April 2008 Email Newsletter
The BSH Email Newsletter
Job Retraining
Utilization Review
Similar Treatment Not Necessarily Barred by UR
A Vehicle MAY be an "Orthopedic Appliance"
Upcoming Seminars
The BSH Email Newsletter
The Blaufeld Schiller & Holmes, LLP Email Newsletter is our effort to better educate our union friends and clients about Workers’ Compensation and Social Security Disability issues. Each newsletter will include articles about a specific aspect of workers’ compensation or social security, as well as information on recent court decisions. The newsletter will also list upcoming seminars and dates when our attorneys will be in your area for consultation. Please note that if you, or one of your members, need to speak with our attorneys, we are always on hand at (800) 343-9384. Call anytime, as we would be more than happy to assist you. Local appointments are available.
Job Retraining
When an employee is injured, and unable to return to work with his/her employer at some level of duty, it seems that job retraining would be appropriate. Job retraining would assist the injured employee in finding new employment, and lessen the "burden" on the employer and its workers’ compensation carrier. However, under the current Workers’ Compensation Act in Pennsylvania, job retraining is not something for which the time of injury employer is responsible, and there is no way to request it as a remedy under the Workers’ Compensation Act.
Why is this the case? Pennsylvania is a "wage loss" state, which means that we measure "disability" not by what the injured employee’s medical condition is, or by the restrictions or limitations that remain, but by the effect of that condition and those restrictions on that employee’s ability to earn wages. That is why, if an employee returns to work after an injury and earns the same amount as the pre-injury average weekly wage, that employee is not considered to be "disabled," even if he/she goes the chiropractor after work every day. "Disability" means unable to earn one’s pre-injury average weekly wage under Pennsylvania’s law.
Accepting this as the law, it would seem to make sense for employers or workers’ compensation carriers to offer to pay for retraining or education so that a return to work can occur. However, the reason this is not done is because of the COST the insurance carriers would bear. If an insurance carrier were to pay for retraining, they would pay not only for the cost of the schooling, for example, but also workers’ compensation total disability benefits during the period that the employee went to school. From the carrier’s perspective, that could more than double the "cost" of the case to the carrier, third party administrator, or self-insured employer. In many cases, the "benefit" would not be to the employer, as the injured worker might put that training to use for another employer, not the company that sponsored it.
Also, employers/carriers/third party administrators have other options available to them that can result in the same outcome-stopping or cutting down on an injured worker’s compensation-without the "expense" of retraining or education. Under Act 57, a Labor Market Survey can be performed. This survey outlines jobs that would be "available" to the injured worker based on the restrictions and limitations due to the work injury, along with the wages that those jobs would pay. A Judge can then decide whether any of those jobs are truly available as the law requires-open to that worker and within restrictions and limitations found to be appropriate-and cut the employee’s benefits EVEN IF THE EMPLOYEE NEVER GOES TO WORK in any of the jobs. Unfortunately, employers/carriers/ administrators can "save" money without doing what is best for injured workers.
Please understand that injured workers can return to school or get retraining, and the Act will admonish employers/carriers/administrators who try to interfere with that schedule. However, the law does not at this time require that any aid or assistance be given by the employers/carriers/administrators for that purpose. "Non-interference" clearly is not the same as active assistance, but there is nothing an attorney can do to "force" an employer to play an active role in retraining injured workers.
Utilization Review
Under the Workers’ Compensation Act, injured workers who have an accepted work-related injury are entitled to the payment of all medical treatment that is "reasonable, necessary and causally related" to that injury. If the carrier questions the relationship of the treatment to the work injury, the carrier can deny the bill on the basis of "no causal relationship to the injury." However, if the carrier knows that the injured part being treated was accepted as a part of the work injury, they can still question the treatment being provided on the basis of whether it is "reasonable" or "necessary" for the injury sustained. In order to question bills under that format, the compensation carrier must file a Utilization Review Request with the Bureau of Workers’ Compensation in Harrisburg.
Utilization Review was added to the Workers’ Comp Act in 1993. It gave carriers a way to request permission to stop paying bills even though the injury is still compensable, and without the carrier having any medical evidence to show that the treatment is no longer needed. The initial Request triggers the assignment of the UR to a Reviewing Organization. That Organization assigns the case to a provider of the same type as the provider whose treatment is being reviewed-surgeons review surgeons, chiropractors review chiropractors, etc. The reviewer requests the treating provider’s records, and usually has a telephone conversation with the provider to discuss the treatment (providing the treating provider complies with the UR). The injured worker can also submit a statement in support of the treatment. Once this is completed, the Reviewing Organization issues a decision about the treatment, determining whether it is "reasonable and necessary" or not. An appeal from that decision is available to the party that loses, and the case is then heard by a Workers’ Compensation Judge.
