MV Transportation v WCAB (Harrington) decided 2/25/10 by Commonwealth Court of PA
It is rewarding when we receive a decision that helps a client. It is even more rewarding when we receive a decision that benefits an industry. - David G. Greene, Esq.
As a backdrop, recent case law seemed to suggest that if you wanted to challenge a particular type of treatment (in this case physical therapy), you would have to file a utilization review (UR) against each therapist instead of against the entirety of the therapy. This assumption was due to two cases, Bucks County Community College v WCAB (Nemes, Jr.), 918 A.2d 150 (Pa. Cmwlth. 2007) and Schenck v WCAB (Ford Electronics), 937 A.2d 1156 (Pa. Cmwlth. 2007), both cited by the Commonwealth Court in the decision of MV Transportation v WCAB (Harrington) decided 2/25/10. Both the Bucks County case and the Schenck case involved doctors; our case in Harrington involved physical therapy.
In Harrington, we filed a utilization review (UR) against all of claimant's physical therapy (PT) in one UR. On page one, we listed the main therapist (Shenko) and on page 2 advised that we were challenging not only Shenko's PT but also any other identical PT being performed in the same office. As anticipated, the WCJ found against us, as did the WCAB, citing to the Bucks County and Schenck cases as controlling. Fortunately, our clients were willing to take this case to the Commonwealth Court. Prior to the Petition for Review, we discussed the absurdity of filing a different UR against each therapist when (1) the PT was all prescribed by one doctor; (2) the therapists were all only carrying out the physician's orders; (3) claimant might see a different therapist depending on the time she had an appointment; (4) there was the possibility of conflicting URs against the same treatment since the UR for one therapist in the office would likely be assigned to a different URO than another; and (5) the cost of multiple URs was prohibitive. We discussed the fact that if we won, we could make good law for employers, insurance companies, and third party administrators in the Commonwealth.
We were successful in making new law since in Harrington, the Commonwealth Court ultimately concluded that it is unnecessary to file a UR against each therapist performing PT in the same office. Instead, the Commonwealth Court has held that to challenge PT in one office, you should name the prescribing doctor AND the facility where claimant receives that therapy. By doing this, you will be able to challenge all PT in one UR and avoid the cost of multiple URs and the possible result of inconsistent UR determinations. We anticipate that the Bureau may have to revise the UR request as a result of this change in the law.
One question that remains is how this decision affects chiropractic care. Chiropractors operate independently so there may be some distinction between this decision and chiropractic treatment. However, chiropractic care in today's world can also be physical therapy so any chiropractic care should be reviewed carefully to ascertain whether it can be challenged in one UR or whether multiple URs are required.
The significance of this decision has already been recognized by national Workers' Compensation media outlets.
For questions about this decision or about the Utilization Review practice in the future in light of this decision, please contact David G. Greene, Esq. or one of our Workers' Compensation attorneys with whom you are in regular contact. Training sessions on this change and UR practice are always available through the firm.