Payment of Medical Expenses in Workers' Compensation Claims

By Marla A. Joseph, Esquire

I. Scope of Employer’s Liability

When determining an employer’s liability for medical bills, it is crucial to examine the controlling Bureau document that sets forth the compensable injury. Too often, a Claimant is lulled into a false sense of security when her employer pays for medical bills unrelated to the compensable injury; however, an employer’s voluntary payment of an employee’s medical expenses 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). In Bailey, the court reasoned that to hold otherwise would “force employers to abandon a long established practice that benefits injured employees”.

In Securitas Security Services, USA, Inc. vs. WCAB (Schuh), 16 A.3d 1221 (Pa. Cmwlth. 2011), the claimant’s “lower back strain” was listed as a compensable injury in her employer’s Notice of Temporary Compensation Payable, which subsequently converted to a Notice of Compensation Payable (NCP). Although the employer never acknowledged that the claimant’s psychological injuries were compensable, it filed a Utilization Review (UR) request, seeking prospective review of claimant’s psychological treatment and did not appeal the UR Determination, which found this care to be reasonable and necessary. The Claimant subsequently filed a review petition seeking to expand the employer’s liability to include her depression and anxiety; however, she failed to present any evidence in support of her petition. Instead, the Claimant relied solely upon the argument that the employer was collaterally estopped from denying liability for her psychological injuries when it failed to appeal the UR determination, which had found this care to be reasonable and necessary. The WCJ granted the Claimant’s review petition and accepted the Claimant’s argument that “by availing itself of the UR process, Employer effectively acknowledged that Claimant’s psychological treatment was related to her work injury”. Id. at 1223. The WCAB affirmed this portion of the WCJ’s decision, concluding that the Employer had “effectively acknowledged liability for Claimant’s psychological condition by paying for related medical expenses and taking advantage of the Act’s UR scheme. Id.

The Commonwealth Court reversed the WCAB, finding that the doctrine of collateral estoppel did not apply. In reaching this decision, the court explained:

The critical issue presented by Claimant's review petition is whether Claimant's depression and anxiety are causally related to the 2004 work-related back injury. That issue was not identical, litigated, essential or even relevant to the UR determination. In fact, in relevant part, 34 Pa.Code § 127.406 (emphasis added) expressly provides that:

(a) UROs shall decide only the reasonableness or necessity of the treatment under review.

(b) UROs may not decide any of the following issues:

(1) The causal relationship between the treatment under review and the employe's work-related injury.

Accordingly, the WCJ erred in concluding that collateral estoppel is applicable here. See Bloom v. Workmen's Compensation Appeal Board (Keystone Pretzel Bakery), 677 A.2d 1314 (Pa.Cmwlth.1996).[8]

Id. at 1224.

II. Tension between the Humanitarian Purposes of the Act and a Windfall

A. Decisions supporting the remedial nature and humanitarian purposes of the Act.

In Griffiths vs. WCAB (Seven Stars Farm, Inc.), 943 A.2d 242 (Pa. 2008), the court had two significant holdings, which remain just as relevant today. The Claimant, a C-5 quadriplegic confined to a wheelchair, needed a van with a wheelchair lift and other related modifications in order to be transported. Although the employer paid for the 80% of the Claimant’s initial van rental costs and modifications to the van he ultimately purchased, the employer would not pay for the base value of the van. On appeal, the Claimant argued: 1) the cost of the van itself, not only the necessary conversions, is an orthopedic appliance pursuant to Section 306 (f.1)(1)(ii) of the Workers’ Compensation Act, 77 P.S. Section 531(1)(ii); and 2) the cost containment provisions of Section 306 (f.1)(3)(i) only apply to health care providers and not orthopedic appliances; thus, the employer should pay for the full rental costs, purchase price and retrofitting of his van.

