As I discussed in my January 31 column, the Pennsylvania Chamber of Commerce Workers’ Compensation Executive Committee has submitted its latest proposal to further limit the rights of injured workers. The proposal outlines five areas where it believes it will “improve the quality of care while curtailing waste and abuse.” The five areas are prescription drugs, the utilization review process, fee scheduling of medical bills, longer periods of managed care and administrative issues. This week, we will look at the changes the Chamber would like to make to the Utilization Review Process.
The Utilization Review is a cumbersome process under the Workers’ Compensation Act whereby the carrier files a request to have an injured worker’s medical treatment reviewed for “reasonableness and necessity.” Once filed, payment to the provider is suspended until a determination is made.
The process starts with filing a Utilization Review Request, naming the doctor they would like to be reviewed. The Bureau of Labor and Industry then assigns an independent reviewer; the parties have no input on who will perform the review. The assigned reviewer is given the provider’s records as well as the records of all treating doctors. The reviewer never meets the injured worker and does not perform a physical exam. Based on medical records alone, the reviewer then makes a determination as to whether he or she believes the treatment at issue is reasonable and necessary for the accepted work injury. The reviewer has the option to parse out exactly what types of treatment they believe to be reasonable and necessary; and which are not. This can and does result in a split decision for the carrier and the injured worker. Once the determination is made, the carrier is only responsible for paying for treatment that is found to be reasonable and necessary.
If either party is unhappy with the result, a Petition to Review a Utilization Review (UR Petition) is filed and assigned to a Workers’ Compensation Judge (WCJ). The WCJ is then assigned with the task of performing a de novo review. Most often, UR Petitions are litigated in conjunction with other petitions; the carrier’s medical expert and the injured worker’s treating doctor can offer their opinions on the treatment. The WCJ has the option of assigning an impartial peer review physician. The WCJ is free to credit the reviewer, the impartial physician or either medical expert. Most frequently, WCJ’s are not inclined to disturb the reviewer’s opinion. In the end, it becomes a lot of paper pushing that allows the carrier to get out of paying for an injured worker’s medical bills.
The Chamber proposes compelling all WCJ’s to assign an impartial physician if the UR Determination does not comport with medical guidelines or if the WCJ does not agree with the UR Determination. So, when would an impartial physician mandatory upon the WCJ? Every time the carrier can find an article in a dusty medical journal supporting that the treatment is “outside of accepted medical guidelines” or when the carrier does not agree with the result of the UR Determination. Or, if we really want to be honest with ourselves: every single time a UR Petition is filed.
Consider this: Once a UR Determination is made, we of course have the opinion of the reviewer. We have the opinion of the defense medical expert. We have the opinion of the treating doctor. So now, the Chamber’s idea is to throw a fourth doctor into the mix? Apparently, three doctors’ opinions aren’t enough; the Chamber wants to throw a fourthcook into the kitchen. Let’s not forget, the parties are going to “come to an agreement on the impartial doctor.” If anything, the Chamber should realize that we should not be adding to complexities of the UR process; we should be simplifying it. Complexities raise costs, not lower them.
Notably, the Chamber does not specify who would be paying for the impartial physician. Presumably the Bureau of Labor and Industry as it is currently responsible for the cost of the impartial doctor. Ultimately then, the Chamber wants taxpayers to pay for an impartial physician on every single UR the carriers file. It is taxpayers that fund the credit the carriers receive when an injured worker receives unemployment compensation before securing workers’ compensation benefits. The last thing we should be doing in this economy is shifting another expense on the hardworking people of the Commonwealth. If the redundant nature of adding a fourth expert wasn’t enough, the cost of adding a fourth expert ought to surely sink this ship.
Are you wondering what the goal of this proposal is? You guessed it, “reduce instances of abuse” and stop the WCJ’s from “ignoring the UR Determinations.” First, what exactly is being abused? The UR process is solely for the benefit of the carrier to avoid paying for medical expenses. It was enacted at their request in the 1996 amendments to the Act. If anything, it is the carriers that abuse the process when they file the same UR Request over and over again on the same provider, despite the fact that the treatment is found to be reasonable and necessary. Carriers routinely use it as a mechanism to starve out providers because payment of bills is suspended while the treatment is being reviewed. One solution to carrier abuse is to require continued payment of bills until an unfavorable UR Determination has been made.
The chamber also seeks to prevent the WCJ’s from “ignoring the UR Determinations.” First, this simply isn’t true. More often than not, the WCJ rules consistently with the UR Reviewer. Second, what the Chamber is really trying to do, but skirting the issue, is take away the de novo review from the WCJ. The Chamber’s sole goal is to make as many inroads as possible to ensure injured workers medical treatment is found to be unreasonable and unnecessary, thereby avoiding payment.
We should not forget the humanitarian purpose of the Act. The Act is designed to be remedial in nature and it is purposefully a no fault system. Deference is supposed to be given to the injured worker. Deference by a WCJ to the injured worker is what the WCJ should be doing. This basic tenant of the Act seems to be lost in our current system. The Chamber has forgotten that workers’ compensation benefits are far more cost efficient for it than civil lawsuits when an employee is injured. Perhaps the right to sue employers should be restored to injured workers so that they can recover their actual damages instead of a mere 66% of their salary and medical benefits only for their injured body part. If that option were available, the Chamber would probably quiet down and back off of the paper chase on the UR process.
By Sam Pond and Allison Wheeler
Special to the Pennsylvania Law Weekly