M. L. McLean v. WCAB (Road Toad, Inc.) (Majority Opinion)

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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mary Lou McLean, Petitioner v. Workers Compensation Appeal Board (Road Toad, Inc.), Respondent BEFORE: : : : : : : : : No. 2309 C.D. 2007 Submitted: April 18, 2008 HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: May 23, 2008 Mary Lou McLean (Claimant) petitions for review of an adjudication of the Workers Compensation Appeal Board (Board) affirming a decision by a Workers Compensation Judge (WCJ) that he lacked jurisdiction to hear Claimant s appeal of a utilization review determination. In this appeal we consider whether a WCJ has jurisdiction to review the reasonableness and necessity of Claimant s medical treatment where, as here, Claimant s provider failed to provide medical records to a utilization review organization (URO) but a written peer review report is nevertheless prepared. For the reasons set forth below, we affirm. On September 14, 1996, while employed by Road Toad, Inc. (Employer), Claimant suffered a head injury in the form of a subdural hematoma in the right temporal region. Employer issued a notice of compensation payable accepting Claimant s injury as work-related. Dr. Laura Shymansky, M.D., who is board-certified in physical medicine and rehabilitation, and Jerome J. Deriso, M.P.T., a licensed physical therapist, treated Claimant for her work-related head injury. On August 12, 2004, Employer filed a request for utilization review of the physical therapy treatment provided by Deriso, from June 16, 2004, and forward. Employer s request for utilization review also stated that Claimant was receiving other treatment with Dr. Shymansky. The Bureau of Workers Compensation assigned Employer s request to a URO, Tx Review, Inc. On August 27, 2004, the URO sent a letter to Deriso and Dr. Shymansky, by certified mail, requesting Claimant s medical records.1 On August 31, 2004, the URO received a signed certified return receipt card from Deriso s office. When it did not receive the medical records requested from Deriso, the URO contacted Deriso s office on September 10, 2004, and again on September 24, 2004. At that time, the URO reminded Deriso s office that it had 30 days from the request of August 27, 2004, to submit Claimant s records and that said medical records must include a signed verification of authenticity form. After 5:00 p.m. on September 29, 2004, Deriso s office faxed a set of medical records without a signed verification of authenticity form. Because the medical records did not include the signed verification, the URO returned the medical records to Deriso s office.2 1 The URO timely received Dr. Shymansky s medical records. The applicable regulation provides, in pertinent part, as follows: The provider under review, or his agent, shall sign a verification that, to the best of his knowledge, the medical records provided constitute the true and complete medical chart as it relates to the employe s work-injury. 34 Pa. Code §127.459(c). 2 2 Although the URO was unable to obtain Deriso s medical records, the URO assigned Employer s request to a reviewing physical therapist, Richard Holzworth. He issued a report that stated, in pertinent part, as follows: According to the records of Dr. Laura Shymansky ¦ at the time of Dr. Shymansky s initial visit on 06/10/1997 ¦ [she] recommended that [Claimant] continue with the physical therapy, occupational therapy and speech over the next several weeks, if not months ¦. *** Additionally, it should be noted that I did not receive any physical therapy notes from the provider under review, Jerome Deriso, PT with this request for review ¦. *** The provider under review, Jerome Deriso, PT did not request that I contact him ¦. *** Because the [Claimant] has not shown improvement in the last seven years despite the Botox injections followed by physical therapy, and because there are no physical therapy notes from the provider under review, Jerome Deriso, PT for me to evaluate to support the treatment under review, all physical therapy services would not be reasonable and necessary from 06/16/2004 and continuing. Reproduced Record 55a-56a (R.R. ___). Based on this report, the URO issued a determination concluding that Deriso s physical therapy treatment was not reasonable and necessary after June 1, 2004. Claimant petitioned for a WCJ s review of the URO s determination. Employer moved to have Claimant s petition dismissed on the theory that the WCJ lacked subject matter jurisdiction. Arguments were held before WCJ Irving L. 3 Bloom. On October 6, 2006, the WCJ issued a decision granting Employer s motion to dismiss, relying upon County of Allegheny (John J. Kane Center-Ross) v. Workers Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005).3 The Board affirmed and the present appeal followed.4 Claimant raises one issue for this Court s review: whether a WCJ has jurisdiction to review the reasonableness and necessity of Claimant s treatment where Claimant s provider has failed to provide medical records to a URO but a written report was nevertheless prepared. In support, Claimant argues that Geisler, on which the WCJ and Board relied, is factually distinguishable and does not support the WCJ s decision.5 Claimant further argues that the records of Deriso were, in fact, received by the URO but returned on a technicality. Finally, Claimant argues that the WCJ had jurisdiction over Claimant s review petition because the URO assigned the records to 3 The WCJ s entire decision consisted of the following order: Based on the holding in County of Allegheny (John J. Kane Center-Ross) and UPMC-Work Partners v. Workers Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005), the Utilization Review is dismissed on motion of counsel for defendant. The record is closed and all papers are returned to the Bureau. Reproduced Record 25a (R.R. ___). 