Regarding the Claimant’s first argument, the Employer responded that such a stretch of the definition of “orthopedic appliances” would be better addressed by the Legislature, rather than expanding the definition to comply with the humanitarian and remedial nature of the Act. Id. at 250. However, the court rejected the Employer’s argument, holding that a van, and not merely the wheelchair lift and modifications installed in the van, may qualify as an orthopedic appliance pursuant to Section 306 (f.1)(1)(ii). It reasoned:

The term "orthopedic appliance" obviously is a broad one; indeed, it is one that no doubt was made deliberately general to account for innovations in the treatment, rehabilitation, and support of work injuries. Considering the remedial nature of the Act, and its humanitarian purpose, we conclude that, in proper circumstances, a van modified to make it operable by a person who has suffered a devastating work injury, and who otherwise would not be able to operate a motor vehicle, qualifies as an orthopedic appliance. Depending upon the circumstances of the individual, a van (indeed any vehicle) could be viewed as a necessity, a luxury, or something in between. What matters here is that appellant does not seek the modified van at issue as a "lifestyle choice," or for the reasons other people might purchase a van or a sport utility vehicle. For appellant, the need for the modified van is a direct result of his work injury and, in his circumstances at least, it directly addresses the lack of mobility caused by that work injury. Without his wheelchair, appellant would be confined to a bed or a room; without a van equipped to handle his wheelchair, appellant would be confined to the limited area he could travel in that wheelchair. Whatever a van may represent to others fortunate to have unrestricted powers of ambulation, in circumstances such as these, the van indeed is an appliance that addresses and is directly responsive to the permanent orthopedic issue brought on by appellant's work injury.

Moreover, there is some force in appellant's argument that a modified van is critical to his ongoing care and health, as he must travel for the follow-up medical care that has become a permanent necessity in his condition. Just as importantly, there is force in appellant's argument that the remedial purposes of the Act are not satisfied by the narrowest approach to what it is that will make an injured person nearer to whole. The wheelchair and the modified van appellant has sought from Employer do not begin to "compensate" appellant for the quadriplegia that resulted from his work injury. Appellant has lost the ability to stand, to walk, to run, to operate an ordinary vehicle, to ride in a friend's car, to hail a cab. He has lost the free mobility he had, and that others take for granted. To a person in appellant's condition, the van is crucial to restore some small measure of the independence and quality of life that existed before the work injury. Because the present restrictions on appellant's life and mobility were caused by his service to his employer, and a modified van directly addresses and helps to remediate that very harm, we conclude that a wheelchair accessible van qualifies under the broad definition of orthopedic appliances employed in the Act.

Id. at 255-256. (Emphasis added).

Regarding the claimant’s second argument, the Griffiths court further 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. Accordingly, the court determined that the employer was responsible for the 100% of the van rental costs, purchase price and modifications. Id. at 260.

Even before Griffiths, supra, the courts have been sympathetic to injured workers with extraordinary injuries. In Tobias vs. WCAB (Nature’s Way Nursery, Inc.), 595 A.2d 781 (Pa. Cmwlth.1991), the claimant sustained a severe spinal injury, which caused him to sustain ejaculatory dysfunction, but did not prevent him from working. In a pro se petition, the Claimant sought payment of his and his wife’s medical expenses related to his artificial insemination. The court held that the employer was responsible for both the Claimant’s and his wife’s medical expenses and reasoned as follows:

The record reflects, and we so hold, that Claimant's medical expenses were necessary and reasonable because both of the medical reports confirm that Claimant's sexual functioning and concurrent natural ability to father children were impaired by his work-related injury and that in order to enable him to carry out his inherent right to attempt to have children an artificial insemination procedure was necessary. We believe that the procedure chosen is merely the method for replacing a lost body function, in some respects it is even analogous to a customized prosthesis. See generally Bowlaway Lanes v. Workmen's Compensation Appeal Board (Caparosa), 90 Pa.Commonwealth Ct. 534, 496 A.2d 99 (1985).

. . . [I]t goes without saying that this procedure cannot be carried out without the participation of Claimant's spouse who must be considered with him in the act of procreation. We have often held that expenses, even if not an actual part of the treatment, are compensable if they are incidental to the treatment. See e.g., Roadway Express, Inc. v. Workmen's Compensation Appeal Board (Ostir), 104 Pa.Commonwealth Ct. 7, 520 A.2d 1261 (1987). The participation of Claimant's spouse in the procedure is not merely incidental but essential; without her participation, the treatment would serve no purpose. We thus conclude that reasonable and necessary expenses for the procedure, which by its very nature requires two, are covered under the Act.

