M. Leschke v. WCAB (U.S. Alumnium Corp.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael Leschke, Petitioner v. Workers' Compensation Appeal Board (U.S. Aluminum Corp.), Respondent BEFORE: : : : : : : : : No. 2083 C.D. 2007 Submitted: April 4, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McGINLEY FILED: May 22, 2008 Michael Leschke (Claimant) petitions for review from an order of the Workers Compensation Appeal Board (Board) that vacated the decision of the Workers Compensation Judge s (WCJ) grant of Claimant s petition for review of utilization review (UR) determination. On August 17, 1993, Claimant sustained a work-related injury while employed by US Aluminum Corporation (Employer), and as a result Employer issued a Notice of Compensation Payable (NCP) for Claimant s severe low back strain and pain.1 1 Pursuant to the NCP, Claimant received workers compensation benefits for total disability in the weekly amount of $290.47 based on an average weekly wage of $435.70. On June 29, 1995, the parties entered into a Supplemental Agreement where Claimant s workers compensation benefits were reduced to the rate of $130.00 per week for partial disability. On May 15, 2006, Claimant filed a UR request and sought review of a [h]ot tub purchase as a reasonable and necessary health care expense. Utilization Review Request, May 15, 2006, at 2. The utilization review organization (URO) determined that the hot tub purchase was not reasonable or necessary pursuant to 34 Pa. Code § 127.464 (effect of failure of provider under review to supply records). Claimant petitioned for review of the URO determination and a hearing was held. Claimant testified that after he suffered a work-related injury Dr. Bradley K. Weiner (Dr. Weiner), of Hershey Medical Center, prescribed a hot tub to help with his pain management. Notes of Testimony (N.T.), September 14, 2006, at 5; Reproduced Record (R.R.) at 24a. Claimant testified that his original hot tub was approximately nine years old and that [t]he motor was shot . . . [i]t doesn t work properly . . . [i]t s all torn up. I mean, it s vinyl, and it doesn t last very long; after awhile, it cracks, it leaks . . . . N.T. at 16; R.R. at 35a. Dr. Weiner provided Claimant with a prescription for a replacement hot tub. N.T. at 14 and 16; R.R. at 33a and 35a. Claimant stated that Dr. Weiner left Hershey Medical Center sometime after he prescribed the second hot tub in October of 2005. N.T. at 15; R.R. at 34a. Employer presented related documentation of its numerous attempts to contact Dr. Weiner in order for him to provide the requested records. The WCJ made the following pertinent findings of fact: 3. In support of the claimant s petition, the claimant presented his testimony and submitted documents into 2 the record, particularly an utilization review request, a fee agreement between the claimant s counsel, letters with dates of January 20 and 23, 2006 and February 13, 2006, a spa estimate letter, prescription payments, and a delineation of the activities of the claimant s counsel for the prosecution of the petition and expended time for those activities. In opposition thereto, the defendant [Employer] submitted documents into the record, particularly a request for an utilization review with respect to the hot tub, a notice of assignment of utilization review request, correspondence with a date of May 23, 2006, a U.S. Postal Service certified mail receipt with a date of May 28, 2006, a record of phone calls, and an utilization review determination face sheet with a date of July 26, 2006. The judge believes and accepts the testimony of the claimant and statements in the documents in accordance with the Findings of Fact. (emphasis added). 4. The claimant testified, and the judge finds that the claimant received treatment in 2005 for the work injury at Hershey Medical Center by Dr. Weiner, who prescribed medication and a hot tub for the claimant and gave a referral to the claimant for pain management. 5. Based on the claimant s testimony, the judge finds that the prescription for the hot tub by Dr. Weiner was dated October 17, 2005, that Dr. Weiner subsequently left Hershey Medical Center, and that the claimant received treatment from Dr. Weiner for the duration of Dr. Weiner s practice at Hershey Medical Center and until about September 2005 in accordance with these findings. The claimant testified, and the judge finds that the claimant received treatment from Dr. Vora after the end of Dr. Weiner s practice at Hershey Medical Center. .... 15. A letter with a date of May 23, 2006 established, and the judge finds that VMed sent a letter to Dr. Weiner . . . on May 23, 2006, about VMed s authorization for the performance of an utilization review on Dr. Weiner s treatment of the claimant . . . and its request for a copy of Dr. Weiner s true and complete set of medical records with respect to the claimant s work injury within 30 days 3 of the date of the letter and for his completion and signature of a verification form. Based on a U.S. Postal Service certified mail receipt form, the judge finds that an individual with the first name of Samuel signed for the letter to Dr. Weiner on August 28, 2006. (emphasis added). 16. A record of follow up phone calls for the utilization review established, and the judge finds . . . that a certified letter was received and forwarded to medical records . . . and no return call was received after May 26, 2006. (emphasis added). 17. A record of follow up phone calls for the utilization review established, and the judge finds that a voice message about an utilization review, the due date for medical records, and the need for a signed verification form was left for an individual by the name of Tracy by an unidentified individual in the record along with a toll free number and a request for a return phone call on June 16, 2006 and that no return call was received after June 14, 2006. (emphasis added). 