It has now been nine months since the Commonwealth Court’s head-spinning Decision in Workers First Pharmacy Services, LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Gallagher Bassett Services), 225 A.3d 613 (Pa. Cmwlth. 2020), decided on January 16 of this year. The Court has not yet clarified its ruling or addressed the problems raised by the decision so that employers are faced with a dilemma as to how to properly deny bills when treatment is not causally related to the work injury.
In Workers First, the Court concluded that the Hearing Office erred in dismissing a pharmacy’s Fee Review Petition as premature where the Employer had denied the bill for a compound cream on the basis it was “inconsistent” with the Claimant’s diagnosis. The Court reasoned that the Employer should have filed a Request for Utilization Review. The Court further explained that stating the diagnosis is inconsistent with the procedure is just another way of stating that the compound cream was not a reasonable or necessary “procedure” for treating Claimant’s “diagnosis”. Pundits argued that the Court conflated the issue of causal relationship with whether treatment is reasonable and necessary.
While we recognize that treatment can be reasonable for one injury while unreasonable for another, Utilization Review is not the proper mechanism to address whether treatment is causally related to the injury. The Bureau regulations specifically state that UROs may not decide the causal relationship between the treatment under review and the employee’s work-related injury.” Medical Cost Containment Regulation, Section 127.406(b)(1). Likewise, the regulations unequivocally state that “if the insurer responds in writing to the Bureau’s notice by denying a causal relationship between the work-related injury and the treatment, the Bureau will not process the employee’s UR Request until the underlying liability is either accepted by the insurer or determined by a Workers Compensation judge.” Section 127.404(4). Indeed, the Supreme Court of Pennsylvania has recognized that the insurer may question liability for a particular treatment because the billed treatment is not related to the accepted work-related injury as described by the NCP. Crozer Chester Med. Ctr. v. Department of Labor & Indus., 610 Pa. 459, 22 A.2d 189 (Pa. 2011).
Unfortunately, in Workers First Pharmacy, the Court failed to grasp this concept noting that defendants may only challenge causal relatedness for a specific treatment by filing a Modification Petition or by requesting Utilization Review. As noted above, Utilization Review cannot address the causal relationship between the injury and the treatment. For example, this firm has recently received a Utilization Review Determination where the only accepted injury was to the right ankle, Utilization Review was requested for treatment of the right wrist and the URO determined such treatment to be reasonable. Clearly, the URO did not consider only the accepted injury or whether treatment to the wrist was reasonable for the ankle injury.
Likewise, the Court’s suggestion of filing a Modification Petition to change the description of injury fails to provide an employer with a satisfactory solution. For example, if claimant sustained a back injury and submitted bills for high blood pressure (which we have all seen), there is no reason that the defendant would want to file a Petition to change the description of the accepted injury. The defendant agrees with the description of injury as listed on the NCP. It is the claimant who would want to expand the injury to include a treatment not related to the injury. Moreover, even if the employer wished to clarify the scope of injury, filing a Petition could change the burden of proof so that it would be contraindicated.
This firm has taken the position that Workers First is inconsistent with the Supreme Court Decision in Crozer as well as longstanding Commonwealth Court precedent holding that an employer is not required to file a Petition before denying liability for medical treatment that is not causally related to the work injury. Cittrich v. WCAB (Laurel Living Center), 688 A.2d 1258 (Pa. Cmwlth. 1997); McDonald Douglas Truck Services, Inc. v. WCAB (Feldman), 655 A.2d 655 (Pa. Cmwlth. 1995); Stonebraker v. WCAB (Seven Springs Farm, Inc.), 641 A.2d 655 (Pa. Cmwlth. 1994); Pitkavish v. WCAB (Pullman Standard), 640 A.2d 494 (Pa. Cmwlth. 1994), litigated by this firm; DeJesus v. WCAB (Friends Hosp.), 623 A.2d 397 (Pa. Cmwlth. 1993); Buczynski v. WCAB (Richardson-Vicks, Inc.), 576 A.2d 421 (Pa. Cmwlth. 1990); and King v. WCAB (Wendell H. Stone Co.), 572 A.2d 845 (Pa. Cmwlth. 1990).
We have also argued that construing Workers First to require that an employer must request Utilization Review if it wishes to deny treatment on a causal relationship basis, would deprive the employer of its due process rights because as referenced above, the Bureau would not process such a Utilization Review if the employer wrote to the Bureau stating that treatment was denied on a causal relationship basis. This argument is very much on trend as the Commonwealth Court has recently issues several decisions changing long standard procedures based upon its perception of due process violations. See Keystone Rx, LLC v. Bureau of Workers’ Comp. Fee Review Hearing Office (CompServices, Inc./AmeriHealth Cas. Servs.), ___ A.3d ___ (Pa. Cmwlth. 2019); and Workers First Pharmacy Services, LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Cincinnati Insurance Co.), 216 A.3d 544 (Pa. Cmwlth. 2019).
To make matters more confusing, the Commonwealth Court recently addressed Workers First in an unreported Decision. Bond Medical Services v. Bureau of Workers’ Compensation Fee Review Hearing Office (Travelers Cas. Ins. Co.), Pa. Cmwlth. No. 233 CD 2019, filed July 31, 2020, 2020 WL 4383659 (Pa. Cmwlth. 2020). In Bond Medical Services, the Fee Review Hearing Office (FHRO) denied the provider’s Application for Fee Review regarding payment of a DME prescribed by a chiropractor and the provider appealed. The Court ordered that the following was to occur on remand: (1) the FHRO is to temporarily stay the proceeding; (2) the carrier, if it wished, is to have 30 days to request UR with regard to the DME and, if it does so, the FHRO is to dismiss the Application as premature; and (3) if no UR is pursued, the carrier is to pay the bills – indeed, if the carrier does not seek UR in 30 days, “the Hearing Office is directed to enter an Order in favor of provider”. Some counsel have taken the position that the Bond case illustrates the Court is revising or backing out of its Workers First reasoning because the Court in Bond equates the employer’s “inconsistent with diagnosis” denial with a “not reasonable and necessary” denial. However, this author views Bond Medical Services as reinforcing Workers First rather than revising or backing out of the Workers First Decision because the employer is instructed to either request Utilization Review or pay for the treatment.
Nonetheless, in this firm’s opinion, we do not recommend requesting Utilization Review in every situation where treatment is denied on a causal relationship basis. Instead, whether Workers First will be upheld in every situation remains an open question. For example, we would not recommend filing Utilization Review in the following circumstances: denial of osteoporosis treatment following a back injury; denial of hand treatment following an ankle injury; and/or denial of psychological treatment following a back injury. With that being said, it is better to review each situation as it arises rather than have a hard and fast rule to always/never request Utilization Review where causation is at question. As always, the attorneys at Thomson, Rhodes & Cowie are available to address your individual cases and concerns.