It is essential to know that, once a UR has been requested, the comp carrier no longer has to pay the bills under review until the decision is made. If the comp carrier wins, the medical bills never have to be paid! As a practical matter to the injured worker, this means that during the UR, treatment of benefit to him/her may stop, because many providers will not continue treating the injured worker if the bills are not being paid. Some providers will even request that the injured worker start paying the treatment bills. The injured worker does not have to pay, but that also means that the treatment will stop until after the UR is decided. Private insurance carriers will not cover the treatment in most cases because it is a work injury, so the injured worker may have a decision to make about how to get medical care until the UR is over.
Additionally, many providers’ offices are simply not equipped or instructed about UR’s. This works against the injured employee and provider. The records of treatment must be submitted, as requested by the UR and within a specific time period, or the UR will be dismissed and the doctor’s treatment will not be paid. Further, recent case law indicates that, if the records are not submitted, no appeal of the UR can be made to a Workers’ Compensation Judge. Providers need to take an active role in assisting injured workers when UR’s are filed, but the injured worker cannot be afraid to speak up and talk to the provider about the importance of the treatment, and the need for the doctor to cooperate timely with the UR.
Injured workers also need to understand the importance of an attorney who understands Utilization Reviews. That attorney can work with the provider to get the information presented as required by the Act. If the UR is not favorable to the injured worker, the attorney is then prepared to move forward on an appeal and try to convince a Judge that the treatment is indeed reasonable and necessary. An injured worker need not stand alone when his/her treatment is questioned. Knowing what can be done and what steps to take is essential.
Similar Treatment Not Necessarily Barred by UR
Employer May Be Subject to Penalties if it Fails to Pay for Treatment (Which Was Previously the Subject of a UR Petition) By a Different Provider.
Facts: In Schenck v. WCAB (Ford Electronics), the claimant resolved her wage loss by Compromise and Release, and the employer remained responsible for her work-injury-related medical treatment. After the C&R, the employee’s medical treatment with an orthopedic physician, Dr. Zaslow, was subject to Utilization Review. The doctor was prescribing medication and wrist splints for Ms. Schenck’s tenosynovitis, and was seeing the patient on a monthly basis. The Reviewer found the treatment unreasonable and unnecessary, and the injured worker appealed. That Petition was resolved by Stipulation, where it was agreed that Ms. Schenck could continue her treatment with Dr. Zaslow for monthly examinations only through July 1997, but that any treatment or tests other than the physical examination had to be pre-approved by the insurance carrier. In all other respects, the UR was adopted by the parties. Seven years later, in 2004, Ms. Schenck sought treatment at the same facility. Dr. Zaslow had moved on, and Ms. Schenck undertook treatment with Dr. Yarus, a different physician, at that same address. The defendant refused to pay for the treatment based on the prior Utilization Review decision, and the employee filed a Penalty Petition.
Initial Ruling: The Workers’ Compensation Judge denied the Penalty Petition finding that the treatment rendered by the new physician was the same as that which had been the subject of the Utilization Review. The Judge specifically stated that it was not the fact that it was a doctor at the same facility that led to this decision, but rather that "the same or similar treatment" which had previously been found not reasonable and unnecessary was at issue.
Appeal Board Ruling: The Board affirmed the Judge’s denial of the Penalty Petition, finding that the prior Stipulation justified the employer’s refusal to pay the bills, noting further that both the prior and current doctor were orthopedic doctors and that the treatment-office visits-was essentially the same as the prior treatment. The Board further found that "to require [defendant] to pay for treatment previously determined to be unreasonable and unnecessary, or to seek additional utilization review simply because Claimant switched doctors, would be unduly burdensome…."
Court Rationale: The Commonwealth Court reversed the Board’s decision. The Court found that the Act prohibits the use of a Utilization Review of one provider’s treatment to review treatment rendered by all providers. In this case, the Stipulation the parties had entered into at the time of the settlement left Ms. Schenck’s employer responsible for reasonable, necessary and causally related medical treatment. The UR that was filed resulted in a determination that treatment by one specific provider, Dr. Zaslow, was not reasonable and necessary. Then, seven years later, the claimant sought similar treatment, but with Dr. Yarus. The Court explained that the employer, rather than questioning the bills through the appropriate process, simply refused to pay them. The Court held that the proper course is to file a UR request to review the reasonableness and the necessity of this new treatment with Dr. Yarus.
