opioid regimens.

Background: In Fanning, Claimant injured his back in both 1987 and 2001. The injuries were adjudicated to be indivisible, and thus, two separate employers were deemed liable. A 2011 Utilization Review proceeding addressed the reasonableness and necessity of Claimant’s ongoing use of narcotic pain medication on and after June 14, 2010; a 2011 WCJ Decision ultimately found the same to be reasonable and necessary. A subsequent 2014 proceeding addressed whether Claimant’s benefits were to be suspended for refusal to undergo reasonable medical treatment in the form of a detoxification program; the corresponding Petitions to Suspend were denied.

On February 11, 2015, Claimant’s later-in-time employer filed a Utilization Review Request pertaining to the treatment of one Dr. Koenigsberg for treatment provided on December 29, 2014. The subsequent UR Determination was mailed on April 17, 2015, which found this one date of service at issue reasonable and necessary. Thereafter, on December 18, 2015, the same employer filed a second Utilization Review Request for treatment rendered by Dr. Koenigsberg, seeking review of treatment rendered on and after October 14, 2015. That UR Determination, dated February 19, 2016, found that various narcotics, in addition to Valium, were unreasonable and unnecessary.

Claimant filed a Petition for Review of UR, arguing that the most recent Determination was barred by res judicata and collateral estoppel, in consideration of the prior 2011 and 2014 WCJ Decisions, as well as the 2015 UR Determination. Denying Claimant’s Petition for Review of UR, the WCJ credited the UR Determination, and found that Claimant’s medications had changed since the prior WCJ Decisions, thereby evidencing a change in condition sufficient to overcome any res judicata or collateral estoppel arguments.

Claimant appealed to the WCAB, which affirmed. The Commonwealth Court subsequently affirmed the Board.

Legal Analysis: The Commonwealth Court held that the employers had established that Claimant’s condition had changed since the prior WCJ Decisions and that sufficient time had passed to satisfy the Court’s concern that allowing the last-in-time UR Determination would not vitiate the concern of serial URs. The Court noted that the 2011 WCJ Decision had credited a physician who cautioned that the medications at issue would no longer be reasonable and necessary after completion of a medically-supervised detoxification. Further, the 2011 WCJ Decision had addressed a treatment period more than five years prior to that in the latest WCJ Decision. For these reasons, the Court determined that the issue addressed by the latest WCJ Decision and the 2011 WCJ Decision were not identical and thus, the 2011 WCJ Decision did not bar the latest.

The Court further dismissed Claimant’s argument that the 2014 WCJ Decision acted as a bar to the latest WCJ Decision. In this regard, the 2014 WCJ Decision had only considered evidence related to the issue of whether a detoxification program would benefit Claimant. Thus, the WCJ only addressed the narrow inquiry of whether Claimant had forfeited his right to benefits for refusal to undergo reasonable medical treatment.

Notably, the Court emphasized that, while precedent did not sanction the use of serial URs, it was “cognizant of the concerns and dangers of the long term use of opioids.” The Court stated, “given the change in the way these medications are being used in the medical community … it is not unreasonable for an employer to question the ongoing, long term prescription of opioids to claimants.”

Takeaway: Although the Commonwealth Court can hardly be said to have sanctioned serial filings of URs, Fanning is remarkable to the extent that the Court seemingly condoned the employer’s multiple UR Requests in consideration of the widespread concern surrounding opioids throughout the medical community.

For this reason, claims involving longtime narcotic regimens should be regularly revisited as potential candidates for repeat Utilizations Reviews, notwithstanding the fact that prior proceedings may have found the prescriptions to be reasonable and necessary.

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

 

New York Marine and General Insurance Company and Cannon Cochran Management Services, Inc. v. Bureau of Workers’ Compensation Medical Fee Review Hearing Office (Lam), No. 860 C.D. 2018 (May 2, 2019)

Pennsylvania Commonwealth Court, Unpublished

By: Justin D. Beck, Esquire

The Commonwealth Court has held that a carrier must challenge its liability for non-FDA-approved treatment via the Utilization Review process rather than Fee Review. Otherwise, where liability is presumed, a carrier must determine the amount of proper payment by undertaking either the downcoding process or the usual and customary charge method.

Background: In Lam, Provider treated Claimant for work-related injuries with ultrasound-guided lumbar injections which were not FDA-approved. Each invoice was submitted by Provider to Insurer on HCFAs, included a billing code for “unlisted procedure of the nervous system,” and were accompanied by treatment notes explaining the type of needle used and medications injected. Each injection carried a charge of approximately $2,000.

Insurer denied payment for the treatment and Provider filed Applications for Fee Review. The Fee Review Office denied the Applications on the basis that the workers’ compensation fee calculation for a treatment with the billing code used by Provider amounted to $0.00.

Provider thereafter filed Requests, seeking a de novo hearing. Ultimately, the Hearing Officer found that Insurer had not met its burden of proving that it properly reimbursed the Provider for the treatment rendered to Claimant. The Hearing Officer concluded that, had Insurer believed the billing codes to be inappropriate, it should have downcoded and proposed a better procedure code.

Insurer appealed, and the Commonwealth Court affirmed the Hearing Officer.

Legal Analysis: The Commonwealth Court held that, while the FDA approval of a particular treatment may go to the issue of liability, the same should be raised within the framework of the Utilization Review process. As Insurer had not sought Utilization Review, it could not raise such issue before the Hearing Officer.

The Court further held that, where there exists no designated Medicare billing code or payment mechanism for a particular treatment, an insurer must either downcode the treatment or pay for the treatment using the usual and customary charge method set forth in the Act. Specifically, Section 306(f.1)(3)(viii) of the Act provides that, if a carrier believes a billing code to not accurately reflect a treatment provided, the carrier may downcode or change the provider’s bill if: (1) the change is consistent with Medicare’s guidelines; (2) the insurer has sufficient information to do so; and (3) the insurer consults with the provider regarding the proposed changes. Moreover, where no downcoding is possible, the Act holds that the charge shall be 80% of the usual and customary charge for the treatment, or the actual charge, whichever is lower.

As Insurer had failed to engage in such a downcoding process or usual and customary analysis, the Court found that it had improperly denied Provider payment. The Court stated, “… Insurer could not simply deny payment based on a lack of Medicare mechanism for payment, but had to determine the amount of proper payment using either the downcoding process or the usual and customary charge method.” Thus, the Order of the Hearing Officer was affirmed, and Insurer was directed to pay the Provider for the treatment.

Takeaway: Where neither the causal connection nor reasonableness and necessity of a particular treatment has been challenged, a carrier will be presumed liable for payment of the same in a fee review proceeding. In consideration of this presumed liability, a provider’s inaccurate billing codes may not be relied upon as a legitimate basis for denial of payment. Instead, a carrier must engage in the appropriate downcoding process or “usual and customary” charge method so as to ascertain the proper payment amount.

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