Killing Constituents: The Current Status of the Utilization Review Process

By
Robert P. Schenk

Pennsylvania – Workers' Compensation
 

Key Points:

  • J.D. Landscaping v. WCAB (Heffernan) illustrates the tragic consequences of a Utilization Review Process that reviews providers, not the treatment.
  • When a claimant may pursue a narcotic treatment plan deemed not reasonable or necessary simply by having another provider write the prescription, the employer does not save money, and the claimant can, like Mr. Heffernan, wind up dead.
  • Since the courts have refused to address this issue, the legislature needs to clarify the intent of the law.

In 2008 I wrote an article about how the court's decision in Schenck v. WCAB (Ford Electronics), 937 A.2d 1156 (Pa. Cmwlth. 2007) had weakened the legislative intent of the Utilization Review process. That intent is, of course, to save money and contain medical costs in workers' compensation cases. In Schenck, the court had held that a Utilization Review Determination was specific to the provider, not the treatment under review. I argued that the practical result of this case was such that a claimant taking narcotic pain medication, deemed medically unnecessary and unreasonable, need only switch to a new provider willing to write the same scripts to continue his drug regime. This did not save money or benefit the claimant or the employer. The claimant would not get better since, by definition, the treatment only needed to make him feel better. Furthermore, the employer would have to continue paying for the new provider and the same scripts, which certainly did not control costs. In 2011, the Commonwealth Court case of J.D. Landscaping v. WCAB (Heffernan), 2011 Pa. Commw. LEXIS 593 (December 2, 2011), hammered home my point, with tragic consequences.

On July 12, 2002, James Heffernan worked for J.D. Landscaping and, while in the scope of his employment, sustained injuries to his low back, identified as a low back strain and a herniated disc at L4-5. In 2002 he began to treat with Dr. George Rodriquez whose treatment included prescriptions for Sonata, Fentanyl, Oxycodone, Fentora, Docusate and Lyrica. After five years, the employer filed a Utilization Review Request, challenging the reasonableness and necessity of all the treatment rendered to Mr. Heffernan by Dr. Rodriquez. A Utilization Review Determination was issued on June 4, 2007, by Dr. Richard S. Kaplan, M.D., who concluded that all the treatment provided to the claimant by Dr. Rodriquez, including the prescriptions, was neither reasonable nor necessary from February 15, 2007, and into the future. What happened next is revealed in the reproduced record noted by the Commonwealth Court.

Dr. Rodriquez testified that he is the sole owner of George L. Rodriquez, M.D., P.C. and that his sister, Dr. Daisy Rodriquez, M.D., is the only other physician in the practice. Dr. George Rodriquez testified that he is familiar with the Utilization Review process and was aware of the June 4, 2007, Utilization Review Determination that concluded his treatment of Mr. Heffernan was neither reasonable nor necessary. Nonetheless, he saw Mr. Heffernan for an office visit on June 14, 2007, at which time he prescribed the following medications for Mr. Heffernan's work-related injury: Actiq, 800 mcg (Fetanyl lozenge), once a day; Duragesic (Fentanyl patch), 50 mg and 100 mcg in combination, once every other day; Fentor (Fentanyl tablet) 800 mcg, three times a day; Ambien, 10 mg, as needed for sleep; Colace, 100 mg two times a day; Lyrica, two times a day; and Oxy IR (Oxycodone tablet), 5 mg, every four hours as needed. Those prescriptions were sent to Summit Pharmacy, a mail order pharmacy, but Summit Pharmacy refused to fill them.

Dr. Daisy Rodriquez testified that she was with Dr. George Rodriquez at his home on June 15, 2007, at which time Dr. George Rodriquez received a phone call from Mr. Heffernan. Dr. George Rodriquez informed Dr. Daisy Rodriquez that Summit Pharmacy would not fill Mr. Heffernan's prescriptions because of the June 4, 2007, Utilization Review Determination, and he asked Dr. Daisy Rodriquez to "handle" the situation. Dr. Daisy Rodriquez then got on the phone with the Mr. Heffernan and scheduled an appointment for June 16, 2007. On that day, Dr. Daisy Rodriquez briefly examined Mr. Heffernan and determined that "this was purely just an issue of replacing prescriptions." Dr. Daisy Rodriquez could not state with certainty the specific prescriptions she wrote for Mr. Heffernan on June 16, 2007, but she felt that the prescriptions written by Dr. George Rodriquez on June 14, 2007, were appropriate for Mr. Heffernan's medical condition and that it was not her intention to alter Dr. George Rodriquez's treatment in any way.

Four days later, on June 18, 2007, a family member went to check on Mr. Heffernan in his home. He was in his bedroom. The television, light and fan were on. There was a cart in the bedroom with the numerous prescription medications. Mr. Heffernan was lying in the bed, dead, with a box of Fentanyl patches in his hand and a pink froth coming from his mouth. Dr. Rodriquez's patient died as the result of an accidental overdose, primarily Fentanyl in excess of the amount prescribed for him for his work injury.

The Heffernan decision arises from a Fatal Claim Petition subsequently filed by Mr. Heffernan's dependent daughter. The petition was granted by the judge. In awarding benefits to the daughter, the judge was aware of the Utilization Review Determination, which was made a part of the record. The judge found that since the Utilization Review Determination concerned only the treatment rendered to Mr. Heffernan by Dr. George Rodriquez, it had no bearing on the treatment rendered to Mr. Heffernan by Dr. Daisy Rodriquez. The judge further found that neither Dr. George Rodriquez nor Dr. Daisy Rodriquez scheduled their visits and treatment of Mr. Heffernan with the intention to get around a Utilization Review Determination. It is easy to be critical of the judge's decision, but I think the judge was simply trying to award benefits to a daughter who lost her father in a medical tragedy. I would argue, however, that the real tragedy is the fact that the law permits this type of medical manipulation in the living rooms of doctors in Pennsylvania. Even more tragic is the fact that the Commonwealth Court did not take the opportunity to fix this clearly broken law.

The employer appealed the judge's decision to the Board, which affirmed, and then to the Commonwealth Court as well. In affirming the Board, the court rejected the employer's argument that the June 4, 2007, Utilization Review Determination should have been applied to Dr. Daisy Rodriquez, who wrote prescriptions identical to those issued by her brother two days earlier, at her brother's request, and with the knowledge that her brother's treatment of Mr. Heffernan was subject to the June 2007 Utilization Review Determination. In its analysis, the Commonwealth Court followed the Schenck decision.

It seems to me there will never be a clearer case where the tragedy of the Schenck decision could be illustrated, and as such, it may be necessary to have the legislature revisit this issue once again. Arguably, when legislation and judicial decisions merely kill jobs and businesses in Pennsylvania, no one cares. However, now that those decisions are killing claimants, perhaps the politicians will start to pay attention.

 

*Robert, a shareholder in our Philadelphia, Pennsylvania, office, can be reached at 215.575.2645 or rpschenk@mdwcg.com.

Defense Digest, Volume 18, No. 1, March 2012