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What's Hot in Workers' Comp

A Utilization Review request that does not list all of a claimant’s treating providers does not render the request or the UR Determination invalid.

Frank Hughes v. Wawa, Inc. (WCAB); 333 C.D. 2021; filed Dec. 13, 2021; Judge McCullough (previously not reported and precedential by order dated Feb. 28, 2022)

April 1, 2022

by Francis X. Wickersham

In this case, following the claimant’s April 2000 work injury, a C&R Agreement was approved by a Workers’ Compensation Judge and the medical portion of the claimant’s claim remained open. Approximately eight years later, a Utilization Review (UR) Requests were filed, seeking review of treatment the claimant was receiving relative to prescriptions for various medications, including OxyContin. It was determined that the prescriptions were not reasonable and necessary. The claimant filed petitions for review of the UR Determinations. 

The Workers’ Compensation Judge found that the medical evidence supported the recommended attempts to wean the claimant off the medications and reduce unnecessary medical visits. The claimant appealed to the Appeal Board and also asked the Board to remand the case to the Judge, based on new CDC Guidelines that had been issued after the appeal was filed. The Board affirmed the judge’s decision.

On appeal to the Commonwealth Court, the claimant argued the UR Requests were defective because they did not list all of his other treating providers. According to the claimant, for this reason, the reviewers were not provided with the opportunity to review all of his medical records, rendering the UR Determinations as void. The claimant maintained that the listing of other treatment providers on the UR Request form is mandatory and failure to do so should automatically render a UR Determination defective.

The court rejected this argument and dismissed the claimant’s appeal. According to the court, even if the reviewers did not conduct a review of medical records of other providers due to the failure to identify them on the UR Request form, it would not automatically mean the reviewers would be unable to render a determination of reasonableness or necessity. The court noted that the reviewers did, in fact, review medical records from the claimant’s other treating providers and further noted that the absence of other providers’ medical records, if any, goes to the weight of the evidence. 

 

What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2022 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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RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. 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