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What's Hot in Workers' Comp

An Application for Fee Review is not premature on the basis that the treatment for an accepted work injury is not causally related where a Utilization Review Request has not been filed.

UPMC Benefit Management Services, Inc. v. United Pharmacy Services (Bureau of Workers’ Compensation Hearing Office); 558 C.D. 2021; filed Dec. 15, 2022

February 1, 2023

by Francis X. Wickersham

The claimant sustained a low back work injury in October of 2019, which was accepted by a medical-only Notice of Compensation Payable (NCP). Thereafter, the claimant was prescribed compound cream. The Pharmacy issued three separate bills, requesting payment of $2,249.98 for the cream. The employer denied payment on the basis that the treatment was not related to the injury. The Pharmacy filed three separate Applications for Fee Review. The Fee Review Office denied each application as prematurely filed because the issue of causation to the work injury remained outstanding. The Pharmacy then filed a request for a de novo hearing. 

The Pharmacy argued that the applications were not premature because the injury was accepted by the employer, no party petitioned for Utilization Review and the 30-day period in which to remit payment had already lapsed.

The Hearing Office reversed, concluding that the causation defense was, in fact, a challenge to the reasonableness and necessity of the treatment, which should have been disputed through the Utilization Review (UR) process. The employer appealed to the Commonwealth Court, contending that, even where the claimant’s injury is accepted, the insurer might nonetheless question liability for a particular treatment.

The Commonwealth Court affirmed the Hearing Office, holding that the three pre-requisites required by Bureau Regulation 127.255, concerning premature Fee Review Applications, did not exist. The court noted that a medical-only NCP accepting liability for the work injury was issued. The court also pointed out that the employer had the option of filing a Petition for Review of Medical Treatment, contesting the causal relationship of the treatment, or of requesting Utilization Review of the prescribed treatment, neither of which was done. According to the court, the employer was obligated to dispute liability through the UR process in order to render the Pharmacy’s Fee Review Applications premature and the employer’s causation defense was just another way of stating that the compound cream was not a reasonable or necessary procedure. 

A dissenting opinion was authored by President Judge Cohn Jubelirer, pointing out that neither Section 306(f.1) of the Act, the Regulations nor precedent support the conclusion that the UR process was intended to address causation-based challenges. Therefore, in her view, the Fee Review Applications were properly dismissed as premature. 

 

What’s Hot in Workers’ Comp, Vol. 27, No. 2, February 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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