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The Commonwealth Court of Pennsylvania has issued three divided en banc decisions addressing matters of workers’ compensation, unemployment benefits and public retirement pensions — each representing a defeat for the employee petitioners. In Havenstrite v. Workers’ Compensation Appeal Board, the court held 4-3 that a chiropractor, hired by a utilization review organization to evaluate treatment for a workers’ compensation recipient, did not err in failing to contact the treatment provider, even though his conclusion stemmed from insufficient treatment documentation. In Frazier v. Unemployment Compensation Board of Review, the court ruled 5-2 that a nursing home employee, discharged for pleading guilty to two misdemeanor charges, violated a known work rule, even though the charges stemmed from crimes occurring before his employment started. Thus, the court concluded, the employee may not collect unemployment benefits because his behavior constituted willful misconduct under the Unemployment Compensation Law. And, in Donahue v. Public School Employees’ Retirement System, the court denied a constitutional challenge to amendments made to the state Public School Employees’ Retirement Code and State Employees’ Retirement Code on the grounds that they discriminate against employees who retired before the act’s effective date of July 1, 2001. SKETCHY NOTES At issue in Havenstrite are the “weak and sketchy” treatment notes of claimant Charles E. Havenstrite’s chiropractor, which prompted a utilization review evaluator to conclude that this treatment was not reasonable or necessary. Havenstrite argued that by failing to contact his treatment provider, Joseph Intelisano, D.C., the UR reviewer, Thomas Kollars, D.O., violated 34 Pa. Code § 127.469, which provides that a reviewer must initiate discussion with a provider “when such a discussion will assist the reviewer in reaching a determination.” “If the reviewer is unable to determine whether the treatment under review is reasonable or necessary,” § 127.471 of the code reads, “the reviewer shall resolve the issue in favor of the provider under review.” The majority, led by President Judge James Gardner Colins, focused its attention not on this statutory language but on three recent decisions controlling the court’s conclusion in this case. In Seamon v. Workers’ Compensation Appeal Board, the court held that a workers’ compensation judge must consider a utilization review report as evidence but is not bound by the report in reaching a decision. Three years later, in Solomon v. Workers’ Compensation Appeal Board, the court summarized its holding in Bolinsky v. Workers’ Compensation Appeal Board, that a UR reviewer’s failure to obtain a claimant’s “entire medical file does not automatically preclude a [utilization review] reviewer from assessing the reasonableness or necessity of a particular treatment. This is true even where there was no substantive contact between the reviewer and the treating health care provider.” The Solomon court went on to say that it would not declare a UR reviewer’s opinion “automatically incompetent for failure to review the entire medical file or speak with the health care provider.” The lesson learned from these cases, Colins said, is that a challenge to a UR report may be brought before a WCJ, who has the ultimate say on the merits of such a challenge. “An allegedly aggrieved claimant or provider has the opportunity in a hearing before a WCJ to challenge the credibility of a reviewer’s report, and can there assert that the WCJ should not assign much weight to the report because it is based on incomplete information or a failure to follow the utilization review procedures,” Colins wrote. In a dissent, joined by Judges Doris A. Smith-Ribner and Mary Hannah Leavitt, Judge Rochelle S. Friedman said neither Seamon, nor Solomon or Bolinsky, were controlling authorities in this case. In those cases, the reviewer did not indicate that a lack of sufficient medical records or his inability to interpret existing records prevented his rendering of an opinion. Consequently, Friedman said, the reviewers in those cases were not prevented from making a finding of reasonableness and necessity. “In the present case, however, Reviewer felt he had insufficient documentation and admitted that he had difficulty interpreting Provider’s handwriting,” Friedman wrote. “I fail to understand how a reviewer can determine if treatment is reasonable or necessary if he cannot even decipher and, consequently understand, exactly what the treatment at issue entailed.” Under such circumstances, Friedman concluded, § 127.471 of the state code requires that the UR reviewer resolve the issue in favor of the provider. WILLFUL MISCONDUCT In Frazier, the court concluded that petitioner William T. Frazier was ineligible for unemployment compensation after he was dismissed from his position at Jefferson Hills Manor, a rehabilitation and care center, because his guilty plea to theft by unlawful taking and defiant trespass constituted a violation of a known work rule. Consequently, under § 402(e) of the Unemployment Compensation Law, Frazier was precluded from recovering benefits. In a concurring opinion, Friedman agreed with the result but posited that the claimant was ineligible for benefits under § 3 of the law, which denies benefits for non-work-related conduct if it is contrary to acceptable standards of behavior and reflective upon the claimant’s ability to work. “Because Claimant’s misconduct occurred before Claimant was hired, it clearly constitutes non-work-related off-duty conduct,” Friedman wrote. The majority, led by Colins, disputed this notion, noting that, in Burger v. Unemployment Compensation Board of Review, the state Supreme Court distinguished between § 402(e) and § 3 of the law. Under § 3, the justices said, an employer must demonstrate that a claimant’s conduct was “contrary to acceptable standards of behavior,” and that such conduct “directly affects or reflects upon the claimant’s ability to perform his assigned duties.” “Because this is a case in which the claimant violated a reasonable work rule of which he was aware, this is not a case of an employer discharging an employee for off-duty conduct unrelated to his employment,” Colins wrote. “The Board properly concluded that Frazier was ineligible for benefits under § 402(e) of the Law because his two misdemeanor offenses for theft violated a Jefferson Hills work rule against prohibited offenses that disqualified him from continued employment.” Smith-Ribner also concurred in the result but did not write a separate opinion. PENSION CHALLENGE In their constitutional challenge to the 2001 amendments to the state public school and state employee retirement codes, two retired public school teachers, Patricia Donahue and Madeleine F. Pierucci, claimed that the policy underlying these changes — that unexpectedly good investment earnings should be shared with members — obligates the commonwealth to extend those benefits to all retirees. After all, retirees before July 1, 2001, contributed to the pension fund just as much as retirees after that date, resulting in the outstanding earnings. But, adopting a rational basis test, the court said that the amendments also effect a change in the level of contributions by those members electing to participate in the new classes of services. According to the legislation putting the changes into effect, the amendments were designed to allow participants to increase their contributions and spread the funds’ investment gains or losses over a 10-year, rather than a 20-year, time period. “These goals serve a legitimate State interest in affording contributing members an opportunity to share in investment risks while maintaining sound funding strategy,” Judge Bonnie Brigance Leadbetter wrote for the court. “Limiting participating in the new service classes to only those members actively employed and contributing is a rational means of achieving the legislative objectives.” Thus, the court concluded, the new class of service in the public school and state employee retirement code does not violate the constitutional guarantee of equal protection. Friedman wrote separately, only to say that the case could have been resolved on non-constitutional grounds by finding that the petitioners lacked standing to challenge the amendments. Smith-Ribner concurred in the result only.

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