The Court discussed Bucks County Community College v. WCAB (Nemes, Jr.), a case decided by the Commonwealth Court in 2007. In that case, the employer filed a UR naming a specific physician (Dr. Files) in a specific practice as well as "all other providers under the same license & specialty" on its UR Request. The reviewer looked at the records from that practice, and found the treatment with another doctor in that practice (Dr. Mercora) was reasonable and necessary in part, never mentioning the doctor named in the UR Request. The Commonwealth Court found that the UR report was invalid, because it did not discuss Dr. Files’ treatment and he was the doctor who was actually listed on the Utilization Review Request. The Court pointed specifically to the language of the Regulations which states that the provider under review is to be the provider that gave the treatment which is the subject of the UR Request. The Commonwealth Court held in Bucks County that, pursuant to this unambiguous language of the Regulation, a UR review cannot include treatment of all providers regardless of which provider was identified.
Relying on Bucks County, the Court held that the parties had stipulated that the insurance carrier had agreed to remain responsible for reasonable, necessary and causally related medical treatment when the case was settled. The fact that Dr. Zaslow’s treatment was not considered to be reasonable and necessary seven years prior did not mean that this treatment is forever barred. The Court held that the defendant did violate the Act by refusing to pay for the more recent treatment without seeking a UR, and therefore, the case was remanded to the Judge for a determination of penalties.
The holding is this case is helpful to injured workers who wish to obtain treatment that may have been reviewed in the past. However, it is important not to consider this holding to be broader than it actually is. We always caution injured workers that, when a UR is granted, they should not just go down the street and get the same type of treatment from someone else. In this case, the injured worker received the same type of treatment she had undertaken seven years in the past. That appears to be a strong reason why the Court decided as it did. Also, the UR Petition originally filed with respect to the treatment appeared to name only Dr. Zaslow, and not to mention any and all other providers or even providers of like specialty. That also may have made a difference to the Court. The language of the decision appears to hold the employer/carrier to specificity in seeking review of treatment, and any individual whose treatment is denied should be careful about seeking "the same or similar treatment" simply from a different provider without talking to an attorney who is familiar with the Workers’ Compensation Act and its Regulations.
A Vehicle MAY be an "Orthopedic Appliance"
Can an Injured Employee Require the Carrier to Buy Him a Van and Retrofit it to Accommodate His Disability? Griffiths Revisited.
In December 2004, we discussed the Griffiths case, and the decision of the Commonwealth Court, in our newsletter. The Supreme Court has reversed the Commonwealth Court’s decision, so it is worth discussing again.
Facts: In Griffiths v. WCAB (Seven Star Farms, Inc), the claimant was rendered a quadriplegic as a result of his work injury. The insurance carrier failed to make payment for the rental and subsequent purchase of a van that included a retrofit to make it wheelchair accessible, and so a Penalty Petition was filed. The claimant was actually reimbursed eighty percent of the cost, but argued that the carrier was responsible for the entirety of the cost under the provisions of the Act which require reimbursement to the claimant in full and not at any re-priced amounts for out-of-pocket medical expenses.
Initial Ruling: The Workers’ Compensation Judge granted the Penalty Petition and ordered the employer to pay the full cost of the van, the retrofitting to make it wheelchair accessible and the cost of the rental of the van. The WCJ also awarded interest on the unpaid charges and counsel fees.
Appeal Board Ruling: The Board reversed the Judge’s award of payment in full for the van itself, but did require the compensation carrier to pay the full amount of the retrofitting to make it wheelchair accessible.
Court Rationale: The Commonwealth Court affirmed the Board’s decision that the van is not an "orthopedic appliance" under the Act, but affirmed that retrofitting of a vehicle is considered to be an "orthopedic appliance" under Section 306(f.1) of the Act, which relates to medical expenses. The Court cited to Petrilla v. WCAB (People’s Natural Gas), long-standing precedent that held that the purchase price of a vehicle is not reimbursable as a medical expense. The Court reversed the Judge and Board that Mr. Griffiths was to be reimbursed in full for the payments for retrofitting that were made. Rather, the Court held that, under the Act, the eighty (80%) percent reimbursement for payment of an "orthopedic appliance" contained in the Act is the sum total to which the claimant was entitled, even though that "cap" seems, under the law, only to extend to actual health care providers. Two Judges dissented, arguing that the cost containment provisions of the Act which cap such payments to health care providers do not apply, because said "providers" did not perform the services of retrofitting.