Id. at 786. (Emphasis added.)

B. Decisions supporting the avoidance of a windfall.

On the opposite side of the pendulum, in Commonwealth of Pennsylvania Dept. of Transp. and CompServices, Inc. vs. WCAB (Clipinger), 38 A.3d 1037 (Pa. Cmwlth. 2011), the Claimant sustained a lower back injury described by the WCJ as “spinal stenosis, herniated disc at L4-5, which was acknowledged the by the employer in a Supplemental Agreement.” After undergoing 2 surgeries, the Claimant testified that his condition deteriorated causing him to suffer a permanent impairment form the waist down, which he described as “paralysis, weakness, loss of sensation, difficulty with balance and partial bowel and bladder dysfunction”. Id. at 1040.

“Claimant’s Physician recommended that he obtain a therapeutic pool with a treadmill, which would allow his body to be in the water as he exercises and uses his legs. Claimant's Physician opined the pool would help manage Claimant's pain. He further opined aquatic therapy is reasonable and necessary and causally related to Claimant's work injury, and he should perform aquatic therapy five days a week, one hour at a time, for the rest of his life. Claimant's Physician opined it would be more beneficial and safer for Claimant to perform aquatic therapy at home because it would be risky for him to walk around a gym on slippery floors. There is also a possibility that if Claimant used a public facility, someone could bump into him or he might have to move quickly, resulting in a fall and possibly a very severe injury.” Id.

The Claimant filed a review petition, among other petitions, wherein he sought the employer’s payment for the installation of an aquatic therapy pool at his home and an addition to the home to accommodate the pool. The court distinguished this case from Griffiths, supra, emphasizing that the claimant in the instant case was not wheelchair-bound, continues to perform full-time modified duty work and was sufficiently mobile to work full-time and to travel to a physical therapy facility to receive aquatic therapy. Furthermore, the court stated:

Second, unlike in Griffiths, where the van was “indispensable," here a viable alternative to a new in-home pool exists. Indeed, Claimant receives aquatic therapy treatment at a nearby facility, id., and he did not, as of the time of the WCJ hearings, encounter a problem with transportation to the facility. R.R. at 153a. Further, these facilities have on-staff physical therapists. R.R. at 147a, 152a, 157a-58a. Moreover, in the UR determination, the reviewer determined an in-home therapy pool was reasonable and necessary, “if alternative means were not available.” F.F. No. 42 (emphasis added). By Claimant's own testimony, alternative means exist. R.R. at 119a-20a.

Id. at 1044.

Therefore, the court vacated the portion of the WCJ’s decision requiring the employer to pay for the in-home pool because “it was unclear whether the circumstances support the extraordinary relief of installation of a new in-home pool as well a new addition to Claimant’s home to house the pool”. Id. at 1046. Citing Griffiths, the court emphasized that “the existence of alternative means and the concern for ‘windfalls’ are clearly matters to be evaluated”. Id. at 1045.

Similarly, although unreported, see Rundle vs. WCAB (Lawn Tech, Inc.), No. 1227 C.D. 2012 (Pa. Cmwlth. 2013), holding that it was unreasonable and unnecessary for the employer to pay for vehicle with automatic transmission when the claimant own a vehicle with a stick shift because her work injury made shifting gears painful.

In conclusion, while the Commonwealth Court has allowed for extraordinary medical treatment consistent with the remedial nature and humanitarian purposes of the Act, it is also mindful of the claimant gaining a windfall. The Claimant’s practitioner seeking such relief should establish an extensive factual and medical record demonstrating the severity of a claimant’s injuries, functional limitations and the inability of alternative means to fulfill the necessary treatment. To the contrary, the employer should emphasize facts that demonstrate a windfall, i.e. alternative methods of treatment that are available and the mobility and functionality of the Claimant.

