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Anyone who ever spends any degree of time as a claimant’s practitioner in the Pennsylvania Workers’ Compensation system quickly realizes that there is a substantial flaw inherent in the manner in which medical expenses are paid. Given the lack of a “pre-approval” system common to many HMOs and private health insurance policies, doctors who are gracious and daring enough to treat injured workers in the first place are often left with nothing but a quasi-worthless assurance from the claimant’s attorney that his bills will be protected if the treatment is ultimately found to be reasonable, necessary and approved by the fact-finder. The inability of a health care provider to get any assurance whatsoever that its charges will be covered has forced many of them to refuse to accept workers’ compensation insurance from the onset as a matter of policy. Obviously, this limits the treatment options of well-meaning injured workers across the state and thwarts their ability to get adequate medical treatment. Often times, attorneys are limited to referring claimants to doctors who have demonstrated a willingness to work with the system. This willingness to be frequently involved in workers’ compensation claims then unfairly labels the accommodating doctors as “players”, ultimately counterbalancing the magnanimous decision to get involved in the first place. One of the main problems that has led to the medical care crisis in the workers’ compensation forum is an adjuster’s ability to erroneously or ambiguously indicate to an inquiring health care provider that a case is either “in litigation” (whatever that means) and the bills will not be paid, or that “bills are currently being denied due to an IME doctor’s opinion” with no additional information. Invariably, there comes a time when a client is not able to obtain seemingly innocuous medical treatment because a health care provider has been scared into not performing any treatment on the claimant. The reasons for the stonewalling tactics are many and usually have something to do with an adjuster’s “gut feeling.” Nonetheless, all should be aware that the conduct is legally condemned by case law. Almost a year ago, the Commonwealth Court issued the decision McLaughlin v. W.C.A.B. (St. Francis Country House), 808 A.2d 285 (Pa. Commw. 2002); appeal to Supreme Court denied 828A.2d 351 (Pa. 2003). The case dealt with a claimant’s inability to get a recommended surgical procedure. In reaching its conclusion, the court held that an employer’s conduct of unilaterally ceasing medical benefit payment pending its petitions to review medical treatment and to terminate benefits, without obtaining a supersedeas or any other prior authority to do so, or challenging the reasonableness or necessity of the scheduled surgery in a properly filed utilization review determination petition, constituted a clear violationof its ongoing obligation to provide reasonable and necessary surgical and medical services under the act. Additionally, the court found that because the employer violated the act, a penalty was properly assessed. The salient point is; the surgery had not yet been preformed! Prior to performing the surgical procedure, the provider sought pre-certification or pre-approval of the scheduled surgery. The adjuster indicated that it would not pay for “any treatment” pending its petition for termination, relying on its IME doctor’s opinion that the claimant had fully recovered from the work injury and was able to return to work without restrictions. The employer’s position was basically that its obligation to pay for medical treatment did not commence unless and until it receives medical bills and records from the provider and since the scheduled surgery had never been performed, the employer’s obligation to pay for such treatment did not arise. The Commonwealth Court did not accept the employer’s argument. In fact, the court found the employer’s “hide-the-ball tactic” disingenuous, stating: “[w]e find Employer’s reliance on Section 306(f.1)(2) and (5) of the act disingenuous. Under its plain language, Section 306(f.1)(2) and (5) is applicable only where the claimant has actually received medical treatment from the providers generating medical bills and records. By refusing to authorize the scheduled surgery and indicating that it would not pay for ‘any treatment’ pending its petition for termination, Employer effectively prevented claimant from receiving the treatment recommended by his treating physician.” Thus, with one decision, the Commonwealth Court tried to put an end to the practice of an insurer’s misrepresenting the status of a claim. The reason for authoring this article, nearly one year after McLaughlinwas decided, is because the problem persists. Adjusters are still saying what they want to providers, and doctors are refusing to render treatment as a result. Therefore, it is incumbent on claimant’s practitioners to routinely call the insurers’ bluff and file a penalty petition when a provider receives inaccurate information from an adjuster regarding the status of a claim. Only through the repeated litigation of such infractions will claims handlers begin to realize that the behavior is simply not legal. CHRISTIAN PETRUCCI, an associate at The Law Offices of Thomas More Holland, concentrates his practice in workers’ compensation and counsels injured workers in matters involving employment discrimination, Social Security and unemployment benefits. He is co-chairman of the Philadelphia Bar Association’s workers’ compensation section. He can be reached at [email protected].

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