4 This Court s review of an adjudication of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, constitutional rights were violated, or errors of law were committed. Borough of Heidelberg v. Workers Compensation Appeal Board (Selva), 894 A.2d 861, 863 n.3 (Pa. Cmwlth. 2006). 5 In Geisler, the URO determined that the provider s treatment was neither reasonable nor necessary because the provider failed to supply the requested medical records, and the claimant appealed to the WCJ. The WCJ allowed the claimant to present the records and testimony on whether the treatment was reasonable and necessary and found that it was. The employer appealed to this Court, arguing that the WCJ lacked jurisdiction to review the merits of the URO determination. We agreed with the employer, holding that if a report by a peer physician is not prepared because the provider has failed to produce medical records to the reviewer, the WCJ lacks jurisdiction to determine the reasonableness and necessity of medical treatment. Geisler, 875 A.2d at 1228. 4 a peer provider, and the peer provider s report failed to select the option of failure to produce medical records as the reason for finding that the treatment under review was not medically necessary.6 This case is governed by Stafford v. Workers Compensation Appeal Board (Advance Placement Services), 933 A.2d 139 (Pa. Cmwlth. 2007). In Stafford, the employer requested a utilization review of the medical treatment provided to the claimant, and the Bureau assigned the employer s request to a URO. Although the URO was unable to obtain the medical records from the provider under review, the URO assigned the matter to a reviewing physician, who found that the treatment under review was not reasonable and unnecessary. The conclusion was based upon the absence of records, not a review of the substantive merits of the treatment. The claimant petitioned for a WCJ s review of the URO s determination. The WCJ held that, notwithstanding the existence of a peer review report, he lacked subject matter jurisdiction based upon Geisler. The claimant appealed, and the Board affirmed. In Stafford, this Court applied Geisler and held that the URO s determination is non-reviewable in the absence of a peer review evaluation that is based upon the provider records. This Court reasoned that without a peer review report that evaluates the substantive merits of the treatment under review, there is nothing for a WCJ to review.7 6 The Utilization Review Determination Face Sheet provides an option to select a box indicating that the care under review was not reasonable and necessary pursuant to 34 Pa. Code §127.464 relating to effect of failure of the provider under review to supply records. R.R. 9a. 7 This Court noted an exception to this rule as follows: The only exception to this principle is where a claimant or a provider asserts that medical records were timely provided to the URO in accordance with the URO s request. See, Gazzola v. Workers Compensation Appeal Board (Ikon Office Solutions), 911 A.2d 662 (Pa. Cmwlth. 2006). (Footnote continued on the next page . . .) 5 Here, Deriso did not produce Claimant s medical records as requested. The URO s assignment to a reviewing physical therapist was not necessary because the regulation at 34 Pa. Code §127.464 precludes a substantive review if the provider under review fails to provide medical records to the URO.8 Although the reviewing physical therapist issued a report concluding that Deriso s treatment was neither reasonable nor necessary, his evaluation was not based upon the records of the provider of the treatment under review. In absence of a peer review report evaluating the substantive merits of the treatment under review, the WCJ lacked subject matter jurisdiction. Stafford, 993 A.2d at 143. For these reasons, we affirm the Board. ______________________________ MARY HANNAH LEAVITT, Judge (continued . . .) Stafford, 933 A.2d at 143 n.7. 8 The regulation states: (a) If the provider under review fails to mail records to the URO within 30 days of the date of 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 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. 34 Pa. Code §127.464. 6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mary Lou McLean, Petitioner v. Workers Compensation Appeal Board (Road Toad, Inc.) Respondent : : : : : : : : No. 2309 C.D. 2007 ORDER AND NOW, this 23rd day of May, 2008, the order of the Workers Compensation Appeal Board, dated November 20, 2007, in the above-captioned matter is hereby AFFIRMED. ______________________________ MARY HANNAH LEAVITT, Judge

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