III. Penalties for Employer’s Unilateral Suspension of Benefits

In Cmwlth. of Pa. Dept. of Transportation and CompServices, Inc. vs. WCAB (Clipinger), 38 A.3d 1037 (Pa.Cmwlth. 2011), the court provided a succinct time-line for an employer’s payment obligations in accordance with the Act, when it stated:

Section 306(f.1)(5) of the Act states, in pertinent part: ‘All payments to providers for treatment provided pursuant to this act shall be made within thirty (30) days of receipt of such bills and records unless the employer or insurer disputes the reasonableness or necessity of the treatment provided pursuant to paragraph (6).’ (Emphasis added). Further, Section 127.208(e) of the Regulations states, in pertinent part: ‘The insurer's right to suspend payment shall further continue beyond the UR process to a proceeding before a workers' compensation judge, unless there is a UR determination made that the treatment is reasonable and necessary.’ (Emphasis added). Moreover, Section 127.208(g) of the Regulations states, in pertinent part: ‘If a URO determines that medical treatment is reasonable or necessary, the insurer shall pay for the treatment. Filing a petition for review before a workers' compensation judge, does not further suspend the obligation to pay for the treatment once there has been a determination that the treatment is reasonable or necessary. ’ (Emphasis added). While Section 306(f.1)(5) of the Act unambiguously provides for suspension of payment to medical providers if there is a dispute concerning the reasonableness and necessity of treatment, Sections 127.208 (e) and (g) of the Regulations just as clearly provide that such suspension of payment ends if there is a UR determination that the treatment is reasonable and necessary. . . .

Scranton Sch. Dist. v. Workers' Comp. Appeal Bd. (Carden), 994 A.2d 1162, 1164-65 (Pa.Cmwlth.2010).

In accordance with Section 306(f.1)(1) of the Act, 77 P.S. § 531(1), a workers’ compensation carrier or employer has an obligation to pay for medical treatment related to compensable injuries and provides in pertinent part:

(1) (i) The employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers, . . . medicines and supplies, as and when needed.

However, in order for this burden to be triggered, the claimant and her medical providers must comply with the billing requirements of the Act. Specifically, 77 P.S. § 531(5) provides, in relevant part:

The employer or insurer shall make payment and providers shall submit bills and records in accordance with the provisions of this section. (Emphasis added.)

34 Pa.Code Section 127.201 sets forth the requisite documentation that a provider must submit and provides, in pertinent part:

34 Pa.Code § 127.201. Medical bills-standard forms.

(a) 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. If HCFA accepts a form for submission of Medicare claims by a certain provider, that form shall be acceptable for billing under the act.

(b) Cost-based providers shall submit a detailed bill including the service codes consistent with the service codes submitted to the Bureau on the detailed charge master in accordance with § 127.155(b) (relating to medical fee updates on and after January 1, 1995--outpatient acute care providers, specialty hospitals and other cost-reimbursed providers), or consistent with new service codes added under § 127.155(d) and (e).

34 Pa. Code Section 127.201, as cited in Seven Stars, Inc. vs. WCAB (Griffiths), 935 A.2d 921 (Pa.Cmwlth. 2007).

In addition, 34 Pa. Code Section 127.203 provides for the requisite medical reports that health care providers should submit and provides:

§ 127.203. Medical bills—submission of medical reports.

(a) Providers who treat injured employees are required to submit periodic medical reports to the employer, commencing 10 days after treatment begins and at least once a month thereafter as long as treatment continues. If the employer is covered by an insurer, the provider shall submit the report to the insurer.

(b) Medical reports are not required to be submitted in months during which treatment has not been rendered.

(c) The medical reports required by subsection (a) shall be submitted on a form prescribed by the Bureau for that purpose. The form shall require the provider to supply, when pertinent, information on the claimant’s history, the diagnosis, a description of the treatment and services rendered, the physical findings and the prognosis, including whether or not there has been recovery enabling the claimant to return to pre-injury work without limitations. Providers shall supply only the information applicable to the treatment or services rendered.

