No admission of liability for injuries where Employer requests Utilization Review

During the first week of April, the Pennsylvania Commonwealth Court held that an Employer may use the Utilization Review process to determine if medical treatment is reasonable and necessary for injuries or medical conditions which are it has not accepted as part of the work injury without fear that such a review will bind the Employer to liability for those non-accepted injuries. In the case of Securitas Security Services v. WCAB, No. 349 C.D. 2010, (Pa. Cmwlth. , April 4, 2011), the Employer had issued a Notice of Temporary Compensation (NTCP) accepting responsibility for a “lower back strain”. Approximately a year later, Claimant treated for depression and, several months after beginning treatment, the Employer filed a Utilization Review seeing prospective review of such treatment. The Utilization Review found such treatment reasonable and necessary and the Employer did not appeal this decision. On July 30, 2007, the Claimant filed a Petition to Review the description of injury to include depression and anxiety on the theory that the earlier unappealed Utilization Review decision bound the Employer to pay for those injuries and conditions, in addition to the lower back strain it accepted by issuing the NTCP. The Workers’ Compensation Judge held that the Employer did, in fact, accept responsibility for the depression and anxiety by using the Utilization Review process. The Workers’ Compensation Appeal Board affirmed the decision. However, the Commonwealth Court reversed, stating that an Employer’s use of the Utilization Review process on treatment that it had not accepted as part of the work injury, did not make it responsible to pay for that medical treatment in the future, unless it was subject to that particular Utilization Review. The Court first stated the theory of collateral estoppel did not apply because the Claimant’s Review Petition did not raise issues that were identical to those that were previously litigated, essential to the previous judgment and material to that decision on the Utilization Review. Secondly, the Court stated that the regulations which govern the Utilization Review process restrict a Utilization Review Organization from making any decision on the causal relationship between any treatment and the accepted work injury. §127.406 (b)(1). In fact, the Court cites to the regulation which permits an employer to request a Utilization Review in a medical-only case even where there hasn’t been any acknowledgement or determination of responsibility so long as it pays for any treatment found reasonable and necessary. §127.406. Therefore, the Employer was only responsible to pay for the treatment that was subject to the Utilization Review decision, which, in this case, would be treatment for the Claimant’s depression. One of the troubling issues of this decision is the Commonwealth Court’s seeming neglect of another portion of the regulations which specifically requires that the Bureau of Workers’ Compensation confirm whether the insurer is liable for the underlying alleged work injury or injuries before the Utilization Review will take place. Specifically, §127.404© states “[t]he Bureau will process the UR Request only when workers’ compensation liability for the underlying injury has been accepted or determined.” The Court, however, stated “nothing in our case law or applicable cost containment regulations suggests that the mere filing of a UR request imposes liability on an employer for a specific injury.” It would seem that such a statement is contrary to the existing regulations promulgated by the Department of Labor and Industry.

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