What's Hot in Workers' Comp - Special PA Alert
Holiday Deliveries: Pennsylvania Supreme Court Wraps Up the Year With Two Major Workers’ Compensation Decisions.
As 2021 comes to a close, the Pennsylvania Supreme Court has issued two decisions that will have a significant impact on workers’ compensation claims handling in 2022 and beyond.
Keystone RX, LLC v. Bureau of Workers’ Compensation Fee Review Hearing Office (Compservices/Amerihealth Casualty Services), No. 27 EAP 2020, decided December 22, 2021, by Chief Justice Baer
In this case, a prior Utilization Review (UR) Determination was used in a subsequent Fee Review hearing as the basis to obtain a dismissal of a pharmacy’s Application for Fee Review. The UR Determination had found treatment not reasonable and necessary; it was challenged by a petition that was later disposed of by a Compromise and Release Agreement. Although the Commonwealth Court ultimately affirmed the dismissal of the pharmacy’s Fee Review Application, they also prospectively held that non-treating health care providers, such as pharmacies, must be given notice and the opportunity to intervene in Utilization Review (UR) proceedings. The Pennsylvania Supreme Court reversed the Commonwealth Court on this issue. According to the court, the Commonwealth Court was wrong to conclude that precluding providers from participating in the UR process but treating UR Determinations as binding on subsequent Fee Review Determinations would threaten providers' due process rights to payment. The court found that when an employer or insurer successfully challenges a treatment, non-treating providers do not have a constitutional entitlement to payment under the Act, simply an expectation of payment in the normal course and, thus, no viable due process claim.
Lorino v. WCAB (Commonwealth of Pennsylvania), No. 8 EAP 2021, decided December 22, 2021, by Justice Todd
This case involved litigation of a termination petition for a work injury that was acknowledged by a medical only NCP as the claimant had not lost any time from work following his injury. The claimant hired an attorney to represent him and entered into a non-traditional, hourly rate fee agreement with his counsel. At the close of the case, the claimant requested payment of the fees under Section 440 of the Act. In dismissing the termination petition, the Workers’ Compensation Judge found there was a reasonable contest and denied the claimant’s request for payment of Section 440 counsel fees (while awarding fees under Section 442 for a lesser amount). The Appeal Board affirmed, and the Commonwealth Court did as well, holding that Section 440(a) of the Act precludes an award of attorney’s fees where a reasonable basis for the employer’s petition exists. The Supreme Court reversed, holding that under Section 440(a), when a contested case is resolved in favor of the claimant, a reasonable sum for attorney’s fees shall be awarded to the claimant. However, the court also held that an award of attorney’s fees may be excluded where a reasonable basis for the contest has been established.
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