(d) If a provider does not submit the required medical reports on the prescribed form, the insurer is not obligated to pay for the treatment covered by the report until the required report is received by the insurer.

Typically, when the worker’s compensation carrier or employer denies payment for bills related to a Claimant’s compensable injuries, it stands behind the aforementioned regulations and argues that the medical providers failed to submit their medical bills on the proper Department form (Form LIBC 9) and/or the proper Medicare HCFA Forms. This was the employer’s precise defense in Seven Star Farm, Inc. vs. WCAB (Griffiths), 935 A.2d 921 (Pa. Cmwlth. 2007). However, in Seven Star Farm, supra, the court rejected this argument, holding that 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. Id. at 926. See also Kuemmerle v. Workers' Compensation Appeal Board (Acme Markets, Inc.), 742 A.2d 229 (Pa.Cmwlth.1999), holding that a provider's failure to submit required written reports to the insurance carrier did not excuse an employer from penalties for failure to pay bills because it did not require medical reports in all instances for payment of medical services.

In fact, in the context of reimbursement for a Claimant’s prescription medications, the courts have consistently held that when an employer had not previously required medical reports and the claimant had submitted proper documentation of out-of-pocket payments for work-related prescription medications, then the employer may be liable for a penalty when it denies payment of these prescriptions. See Clippinger, supra, finding that the employer was liable for a penalty when it failed to reimburse Claimant’s prescriptions despite proper documentation by the claimant; and Seven Stars Farm Inc., supra, affirming the WCJ’s 50% penalty and $4,000 quantum meruit fee for the employer’s failure to pay for Claimant’s home health care aid services, medical supplies and prescriptions previously found to be reasonable and necessary, even though the related bills were not submitted with the proper Bureau and Medicare forms.

Thus, substance over form seems to be the theme when analyzing an employer’s obligations for payment of medical bills. While an employer may escape penalties if it never accepted payment of medical bills for compensable injuries that were improperly submitted without the requisite LIBC 9 and HCFA forms, if it previously paid similar bills without mandating the proper HCFA and LIBC 9 forms, it runs the risk of being assessed with penalties and or and assessment of quantum meruit attorney’s fees for suddenly changing the rules.

IV. Palliative Treatment

Another increasingly controversial issue involves the use of prescription pain medications. 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, 2014. Federal Register Volume 79, Number 163 (Friday, August 22, 2014). http://www.deadiversion.usdoj.gov/fed_regs/rules/2014/fr0822.htm. Claimants’ practitioners may have seen a direct correlation between the date this reclassification went into effect and the increased number of phone calls from their clients taking these medications. The following demonstrates the broad impact this reclassification has on patients, doctors and distributors:

  • 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 will have to be seen by a doctor for a new prescription. Before this change, refills for HCPs such as Vicodin could be called in to a pharmacy.


  • Rescheduling will also change the process required to order and transfer HCPs from a distributor to a pharmacy. For Schedule III drugs, DEA registrants could transfer HCPs through simple invoices. Now all orders must be submitted on the official DEA Form 222, and separately from the pharmacy's usual bulk order of CIII-V drugs. When distributing, prescriptions must be defaced when filled and (depending on the pharmacy) require double counts of the pills filled and presentation of valid customer identification.


  • Further, the new classification will place added burdens on manufacturers and distributors who will have to store HCPs in secure vaults (1301.72) rather than locked cages and will have to label all HCPs with a “C-II” designation. The DEA noted, however, that the packaging and labeling requirements applicable to manufacturers and distributors do not apply to dispensers such as pharmacies. The DEA specified that dispensers with HCPs in commercial containers labeled as Schedule III may continue to dispense these medications after the effective date of the final rule. Further, only manufacturers and distributors, and not retail pharmacies, are required to place Schedule II drugs in a locked vault. Retail pharmacies may disperse HCPs throughout their stock of non-controlled substances in a manner so as to obstruct the theft or diversion of the HCPs.

http://www.policymed.com/2014/09/deaheavyrestrictionsonvicodin.html

On a State level, the Pennsylvania Medical Society and Governor Corbett recently developed voluntary prescribing guidelines for opioid treatment for chronic non-cancer pain. On the Pennsylvania Medical Society’s web site it emphasized:

These guidelines, drafted by the state and adopted by the PAMED Board at its meeting on May 21, 2014, were announced at a joint press conference held by the state and PAMED on July 10. They are voluntary and not intended to replace a physician’s clinical judgment. They encourage health care providers to incorporate several best practices when caring for patients receiving opioids for the treatment of chronic non-cancer pain.

http://www.pamedsoc.org/opioidguidelines.

