The Month in Pennsylvania Workers' Compensation: December 2013 At-A-Glance
Mitchell I. Golding, Esq. on 1/22/2014
About The Author
Kennedy, Campbell, Lipski & Dochney
EXCLUSIVITY-IMMUNITY/ OCCUPATIONAL DISEASE/ STATUTE OF REPOSE
The Pennsylvania Supreme Court holds that the exclusivity provision of Section 303(a) does not preclude the employer from a liability lawsuit filed by its employee/employees estate, where the Claimant's mesothelioma did not manifest itself within 300 weeks of the Claimant's last date of employment in an occupation or industry to which he was exposed to hazards of such disease.
Put another way, claims for occupational disease which manifests outside of the 300-week period prescribed by the Act do not fall within the purview of the Act, and, therefore, that the exclusivity provision of Section 303(a) does not apply to preclude an employee from filing a common law claim against an employer.
This is because the legislature did not intend the Act to apply to claims for disability or death resulting from occupational disease which manifests more than 300 weeks after the last occupational exposure.
To rule otherwise would be to find that Section 301(c) (2)'s 300-week time window operates as a de facto exclusion of coverage under the Act for essentially all mesothelioma claims.
In reaching this holding the Court construes Section 301(c)(2) as follows: "whenever occupational disease is the basis for compensation, for disability or death under this Act, the Act shall apply only to disability or death resulting from such disease and occurring within three hundred weeks after the last date of employment.
Tooey, Executrix of The Estate Of John F. Tooey, Deceased, And Kathleen Tooey In Her Own Right, et. Al. v. WCAB (A.W. Chesterton Company, et. al.) No. 21 WAP 2011(Decision by Madame Justice Todd, November 22, 2013) 12/13
MEDICAL BILLS/UTILIZATION REVIEW
A treatment summary, entitled "Medical Expert Opinion and or a verbal description of the treatment provided to a claimant by a Healthcare Provider subject to an Utilization Review does not satisfy the requirement that the Provider subject to a Utilization Review supply the URO with records, within the meaning of 34 Pa. Code §127.464.
Therefore the WCJ properly dismissed Provider's Petition Seeking Review of a Utilization Review Determination because, consistent with County of Allegheny (John J. Kane Center-Ross) v. Workers' Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005), and Stafford v. Workers' Compensation Appeal Board (Advanced Placement Services), 933 A.2d 139 (Pa. Cmwlth. 2007) she lacked jurisdiction because the Provider failed to submit any medical records to the URO.
The written treatment summary does not constitute a "record per the Bureau's instructions to UROs and reviewers that specifically provides that summaries prepared by a provider for purposes of utilization review "are not to be considered or mentioned by the Reviewer as part of the review or determination report.
An Oral Account of the treatment does not constitute a "record consistent with the definitions of "medical record provided in Title 28 of the Pennsylvania Code (Health and Safety). 28 Pa. Code §1001.2 defines "medical record as "documentation of the course of a patient's condition and treatment, maintained to provide communication among health care providers for current and future patient care.
There is no exception to the rule that records be provided to the URO where the physician in the foreign county now resides, in this matter Greece, does not maintain medical records. If a provider or claimant wants to be paid for medical services, the provider must comply with medical conventions in Pennsylvania and keep medical records.
Leventakos v. WCAB (Spyros Painting), No. 2156 C.D. 2012 (Decision by Judge Pellegrini, December 5, 2013) 12/13
Section 306(f.1) (5) only permits providers, and not billing entities, to file Applications for Fee Review. Therefore, the Bureau cannot rule upon a Fee Review Application if it is not determined whether the entity who filed the Fee Review is a provider.
The Bureau lacked jurisdiction to determine whether an entity known as the "Physical Therapy Institute was a medical provider.
This is because the Fee Review process is designed to be a simple process limited to disputes over the amount of payment due for medical fee where it is alleged that the payment had not been calculated in accordance with the compensation fee schedule or medical billing protocols. The Fee Review proceeding is not undertaken to determine liability for a particular treatment. The Fee Review process presupposes that liability has been established.
In this matter, the issue of whether the Physical Therapy Institute was a provider of physical therapy to Claimant or simply a billing agency was beyond the scope of a Fee Review. Liability must be established before a Fee Review proceeding can take place. Further, the Fee Review process assumes that the person seeking a Fee Review has been established as a valid medical provider. The question of whether the Physical Therapy Institute is a "provider is a complex issue for a Workers' Compensation Judge to decide.
Since the Bureau lacked jurisdiction to consider the carriers challenge to its Medical Fee Review Section's fee determination, because it was not determined whether the Physical Therapy Institute was a Provider under Section 306(f.1)(5) of the Act, the Medical Fee Review Section lacked jurisdiction to act upon the Physical Therapy Institute's Fee Review applications.
In cases in which liability for a particular treatment is at issue, the claimant, not the medical provider, must pursue compensation before a workers' compensation judge in the regular course.
Selective Insurance Company of America v. Bureau of Workers' Compensation: Fee Review Hearing Office (The Physical Therapy Institute), No. 613 C.D. 2013(Decision by JUDGE LEAVITT, December 6, 2013) 12/13
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