1 PAYMENT OF MEDICAL EXPENSES IN WORKERS COMPENSATION CLAIMS By: Marla A. Joseph, Esq. & Joseph P. Turchi, Esq. I. SCOPE OF EMPLOYER S LIABILITY Employer s Voluntary Payment of Medical Bills is not an admission of liability. See Findlay Township vs. WCAB (Phillis), 996 A.2d 1111 (Pa. Cmwlth. 2010); and Bailey vs. WCAB (Abex Corp.), 717 A.2d 17 (Pa. Cmwlth. 1998). Employers are not collaterally estopped from refuting causation, when they file a prospective Utilization Review (UR) for treatment of injuries not yet found compensable. Securitas Security Services, USA, Inc. vs. WCAB (Schuh), 16 A.3d 1221 (Pa. Cmwlth. 2011). UROs shall decide only the reasonableness or necessity of the treatment under review. UROs may not decide the causal relationship between the treatment under review and the employee's work related injury. II. TENSION BETWEEN THE HUMANITARIAN PURPOSES OF THE ACT AND A WINDFALL A. Decisions supporting the remedial nature and humanitarian purposes of the Act. 1. Griffiths vs. WCAB (Seven Stars Farm, Inc.), 943 A.2d 242 (Pa. 2008). Two holdings: a) The employer required to pay for a wheelchair accessible van, and not just the cost of a van s modifications because it qualifies under the broad definition of an orthopedic appliance pursuant to Section 306 (f.1)(1)(ii) of the Act. The court emphasized: i. The injured worker, a C 5 quadriplegic, had a devastating work injury; ii. The injured worker would otherwise be unable to operate a motor vehicle. 1
2 b) Griffiths vs. WCAB (Seven Stars Farm, Inc.), 943 A.2d 242 (Pa. 2008) also held that the cost containment provisions of Section 306 (f.1)(3)(i) only applies to a claimant s medical treatment from health care providers and not to orthopedic appliances. Thus, the employer had improperly paid for only 80% of the van rental costs and retrofitting. HUMANITARIAN PURPOSES AND REMEDIAL NATURE OF THE ACT. 2. Tobias vs. WCAB (Nature s Way Nursery, Inc.), 595 A.2d 781 (Pa. Cmwlth.1991), the employer obligated to pay both the injured worker s and his wife s medical expenses related to artificial insemination when the claimant sustained a serious spinal cord injury that caused ejaculatory dysfunction. WINDFALL Commonwealth of Pennsylvania Dept. of Transp. and CompServices, Inc. vs. WCAB (Clipinger), 38 A.3d 1037 (Pa. Cmwlth. 2011). The employer was not obligated to pay for the installation of an inhome therapeutic pool when: 1. Injured worker was not wheelchair bound; 2. He continues to perform full time modified duty work; 3. Was sufficiently mobile to work full time; and 4. Was able to travel to a physical therapy facility to receive aquatic therapy. 2
3 Recommendations for Claimant s Practitioners seeking extraordinary medical treatment. Establish the severity of the injured worker s condition Establish functional limitations that may even result in the treatment being considered payment of an orthopedic appliance (100% payment, rather than 80%) Demonstrate the inability of alternative means or methods of treatment. Recommendations for Defense Practitioners seeking extraordinary medical treatment. Demonstrate more reasonable alternative treatment options Prove the functionality and mobility of the Claimant. III. When is a denial of a medical bills appropriate? 1. Requests for payment of medical bills shall be made either on the HCFA Form 1500 or the UB92 form (HCFA Form 1450), or any successor forms, required by HCFA for submission of Medicare claims. 34 Pa.Code Cost based providers shall submit a detailed bill including the service codes consistent with the service codes submitted to the Bureau. 34 Pa.Code Providers must submit periodic medical reports on Bureau prescribed (LIBC 9) Forms. 3
4 Is it proper to deny bills when the provider and/or Claimant has not complied with the Act s Procedures? Seven Star Farm, Inc. vs. WCAB (Griffiths), 935 A.2d 921 (Pa. Cmwlth. 2007). If the employer had previously paid a Claimant s medical bills without the submission of bills on the proper HCFA and Department of Labor forms, and the Claimant had submitted sufficient information for the carrier to pay the bills, then it was not excused from penalties. IV. PAYMENT OF HYDROCODONE COMBINATION DRUGS (VICODIN,LORTAB, LORCET AND NARCO). On August 22, 2014, the US Drug Enforcement Administration (DEA) re categorized products that contain hydrocodone combination products (i.e. Vicodin, Lortab, Lorcet and Norco) from Schedule III to Schedule II of the Controlled Substances Act and this rule went into effect October 6, Federal Register Volume 79, Number 163 (Friday, August 22, 2014). PRACTICAL IMPLICATION OF RECLASSIFICATION OF HYDROCODONE COMBINATION DRUGS Prescribers will no longer be able to authorize refills for HCPs and will be limited to prescribing a 30 day supply, although the DEA notes that prescribers can issue multiple prescriptions for up to a 90 day supply. Before this rule, doctors could prescribe a 180 day supply. Patients must be seen by a doctor and prescriptions cannot be called into the Pharmacy. Rescheduling will also change the process required to order and transfer HCPs from a distributor to a pharmacy. (Instead of invoices, must be submitted on official DEA form, customers must present ID and pills must be double counted) and HCPs must be stored in secure vaults. 4
5 PENNSYLVANIA MEDICAL SOCIETY GUIDELINES Conduct and document a history, including documentation and verification of current medication and a physical exam, before initiating chronic opioid therapy. Discuss the risks and potential benefits associated with treatment with the patient so that he or she can make an informed decision regarding treatment. Consider initial treatment with opioids a therapeutic trial to determine whether chronic opioid therapy is appropriate for the patient. Individualize opioid selection, initial dosing, and dose adjustments according to the patient s health status, previous exposure to opioids, response to treatment, and predicted or observed adverse events. Carefully consider if doses above 100 mg./day of oral morphine or its equivalent are indicated. Reassess patients on chronic opioid therapy periodically and as warranted by changing circumstances. Carefully monitor patients for aberrant drug related behaviors, and consider increasing the frequency of ongoing monitoring as well as referral for specialty care, including psychological, psychiatric, and addiction experts, for patients identified to be at high risk for such behaviors. Carefully determine if the risk associated with chronic opioid therapy outweigh document benefit in patients who have engaged in aberrant drug related behaviors. Discontinue chronic opioid therapy in patients who engage in repeated aberrant drug related behaviors or drug abuse diversion, experience no progress toward meeting therapeutic goals, or experience intolerable side effects. Understand current federal and state laws, regulatory guidelines, and policy statements that govern the use of chronic opioid therapy for chronic non cancer pain. PRACTICAL CONSIDERATIONS Claimant s practitioners should counsel clients about treating with reputable doctors (are they performing urine/blood tests and monitoring drug intake). Push the carrier to cover rehabilitation facility if there is an addiction problem. Review the PA Medical Society s guidelines when presenting direct exam of provider during UR litigation. Treating physician should testify about the clinical objective outcomes, measures used to quantify pain In the context of a UR, when cross examining a reviewer who found Hydrocodone Combination medications unreasonable and unnecessary, lay a foundation for the proper way to wean off medication so that Claimant will not be immediately cut off medication. 5
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