The PA Medical Society provided the following highlights of the guidelines providers should follow:

  1. Conduct and document a history, including documentation and verification of current medication and a physical exam, before initiating chronic opioid therapy.

  2. Discuss the risks and potential benefits associated with treatment with the patient so that he or she can make an informed decision regarding treatment.

  3. 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.

  4. Carefully consider if doses above 100 mg./day of oral morphine or its equivalent are indicated.

  5. Reassess patients on chronic opioid therapy periodically and as warranted by changing circumstances.

  6. 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.

  7. Carefully determine if the risk associated with chronic opioid therapy outweigh document benefit in patients who have engaged in aberrant drug-related behaviors.

  8. 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.

  9. Understand current federal and state laws, regulatory guidelines, and policy statements that govern the use of chronic opioid therapy for chronic non-cancer pain.

See more at: http://www.pamedsoc.org/opioidguidelines#sthash.1YbHflMq.dpuf

It is important to consider the aforementioned criteria when litigating Utilization Review Determinations involving prescription pain medications, particularly those now categorized as Schedule II medications. For injured workers with chronic pain, palliative treatment is often their only form of relief. Given the closer scrutiny of medical providers and their patients who are taking Hydrocodone combination products, the providers should document detailed histories of the medications and dosages they have prescribed, perform blood and urine testing to ensure that their patients are not abusing the prescribed drugs, periodically assess the appropriateness of the medications prescribed based upon the changing circumstances of their patients, and consider referrals to psychiatrists drug rehabilitation facilities, when appropriate.

In addition to pain medications, claimants undergo multiple forms of conservative treatment that may not cure their condition, but offer significant pain relief. This treatment, often referred to as “palliative”, has recently been considered by the courts and is a growing area of contention. In the recent case of Womack vs. WCAB (The School District of Phila.), 83 A.3d 1139 (Pa. Cmwlth. 2014), “a WCJ issued a decision and amended decision, finding that claimant sustained the following injuries during her employment with the Philadelphia School District (Employer): herniated discs of the lumbar spine, aggravated by Claimant's work injuries, which consists of a right medial meniscal tear, right shoulder pain, and chronic lumbar pain with anxiety and depression.” Id. at 1139. The employer filed a Utilization Review request, challenging various forms of chiropractic treatment, which the WCJ ultimately determined to be unreasonable and unnecessary.

The Claimant appealed the WCJ’s decision on multiple grounds. With respect to the issue of palliative treatment, relying upon Jackson v. Workers' Comp. Appeal Bd. (Boeing), 825 A.2d 766, 771 (Pa.Cmwlth.2003), the Claimant contended that the Employer failed to satisfy its burden of proof that the palliative treatment was not reasonable and necessary. Id. at 1151. The Claimant cited Jackson, supra, for the proposition that "Medical treatment may be reasonable and necessary even when it is designed to manage [a] claimant's symptoms rather than to cure or permanently improve the underlying condition." The Womack court rejected the Claimant’s argument, stating:

Thus, although it is true that palliative treatment may be reasonable and necessary under the Act, the Courts have also recognized that a lack of progress in pain improvement is a factor that the WCJ may consider in making the factual determination of whether palliative care is reasonable and necessary.

Id. at 1151.