THE SUPREME COURT DECISION: In a decision issued on March 19, 2008, the Supreme Court remanded the decision of the Commonwealth Court to the WCJ for further consideration consistent with the issues outlined in its opinion.
The Court considered the case to present two questions, whether the van itself was an orthopedic appliance and whether the price of the van was subject to the cost containment provisions of the Act, which do not require that insurers pay "full price" for items utilized by injured workers for medical treatment.
In considering whether the van itself is an orthopedic device, the quadriplegic worker argued that the wheelchair lift, which is admitted and agreed to be an orthopedic device, is useless to him without a van and that failure to allow for payment for the van means that only those quadriplegic claimants wealthy enough to afford a van on their own will be able to have it made wheelchair accessible. The employer accepted that it was responsible for retrofitting the van or making a home handicapped accessible, but argued that the Legislature, not the Court, should make the determination as to whether an expenditure such as a van was to be considered an orthopedic appliance under the Act.
The Court noted that the issues presented were issues of first impression, which means that the Supreme Court had not been asked to address them in the past. The Court looked to decisions of other jurisdictions to see how other states’ Courts had interpreted statutes there regarding medical treatment and orthopedic appliances. Some Courts required payment for the van in its entirety, on the basis that the injured employee would not have required the van other than due to the fact of the injury and the need for the wheelchair, while other Courts ruled that the individuals had owned their own vehicle for transportation in the past (car, truck, etc.) and that the insurance carrier should only have to pay the difference between the cost of that type of transportation and the van as retrofitted. Other Courts did not require payment at all.
After reviewing these other cases, the Court discussed the statute itself, and noted that the Workers’ Compensation Act in Pennsylvania is "remedial in nature and intended to benefit the injured worker" and that the interpretation of it must be to that effect. The Court recognized that, "[d]epending upon the circumstances of the individual, a van (indeed any vehicle) could be viewed as a necessity, a luxury or something in between." The Court considered it critical that the injured worker in Griffiths was not getting the van as a "lifestyle choice," but to directly address his lack of mobility that was caused by his work injury- the van "is an appliance that addresses and is directly responsive to the permanent orthopedic issue brought on by" that injury. The Court held that the Commonwealth Court’s "absolutist view" that a van could never be an orthopedic device was not appropriate, and therefore, found that a modified van may qualify as an orthopedic appliance.
The Court then indicated that this could not be a "windfall" to the injured worker. Thus, circumstances would be considered-did the injured worker already own a van that could be retrofitted? Where an individual does not have a vehicle adequate to transport himself and his wheelchair, as in Griffiths, the Court held that it is necessary for the case to be remanded for a determination as to those circumstances, and whether the employer was required to fund the purchase of the van.
With respect to the cost containment provisions of the Act, that is, whether the employer was only responsible to pay eighty (80%) percent rather than the whole cost, the Court focused on the fact that the statute focuses on "providers" who are not to be paid more than 80% of the charge most often made for the service at issue. "Providers" are defined by the Act as those offering health care services. The Court noted that since an automobile dealer is not a provider under the Act, the dealership is not bound by the 80% reimbursement, nor is the claimant only to be compensated for up to 80%.
In his dissenting opinion, Justice Eakin, while sympathizing with the claimant, reiterated that a Ford Windstar is not an "orthopedic appliance." While the Justice believed that the pieces of equipment required to retrofit a van could be "shoehorned" into that definition, "the van itself simply cannot be made to fit any reasonable understanding of the term." Justice Eakin considered the majority’s opinion to be "sweeping," with no means of knowing the financial and collateral consequences of this expansion of obligation. Justice Eakin agreed with the employer’s position that the Legislature, not the Court, should make this change.
This case should mean a new attitude toward the types of expenditures required for injured workers to accommodate themselves to the activities of daily living, such as travel. However, the problem with cases such as this is that often the lower Courts then begin to back off and erode away the holding, or find differing interpretations. However, this does support determinations that injured workers whose severe injuries require such an accommodation will be compensated.
Upcoming Seminars
| What | When | Where |
|---|---|---|
| Workers’ Compensation Seminar | April 15, 2008 at 10:15am | UFCW Local 1 Buffalo, NY |
| Workers’ Compensation Seminar | April 21, 2008 at 7:00pm | AFSCME Local 2100 Erie, PA |
| Workers’ Compensation Seminar | May 1, 2008 at 7:00pm | Butler United Way Union Counselors Butler, PA |
Individual Consultations available at any time, in your local area, upon request. Call (800) 343-9384 for further information.
FREE Seminars for your union or group are also available.
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