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Providing injured workers with “reasonable” and “necessary” medical treatment has not always been beneficial or cost-effective. Prior to Acts 44 and 57, an employer questioning the effectiveness of medical treatment had to file a Review Petition and continue paying for challenged medical care until there was a decision from a workers’ compensation judge that the treatment in question was neither reasonable nor necessary. The criticism with that approach was that the determination was being made by lawyers on the basis of legal concepts rather than through medical providers or practitioners responsible for the welfare of the injured worker. Moreover, employers and insurance carriers viewed the process as time-consuming, costly and arbitrary — particularly in situations where the breadth of medical treatment produced little, if any, improvement in an injured worker’s functional level. With the Act 44 and 57 reforms, the determination over whether medical treatment was reasonable and necessary was taken out of the hands of the lawyers and put into the hands of medical practitioners. In theory, this legitimized the review procedures as the opinions were often made by state-selected specialists in the field of medicine under review (e.g. chiropractors reviewing treatment offered by chiropractors). Initially, this system appeared to provide employers and insurance carriers with the weapons to combat repetitive and wasteful treatment. In fact, workers’ compensation judges initially looked to determine whether the challenged treatment provided any improvement in the claimant’s functional level or ability to resume gainful employment. If not, the treatment was deemed neither reasonable nor necessary. (See the Commonwealth Court decision in 1977 in Tatano v. W.C.A.B. (Copyworld of Pitts-burgh.) Palliative care provision In 1999, however, the standard for determining reasonable and necessary care was broadened to include palliative care. (See the Commonwealth Court’s 2000 decision in Glick v. W.C.A.B. (Concord Beverage Co.)and its 1999 decision in Cruz v. W.C.A.B. (Philadelphia Club.)In fact, it was held by the court in 1999 in Central Highway Oil Co. v. W.C.A.B. (Mahmod)to be error for a WCJ to conclude that challenged medical or chiropractic treatment had to be focused on reducing impairment in order to be reasonable. Palliative care is medical treatment which is aimed at treating symptoms rather than providing a cure for an ailment. In Trafalgar House v. W.C.A.B. (Green),the Common-wealth Court in 2001 held that palliative care which helps keep an injured worker “comfortable” may be considered reasonable and necessary treatment under the provisions of the act. Accordingly, it was only necessary for an injured worker to testify that he or she received some relief from palliative treatment, usually in the form of passive physical modalities or chiropractic adjustments, for the WCJ to overturn a previous utilization review determination that the treatment was inappropriate. Recently, however, the landscape on palliative treatment as a panacea for injured workers may have changed. Jackson case noteworthy In the 2003 decision by the Commonwealth Court in Jackson v. W.C.A.B. (Boeing), a claimant sustained an injury to his low back and began chiropractic treatment in the form of passive modalities. Thereafter, the employer filed a UR request challenging the reasonableness and necessity of the chiropractic treatment after nearly nine months of the same and unaltered care following the injury. The UR reviewer concluded that the treatment was inappropriate. The provider filed a petition to review the determination, and, after two hearings, the WCJ found and concluded that the chiropractic treatment was neither reasonable nor necessary. As part of his decision, the WCJ found that the conclusions of the UR reviewer were more credible and persuasive than those of the provider and that the chiropractic treatment rendered was actually more of a disservice rather than a service to the overall welfare of the injured worker. Significant in the WCJ’s decision was a determination by the UR reviewer that the progress reports showed objective findings which fluctuated throughout the course of care and which confirmed a chronic condition characterized by periodic exacerbations. Consequently, the UR reviewer opined that the modalities rendered exhausted their objective potential after a relatively brief initial period and were superseded over the long term by active exercises. The appeal board affirmed the WCJ’s decision, as did Commonwealth Court. The court rejected the provider’s argument that the WCJ’s decision was inconsistent with earlier precedent that palliative care was appropriate under the applicable provisions of the act. The court observed that while palliative treatments may be deemed necessary and reasonable treatment, the modalities offered by the provider were, in this case, not only non-palliative, but actually detrimental to the claimant over the long term. Accordingly, the court held that the WCJ did not err in denying the provider’s review petition. Advice to practitioners It is worth noting that the Jacksoncase is distinguished from the Cruz, Trafalgar Houseand Glickdecisions by the fact that the employer was able to prove that the chiropractic treatment rendered to the claimant had a detrimental effect over the long term. The evidence deemed credible by the WCJ showed that there were effective treatment alternatives for the claimant’s work injury. With this perspective in mind, I would offer the following suggestions to defense practitioners: Carefully review the report of the UR reviewer to determine whether his conclusions are supported by specific references to the provider’s treatment records. In the Jacksoncase, the UR reviewer was able to conclude that the modalities rendered to the claimant were detrimental by showing that the claimant suffered numerous exacerbations over the long term on the basis of the provider’s own records. Make sure the UR determination offers effective alternatives to the challenged treatment including, but not limited to, alternative palliative care. In the Jacksondecision, the UR reviewer was not only able to demonstrate that the chiropractic modalities were detrimental to the claimant, but also that there were more effective alternatives, such as a self-monitored home exercise program which could provide desirable results. Look for changes in the provider’s care which support the UR reviewer’s conclusions that the modalities rendered were neither reasonable nor necessary. In the Jacksondecision, the provider abandoned his treatment modalities shortly after the employer filed its UR request. Nothing acts as a more persuasive endorsement that the UR determination is valid than the provider’s abandonment of his treatment plan. Finally, be prepared to solicit additional opinions, either through an independent medical evaluation or records review, to address gaps or holes in the UR reviewer’s report focusing on the detrimental effect of the treatment being rendered to the injured worker. In the end, the focus should be on the welfare of the injured worker. By setting your sights on that goal, defense attorneys will provide a service to the clients, their carriers and, most important, the medical needs of injured workers. DANIEL V. DILORETTO is a partner at Harvey Pennington Cabot Griffith & Renneisen and past co-chairman of the Philadelphia Bar Association workers’ compensation section. His practice is devoted to workers’ compensation litigation and related issues. (Copies of the 13-page opinion inJackson v. W.C.A.B. (Boeing), PICS NO. 03-0832, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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