Pa. Workers’ Compensation Law Update
February 28, 2011
The Pa. Commonwealth Court has now ruled that Utilization Review Petitions, when before a Judge, are “de novo proceedings” , and either party is free to offer evidence beyond that considered in the Utilization Review in meeting their burden of proof. This now allows the parties to admit additional medical evidence to defend or support their respective positions.
The Road Toad, Inc. v. WCAB (McLean), 8 A.3d 922 (Pa.Cmwlth. 2010) Holding: Fact that doctor’s examination of claimant did not take place until after employer filed its petition for review of a Utilization Review determination did not mean that doctor’s opinion was not competent to support employer’s burden of proof to justify a deviation from the recommendation of the UR reviewer.
Claimant sustained a work-related head injury, causing her to lose the use of her right arm, right leg and right eye. After the injury, Employer paid for unskilled home assistance to Claimant eight hours a day, five days a week. Thereafter, Claimant filed a Request for a Utilization Review, seeking an increase in her home assistance to twelve hours a day, seven days a week and referrals to occupational, speech and physical therapy. The URO found the increase in assistance and the referrals were reasonable and necessary.
Employer then filed a Petition for Review of UR Determination. Thereafter, Employer filed a Petition to Review Medical Treatment and/or Billing, which alleged that it was being billed for non-health related services, including housekeeping services. Prior to the first hearing, Employer authorized an increase in Claimant’s care to eight hours a day, seven days a week.
During the litigation, both sides presented medical testimony and the Employer also presented the testimony of several of Claimant’s home assistants who stated that a portion of their time at Claimant’s home was spend doing housekeeping duties. The WCJ accepted Employer’s evidence and found that the referrals were not necessary and that assistance eight hours a day, seven days a week was all that was medically necessary. Also, the WCJ found that the Employer had been billed for non-health care related services, specifically the home assistants’ housekeeping work.
Claimant appealed to the Board, arguing that because Employer’s medical witness did not examine Claimant until after the Petition for Review of UR Determination was filed, the WCJ erred in relying on the doctor’s testimony. The Board agreed and reversed. Claimant argued and the Board agreed that under United States Steel Corp. v. WCAB (Luczki), 887 A.2d 817 (Pa. Cmwlth. 2005), the testimony of Employer’s medical witness should not have been considered by the WCJ.
The Court found this to be an error and a misapplication of Luczki and reversed the Board. In so doing the Court noted that WCJ review of an UR determination is a de novo proceeding in which either party is free to offer evidence beyond that considered in the UR process in meeting their burden of proof. Therefore, the WCJ properly considered Employer’s medical testimony.