Employer Now Required to
Pre-Authorize Medical Treatment or File Prospective Utilization Review
Until now, when requests for preauthorization of medical treatment were
made, employers were free to advise the health care provider that
preauthorization is not required. The
provider was required to provide the treatment and then forward the bills and
reports for review and consideration.
Only then would the insurer have to review the treatment and determine
whether to deny it as unrelated, file a Utilization Review Request to challenge
the reasonableness and necessity of the treatment, or adjust and place the
bills in line for payment.
McLaughlin v. WCAB (St. Francis Country House), 2002 WL 31115042 (Pa. Cmwlth. 2002) changes
that procedure completely. The
Commonwealth Court has now held that where an Employer’s own action effectively
prevents a Claimant from receiving treatment, that action constitutes a
violation of Employer’s ongoing obligation to provide reasonable and necessary
surgical and medical services related to the work injury. As such, it constitutes a violation of the
Act for which penalties are properly assessed.
The Court indicated that most hospitals, in non-emergency scenarios, will
not perform surgical procedures without preauthorization. Accordingly, an Employer’s refusal to
preauthorize effectively prevents the Claimant from receiving the requested
treatment.
This holding flies in the face of the language of the Act, which clearly
indicates that an Employer’s obligation with regard to medical treatment begins
when both the bills and the required report are received. The Commonwealth Court regarded this
Employer’s reliance on the Act as “disingenuous.” According to our telephone conference with employer’s counsel,
the employer is asking the Supreme Court to take an appeal on this case.
In the interim, procedures must change.
When a health care provider requests preauthorization, we recommend that
the request be confirmed in writing identifying the specific procedure
requested, and then be quickly approved or submitted for prospective Utilization
Review. The Court gave no deadlines,
but we recommend that the approval or submission to Utilization Review be
completed within 30 days of the request for pre-authorization.
Termination Of Benefits –
Court OKs
“Full Recovery” in Spite of Surgical Fusion of Claimant’s Spine at L4-5
Claimant’s Level of
Function
is the Key
The claimant in a Claim Petition presented evidence that he suffered a
lower back injury, necessitating a surgical lumbar fusion at L4-5. The claimant’s own medical expert testified,
however, that the surgery had solved claimant’s low back problem, and that
claimant had no restrictions relating to his work injury.
Since the claimant’s spine was now “completely unaffected by the [injury
and surgical fusion],” and the surgery “has no impact on [the Claimant’s]
ability to function,” the Commonwealth Court held that the claimant was fully
recovered from the work injury, as he was “functionally the same as before the
injury.”
Michael H Wagner v. WCAB (O’Malley Wood Products Inc.), 2002 WL 1941358 (Pa. Cmwlth. 2002)
PA Supreme Court
Allows Illegal Alien to Collect WC Benefits
Employer Can Suspend
Benefits
On November 6, the Pennsylvania Supreme Court refused to deny illegal
aliens the right to workers’ compensation benefits. The Court reasoned that the Act itself does not speak to the
illegal alien issue, and for the Court to create a public policy exception
would be an “exercise in judicial legislation,” which the Court was unwilling
to perform.
The Court did have to agree with the employer, however, that the
claimant’s wage loss was not related to his work-related injury, but rather by
his immigration status. The Court
remanded the case to the Trial Judge for a reasoned decision by the Judge as to
why the employer’s request for suspension was denied. Although the Court indicated that the usual evidence of job
availability (necessary for a suspension in a pre-1996 injury case) would not
be necessary here, the Court did not state what evidence would be necessary for
the Judge to suspend the claimant’s wage benefits.
Reinforced Earth Co. v. WCAB (Astudillo), 2002 WL 31476901 (Pa. 2002)
Employer can
Force WC Claimant to Undergo MRI and Bone Scan
MRI and Bone Scan
Determined to be “Non-Invasive”
At times, an IME physician will request an MRI or bone scan to help determine diagnosis and causation. WC claimants would often refuse such testing, arguing that the tests were “invasive, ” and not part of a “physical examination” as permitted under the Act.
In that such tests aid physicians in determining medical information beyond that yielded by “mere physical touch,” the Commonwealth Court determined that such “non-invasive” diagnostic tests fall within the meaning of “physical examination” under the Act. The Court accordingly upheld the Judge’s Decision compelling the claimant to undergo a triphasic bone scan and right shoulder MRI.
Coleman v. WCAB (Indiana Hospital and PHICO Services), 2002 WL 31235550 (Pa. Cmwlth. 2002).
Calculation of AWW – Inconsistent Earnings, even Periods
of Disability, Can be Included in AWW
“Ongoing Employment
Relationship” is the Test
A pair of Commonwealth Court cases recently addressed the situation where a claimant had not been actually earning wages during some of the 13-week periods before the injury. The claimant in each of those cases argued that those should not be counted as “completed periods” for purposes of calculating the Average Weekly Wage (“AWW”).
The first case dealt with a claimant who did not earn wages continuously for the 52 weeks before the date of injury. In David Zerby v. WCAB (Reading Anthracite Company), 2002 WL 1900329 (Pa. Cmwlth. 2002), the Commonwealth Court noted that the Employer’s Statement of Wages showed that Claimant did earn wages during each of the four thirteen week periods preceding the injury. This, the Court held, is evidence of an “ongoing employment relationship,” under Merkle v. WCAB (Hoffmann Industries), 796 A.2d 1034, 1037-38 (Pa. Cmwlth. 2002).
Accordingly, the AWW was properly calculated by dividing by thirteen the total wages earned in each of the highest three of the last four consecutive periods of thirteen calendar weeks preceding the injury and by averaging the total amounts earned during those three periods. This reduced the claimant’s AWW from $657.93 to $511.43, and the TTD rate from $438.61 to $340.95.
The second case addressed a
situation where the claimant had missed approximately 10 weeks of work due to a
non work-related disability. In Jeffrey Collier v. WCAB, (PRS/ Engles Trucking) 2002 WL 1941368 (Pa.
Cmwlth. 2002), there was no evidence that the claimant quit, that he was fired
or that he had to re-apply or re-interview before returning to work.
The Commonwealth Court accordingly followed the prior decisions in Norton
v. WCAB, 764 A.2d 704 (Pa. Cmwlth. 2000) and Triangle Building Center v.
WCAB (Linch), 746 A.2d 1108 (Pa. 2000), and held that if the relationship
between an Employer and an employee is not permanently severed, the employment
relationship is presumed to continue.
Accordingly, for purposes of calculating the AWW, a 13 week