The court reasoned:

[I]n reviewing Provider's treatments as palliative, the WCJ reasonably determined that the treatments were not reasonable or necessary based upon the lack of any information in the medical reports indicating Provider's plans to address Claimant's pain.” Id. at 1153. The court further noted that the WCJ had substantial and competent evidence sufficient to rely upon the utilization reviewer’s following observations:

(1) the actual location of Claimant's injuries and the lack of information in the records specifying the location of treatment; (2) the fact that treatment for Claimant's knee injury should be limited to a " ten-to-fourteen day trial of care, three-to-five times per week, which should lead to an independent program of pain control and exercise; " and (3) the lack of " clinical objective outcomes," " written treatment plan with specific therapeutic goals," and " questionnaires or pain diagrams to show any change in Claimant's pain levels." Claimant herself, in response to questions posed on cross-examination in her deposition, acknowledged that she had not been asked before, during, or after treatments (which admittedly occurred apparently under other providers whose treatment was previously the subject of UR review) about her level of pain.

Id. at 1152.

In another recent, yet unreported case, Brackin vs. WCAB (Simon & Schuster), No. 1949 C.D. 2013 (Pa. Cmwlth. 2014), the WCJ determined all pain management treatment rendered by Claimant's treating physician, with the exception of one prescription drug, was not reasonable or necessary. Claimant argued that the WCJ erred by not determining the rejected treatment is palliative and, thus, reasonable and necessary. Id. at p. 1. With regard to prescription therapy, the Reviewer indicated treatment with opioid analgesics, such as Lorcet, in chronic back pain syndromes is medically reasonable and necessary to the extent they are effective. Use of Lorcet two to three times daily is minimally effective and, therefore, is reasonable and necessary. However, Reviewer reported there is no documentation that Ambien is effective in the treatment of Claimant's sleep disturbance, nor is there any documentation that the use of Xanax is effective for the treatment of Claimant's anxiety. Therefore, Reviewer opined ongoing use of Ambien and Xanax is not reasonable and necessary. F.F. Nos. 2(j), (k). Id. at p. 2.

The court upheld the WCJ’s decision, concluding that the record adequately supported the WCJ’s findings. The court reasoned:

Here, the WCJ determined the treatments provided by Claimant's Physician were not reasonable or necessary. In reaching this determination, the WCJ found the opinions of Reviewer and Employer's Physician more competent and credible than those of Claimant's Physician. The WCJ explained:

[Reviewer] indicated that there are no specific injection therapies for the diagnosis of lumbar strain and sprain. He does agree that treatment with Lorcet is reasonable and necessary to the extent it is effective. This opinion is accepted over that of [Employer's Physician]. [Employer's Physician]'s opinion is accepted to the extent she identifies that there is no documentation as to any overall improvement in pain, quality of life, or function. [Claimant's Physician]'s vague description of Claimant's statement of improvement supports [Employer's Physician]'s opinion. Further, [Employer's Physician] noted the lack of a specific diagnosis or treatment plan with well-defined objectives periodically reviewed to determine whether the treatment is working.

Id. at 5.

The court also rejected the Claimant’s assertions that the employer had applied a more restrictive definition of “palliative” than that used by the court in Womack, supra. To the contrary, the court stated, “Rather, the WCJ examined whether the treatments act to relieve the pain and treat symptomatology. The WCJ found the treatments were not effective in alleviating Claimant's pain or improving her quality of life or function. F.F. No. 8. On this basis, the WCJ did not find the treatments reasonable or necessary. Although we sympathize with Claimant, we find no support for her allegations of error.” Id. at 6.

In conclusion, based on the reclassification of Hydrocodone combination medications to Schedule II drugs and the closer scrutiny that courts are now applying when analyzing the reasonableness and necessity of palliative treatment, it is no longer enough to simply rely upon the Claimant’s testimony that the treatment at issue helps to minimize their pain. Rather, it would behoove Claimants’ practitioners to set forth a detailed record establishing an improvement in quality of life or function. The treating physician should testify about the clinical objective outcomes, measures used to quantify pain, i.e. pain diagrams and specific therapeutic goals. If the physician has prescribed Schedule II medications, she should testify about how her prescription of a Hydrocodone combination drug complied with the aforementioned PA Medical Society’s guidelines.