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As practitioners of workers’ compensation are aware, in 1993, the General Assembly enacted Act 44, an amendment to the Workers’Compensation Act, which sought to substantially control medical costs associated with work-related care. One of the main elements of Act 44 is a peer review system which enables medical care to be evaluated by a licensed Utilization Review Organization, which offers a review by a health care professional practicing in the same field as the provider under review to determine the reasonableness and necessity of a provider’s treatment. The first step in the URO process following the assignment of an employer’s utilization review request by the bureau to a URO is the URO’s solicitation of the provider for all relevant medial records. The URO must make this request for the records within five days of receipt of the bureau’s notice of assignment of the request. Following receipt of the records from the provider, the URO must make a determination on the merits as to whether the treatment is “reasonable and necessary.” This final determination must be made within 30 days of the initial request. The submission of medical records along with an obligatory phone call comprise the provider’s only opportunity to defend his treatment at this administrative level. The Act 44 utilization review process is the only manner in which an employer can challenge the reasonableness and necessity of medical expenses. The courts have repeatedly held that neither a workers’ compensation judge (WCJ) nor the Workers’ Compensation Appeal Board have subject matter jurisdiction to determine the reasonableness and necessity of medical treatment. However, both sides retain the right to appeal the administrative, UR determination for judicial review before a WCJ. This has always been true of any utilization review determination until the recent Commonwealth Court case of County of Allegheny v. WCAB (Geisler). In Geisler, the employer filed a request for utilization review with respect to the medical treatment of a certain provider and the corresponding medications which he prescribed. According to the URO, the provider failed to provide his medical records to the URO in a timely manner. On that basis, the URO issued a determination which found the medical treatment to be neither reasonable nor necessary due to the supposed failure of the provider to turn over the records. The claimant filed an appeal of the utilization review determination to a WCJ. Following the assignment of the petition, the employer moved for dismissal of the claimant’s petition to review UR determination asserting that the WCJ lacked jurisdiction to hear the case on the merits due to the provider’s apparent failure to provide the necessary records. The WCJ denied the employer’s motion and evidence was presented over the course of various hearings. In the final determination, the WCJ granted the petition to review UR determination in part, finding that a portion of the doctor’s care was reasonable and necessary through a certain date, after which it was not. The important point is that the WCJ decided the matter on the merits. Defendant took an appeal and the WCAB affirmed the WCJ’s decision. On appeal to the Commonwealth Court, the employer raised only the issue of whether a WCJ can review the merits of a UR determination where the provider failed to provide the necessary records. The employer’s position was that the WCJ should have dismissed the provider’s petition since providers would otherwise have a disincentive in providing the required records, choosing instead to go directly to a WCJ decision, thereby bypassing the Act 44 URO process entirely. Unfortunately for claimants and providers alike, the Commonwealth Court agreed with the employer’s argument. It held: “if a report by a peer physician is not prepared because the provider has failed to produce medical records to the review, the WCJ lacks jurisdiction to determine the reasonableness and necessity of medical treatment.” It further elaborated that to hold otherwise would allow a provider to confer jurisdiction on the WCJ indirectly, obtaining a result it cannot do directly without following the mandates of the URO process. Although the court’s holding seems axiomatic, it presents substantial logistical problems that an appellate court could not envision absent practical experience. While it is clear that providers should not be rewarded for intentionally refusing to provide their records to a URO, most cases do not concern such egregious conduct. Oftentimes the fault lies with the URO’s failure to request the records within five days, an untimely vacation by the provider, or simply a problem with the mail. Therefore, the court’s decision in Geisler would seem to deprive a claimants and providers of their due process rights through no fault of their own in many instances. It is therefore incumbent on the practitioner to adequately police the initial utilization review determination and take an appeal to a WCJ nonetheless, if the URO’s assertion that the records were not timely filed seems suspect. While the WCJ has no jurisdiction to decide the case on the merits in the presence of provider malfeasance, I believe the WCJ still has the power to ascertain whether Geisler even applies by conducting a hearing on the reasons for the failure to provide records. The Geisler court even suggests that such a review is appropriate as it sets fort in footnote eleven what the record revealed as to the steps the URO took in documenting the attempts to request the records. The URO had included in the record a copy of the certified mail receipt of the request for the provider’s records. The provider never sought to challenge this notion on appeal to the WCJ, but clearly could have. In conclusion, the practitioner should first take an interactive role in seeing to it that providers comply with the procedures of the URO process by prompting the submission of the relevant records to the URO in a timely manner. If these safeguards should fail, or if this is deemed to be too time consuming a task, there should always be an inquiry into the circumstances of any UR determination that is decided on an alleged failure of the provider to supply the records in a timely manner. To read Geisler as precluding any and all appeals of a utilization review determination decided without the requisite records could foster abuse in the URO process, as it would make the URO’s bald assertion that the provider failed to act in good faith a final determination. More importantly, it would deprive claimants and providers alike of their due process rights. Christian Petrucci is past co-chairman of the Philadelphia Bar Association’s workers’ compensation section. He concentrates his practice in workers’ compensation litigation and Social Security Disability. He can be reached at 215-985-0976 or via e-mail at [email protected]

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