18. An Utilization Review Determination Face Sheet established, and the judge finds that the utilization determination was that the reviewed health care of the claimant was not reasonable and necessary for the claimant s work injury because of the failure of the provider under review to supply records. (emphasis added). 19. Based on the record, the judge finds that the provider, Dr. Weiner, had a reasonable excuse for not supplying the records in a timely manner as a result of the end of his practice at Hershey Medical Center by 2005 and as a result a result of a lack of notification about the utilization review to Dr. Weiner and that the defendant [Employer] filed a request for utilization review after the expiration of a 30 day period since its receipt of the prescription and medical report for the hot tub and estimate and bills for it. (emphasis added). 4 20. Based on the record, including the record logs, the judge finds that the evidence did not establish that the utilization reviewer determined whether the records of Dr. Weiner were mailed in a timely manner and adequately documented that the reviewer made attempts for the receipt of Dr. Weiner s record. 21. The judge finds that the defendant [Employer] did not reasonably contest this matter by its submission of the documents into the record and its cross examination of the claimant . . . . The WCJ Decision, February 23, 2007, Findings of Fact (F.F.) Nos. 3-5 and 15-21 at 1-4. The WCJ granted Claimant s petition and concluded: 4. Since a claimant should have the opportunity to demonstrate that records were sent, or lost in the mail, or that the provider had a reasonable excuse for not supplying the records in a timely manner or at all, the judge has jurisdiction to decide those issues and either uphold the determination on the basis of the lack of provision of the records or to vacate the determination, in accordance with the terms of the Pennsylvania Workers Compensation Act. The judge concludes that the Determination of the Utilization Review should be and therefore is vacated in accordance with the terms of the Pennsylvania Workers Compensation Act. (emphasis added). The WCJ Decision, Conclusion of Law (C.L.) No. 4 at 5. On appeal, the Board vacated: The WCJ specifically found that the utilization determination was that the reviewed health care of the claimant was not reasonable and necessary for the claimant s work injury because of the failure of the provider under review to supply records. (Finding 18). 5 Review of the record supports this Finding by the WCJ. Thus, the WCJ did lack jurisdiction in this matter. Board s Opinion, October 11, 2007, at 3. On appeal2, Claimant contends that the WCJ had the authority to review the adequacy of the URO s pursuit of Claimant s records and to determine whether the URO complied with 34 Pa. Code § 127.464(b). Claimant asserts that the WCJ had jurisdiction to review the present matter because her decision did not determine whether Claimant s treatment was reasonable and necessary. Gazzola v. Workers Compensation Appeal Board (Ikon Office Solutions), 911 A.2d 662 (Pa. Cmwlth. 2006). In Gazzola3, this Court reaffirmed our decision in County of Allegheny v. Workers Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005) but carved out a factual distinction: Our decision in Geisler states that the Section 306(f.1) of the Workers Compensation Act (Act)[4], 77 P.S. §531(6), as implemented by 34 Pa. Code § 127.464, provides the exclusive procedure for challenging the reasonableness or necessity of medical treatment and that neither a 2 This Court s review is limited to determining whether constitutional rights were violated, whether the adjudication is in accordance with the law and whether necessary findings of fact are supported by substantial evidence. Vinglinsky v. Workmen s Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). 3 In Gazzola, Solomon Associates had been assigned as the URO and sought review of Dr. [Marvin] Weinar s treatment in the form of prescription and use of Oxycontin [and] the URO issued a determination . . . that the treatment was not reasonable and necessary pursuant to 34 Pa. Code § 127.464 based on the provider s failure to supply the requested medical records. Id. at 663. Appended to the determination was the certified mail return receipt indicating that the request was delivered to Dr. Weinar s office on August 25, 2004. Id. at 663. 4 Act of June 2, 1915, P.L. 736, as amended. 6 workers compensation judge nor the Board has jurisdiction to determine the reasonableness of medical treatment unless and until a report is issued. 875 A.2d at 1126. We based that decision on Section 306(f.1)(6)(iv), which states that a petition for review of a URO determination filed within thirty (30) days after receipt of the report shall be decided by a judge who shall consider the UR report as evidence. 