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Testimony from a physician who performed an IME of a claimant after the employer filed a petition for review of a utilization review determination can still be considered by the court.

January 1, 2011
The Road Toad, Inc. v. WCAB (McLean); 2581 C.D. 2009; filed August 12, 2010; by President Judge Leadbetter

The claimant filed a utilization review Request, seeking to increase unskilled home assistance that was being provided to her. The reviewer found that the increase in assistance was reasonable and necessary, and the employer filed a Petition for Review of the Determination. After the utilization review Petition was assigned to a workers' compensation judge, the employer filed a Petition to Review Medical Treatment and/or Billing. In support of the petitions, the employer presented deposition testimony from a physician who said that the claimant's condition had not changed and that assistance 12 hours a day was not necessary. The workers' compensation judge granted the employer's petition, concluding that eight hours per day of assistance, seven days a week, was all that was medically required. The Appeal Board reversed the workers' compensation judge's decision on appeal, concluding that the testimony of the employer's physician could not be considered since the physician did not examine the claimant until after the utilization review Petition was filed. The Commonwealth Court, however, reversed the Appeal Board. According to the court, the Appeal Board misapplied the court's decision in United States Steel Corp. v. WCAB (Luczki), 887 A.2d, 817 (Pa. Cmwlth. 2005). In that case, the court held that when an employer appeals from a utilization review Determination without contrary medical evidence in its possession at the time of filing, the employer has not presented a reasonable contest and attorney's fees may be awarded to the claimant. The court noted that Luczki did not address what constitutes competent evidence for the workers' compensation judge to consider on the merits, nor did it provide support for the Appeal Board's conclusion that the physician's testimony could not be considered.

Case Law Alert, 1st Qtr 2011

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