• Losing Sight of Act 44: Judicial Rollback of Legislative Medical Savings
  • December 21, 2009 | Author: Robert P. Schenk
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Philadelphia Office
  • In 1993, Act 44 made significant changes to the Pennsylvania Workers' Compensation Act. The legislative intent of the Act 44 was primarily to reduce spiraling health care costs. A fee cap and a peer review system was put into place to review the reasonableness and necessity of medical treatment provided to claimants. In the 14 years that have passed since the enactment of Act 44, appellate cases have watered down the ability of employers and insurers to control costs to the point where the Act may no longer be effective. At this point, I think it is necessary to review whether the Appellate Court's decisions have been reasonable.

    Today, the Commonwealth Court is changing the expectations of what is reasonable and necessary medical care. It has established that medical treatment is reasonable and necessary even though it is merely palliative in nature and produces no lasting benefits. Trafalgar House v. WCAB (Green), 784 A.2d 232 (Pa. Cmnwlth. 2001) and Glick v. WCAB (Concord Beverage Co.), 750 A.2d 9149 (Pa. Cmnwlth. 2000). According to the law, medical treatment is reasonable and necessary even though it is designed only to manage the claimant's symptoms rather than cure or permanently improve the condition. Cruz v. WCAB (Philadelphia Club), 728 A.2d 413 (Pa. Cmnwlth. 1999). But see Jackson v. WCAB (Boeing), 825 A.2d 766 (Pa. Cmnwlth. 2003). In Pennsylvania, medical treatment is reasonable and necessary even though it does not increase a claimant's physical capacities. Central Highway Oil v. WCAB (Mahmod), 729 A.2d 106 (Pa. Cmnwlth. 1999)

    What kind of treatment fits these criteria? The court's decisions have looked at many different types, but the simple modality of a foot massage will put it into perspective as it clearly meets all of the criteria to be reasonable and necessary. Of course, the foot massage must be administered by a duly licensed medical professional. See, Boleratz v. Workers' Comp. Appeal Bd. (Airgas, Inc.), 932 A.2d 1014, 1018 (Pa. Commw. Ct. 2007). In finding this type of medical care to be reasonable and necessary, the court's decisions obligates the employer to pay for the treatment. Thus, the medical treatment, and costs, can continue, as in the case below, for 19 years or so after the injury. Even with the bar set this low, treatment is still found to be unreasonable and unnecessary by peer review doctors. When this happens, the claimant typically appeals, asking the court to review the medical opinion with the more discerning Judicial Opinion. However, the Commonwealth Court may have recently given the claimant a new opportunity to avoid the cost (and risk) of going to court. All they have to do is go to a new doctor. Such was the case of Ann Schenck.

    In Ann Schenck v. WCAB (Ford Electronics), No. 1011CD 2007 Commonwealth Court; 2007 Pa Cmnwlth Lexus 653, the claimant sustained the injury of tenosynovitis while working for Ford Electronics on April of 1985. The injury was accepted as compensable, and the claimant received benefits for both wage loss and medical treatment. The wage loss benefits were resolved via a commutation. Reasonable, necessary and related medical expenses were left open. Eleven years after her injury (in 1996), the employer filed a Utilization Review request regarding the medical treatment the claimant received from an orthopedic surgeon, Dr. Zaslow. The reviewer (Dr. Anton) found Dr. Zaslow's treatment to be unreasonable and unnecessary since this orthopedic surgeon was not providing any orthopedic care. Dr. Anton felt that Dr. Zaslow's additional psychological input and advocacy on behalf his patient was "admirable" but similarly unreasonable and unnecessary.

    The claimant filed a Petition to Review Dr. Anton's determination, and an agreement was reached between the parties and adopted by the Judge. The parties agreed that the findings of Dr. Anton would be adopted with respect to Dr. Zaslow's treatments, with one exception. That being, the claimant would be allowed to visit Dr. Zaslow once per month but only through July 15, 1997. The parties had taken control of what was reasonable and necessary themselves in the spirit of cooperation and common sense. That spirit would fade, and seven years later (19 years since the injury) in 2004, the claimant returned to Dr. Zaslow's office with the intention of obtaining treatment. The seven-year gap is not addressed by the court, nor does the court address the claimant's return, despite her agreement. Upon her return, Dr. Zaslow was no longer at that location; however, Dr. Lance Yarus was present.

    Dr. Yarus, like Dr. Zaslow, was an orthopedic surgeon, and he administered the same treatment to the claimant, which had been found to be unreasonable and unnecessary seven years before. The employer declined to pay for this treatment based on the prior Utilization Review determination. This lead to the claimant filing a Penalty Petition. The Judge found that the former Utilization Review determination of Dr. Anton was directed to the reasonableness and necessity of the treatment. The judge did not decide whether Dr. Yarus stepped into Dr. Zaslow's shoes, although a reasonable person could infer that. But he did render the same or similar treatment and the employer's decision not to pay was reasonable, sensible and understandable. The judge found that the employer's refusal to pay was not a violation of the Act. The Workers' Compensation Appeal Board agreed and saw no significance to the fact that the claimant was treated by Dr. Yarus rather than Dr. Zaslow. The Board found that to require the employer to pay for treatment previously determined to be unreasonable and unnecessary, or to seek additional review simply because the claimant switched doctors, would be unduly burdensome. However, the Commonwealth Court disagreed. The Commonwealth Court remanded the case back to the Workers' Compensation Judge for the determination of penalties, in addition to the cost of the health care.

    It would seem that the Commonwealth Court's decision in the case of Schenck undermines the legislative intent of Act 44, which was to control medical costs. The practical result of this decision is such that a claimant merely needs to switch treating physicians to avoid the ramifications Act 44. If a chiropractor's care is deemed unreasonable and unnecessary, the claimant can switch to a new chiropractor in order to continue treatment, without the need for judicial review. Similarly, the claimant taking narcotic pain medication which is deemed to be medically unnecessary and unreasonable need only to switch to a new physician to write that prescription, since it is the provider under review, not the treatment. This does not save money, nor does it benefit either the claimant or the employer. The claimant will not get better since, by definition, the treatment does not need to cure them. The employer will have to continue to pay for this treatment, or incur the cost of the review. Far from controlling costs, the court's decision has ensured a revolving door of health care.