77 P.S. § 531(6)(iv). In the case where the URO renders a determination against a provider because of the provider s failure to mail the records to the URO within 30 days of the date of request, the URO request is not assigned to a reviewer, 34 Pa. Code § 127.464(a) and (c), and no reviewer s report is written. The facts in the present case are distinguishable from the facts in Geisler. In the present case, after the URO determination issued and [Rick] Gazzola filed a petition for review, at a hearing before the judge the parties submitted evidence to demonstrate what efforts were made to obtain the medical records and what happened in response . . . . .... A decision by the judge on the issues of the adequacy of the URO s pursuit of the records, the URO s compliance with 34 Pa. Code § 127.464(b), and whether the provider complied would not be a decision on the merits of whether the treatment was reasonable and necessary, an issue that this court ruled to be outside of the judge s jurisdiction. Geisler. The judge has jurisdiction to decide those issues and based on the evidence either to uphold the determination based on failure to provide the records or to vacate the determination and order that the records be sent to a reviewer for a URO determination on the merits of whether the treatment in question was reasonable and necessary. (footnote omitted and emphasis in original and added). Gazzola, 911 A.2d at 664-65. 7 Here, there is a critical difference that distinguishes the present matter from the outcome reached in Gazzola. It is undisputed that VMed, the assigned URO, complied with 34 Pa. Code § 127.464.5 VMed made three attempts to contact Dr. Weiner: 1) the first attempt was a request that was sent by certified mail on May 23, 2006, and an acknowledgement of receipt by the U.S. Postal Service, dated May 28, 2006, and that there was no response from Dr. Weiner; 2) the second attempt was a May 26, 2006, phone call where VMed noted, [s]poke with Tracey; certified letter was received and forwarded to medical records . . . [s]he transferred call to medical records . . . [which was] transferred to the Release of Information Desk . . . [l]eft detailed voice mail regarding the Utilization Review Request, due date for medical records and need for signed verification form. Record for Follow Up Phone Calls at 1; R.R. at 16a. No return call was received. Record for Follow Up Phone Calls at 1; R.R. at 16a. 3) a June 14, 2006 5 34 Pa. Code § 127.464 provides: (a) If the provider under review fails to mail records to the URO within 30 days of the date or request of the records, the URO shall render a determination that the treatment under review was not reasonable or necessary, if the conditions set forth in subsection (b) have not been met. (b) Before rendering the determination against the provider, a URO shall do the following: (1) Determine whether the records were mailed in a timely manner. (2) Indicate on the determination that the records were requested but not provided. (3) Adequately document the attempt to obtain records from the provider under review, including a copy of the certified mail return receipt from the request for records. (c) If the URO renders a determination against the provider under subsection (a), it may not assign the request to a reviewer. 8 phone call where VMed noted that [c]alled PUR office; forwarded to Tracey s voice mail . . . [l]eft detailed message about UR due date for medical records and need for signed verification form . . . [g]ave toll free number and requested a return phone call . . . [n]o phone call was received. Record for Follow Up Phone Calls at 1; R.R. at 16a; and 4) VMed waited sixty days from the date of its first request on May 26, 2006, until July 26, 2006, when it issued its determination that the challenged treatment was not reasonable or necessary because the provider under review failed to provide medical records. In fact, the WCJ accepted and found that VMed made numerous attempts to obtain the requested medical records and that the provider failed to respond. See WCJ s F.F. Nos. 3, and 15-17 at 2-3. However, the WCJ then found that VMed did not adequately pursue the medical records and that Dr. Weiner had a reasonable excuse for failing to provide the records because he was no longer affiliated with the Hershey Medical Center. See WCJ s F.F. Nos. 19 and 20. Clearly, these findings are not supported by record evidence. As noted, the record established and the WCJ found that VMed made numerous attempts by mail and phone to obtain the provider s medical records and that neither Dr. Weiner nor Hershey Medical Center responded to its request. Second, there was no substantial evidence that established Dr. Weiner was no longer on staff at the Hershey Medical Center at the time VMed sought the provider s records.6 To require the URO to take additional steps beyond what was 6 It is of no consequence that Claimant testified Dr. Weiner was no longer associated with the Hershey Medical Center because again the evidence established that an authorized agent for (Footnote continued on next page ¦) 9 presently done would unduly impede the URO s responsibility to render its determination no later than sixty-five days from the date of the notice of assignment. See 34 Pa. Code § 127.465. The WCJ erred when it granted Claimant s petition and vacated the URO s determination. Accordingly, this Court affirms the decision of the Board.7 ____________________________ BERNARD L. McGINLEY, Judge (continued ¦) the Hershey Medical Center signed for the certified letter addressed to Dr. Weiner. Also, after each phone call from VMed requesting that Dr. Weiner provide the requested records, VMed s request was forwarded to the medical records department. 7 We, as a reviewing Court, may, however, affirm the decision below on any basis clear on the record. Civil Service Commission v. Paieski, 559 A.2d 121, 124 n.6 (Pa. Cmwlth. 1989). 10 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Michael Leschke, Petitioner v. Workers' Compensation Appeal Board (U.S. Aluminum Corp.), Respondent : : : : : : : : No. 2083 C.D. 2007 ORDER AND NOW, this 22nd day of May, 2008, the order of the Workers Compensation Appeal Board in the above-captioned matter is affirmed. ____________________________ BERNARD L. McGINLEY, Judge

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