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MV Transportation v. Workers' Compensation Appeal Board

February 25, 2010


The opinion of the court was delivered by: Judge Leavitt

Submitted: October 30, 2009



MV Transportation (Employer) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) affirming a decision of a Workers' Compensation Judge (WCJ). The WCJ's decision contained several components, including the grant of disability benefits to Karen Harrington (Claimant) and a refusal to suspend her benefits. However, the only component considered by the Board on Employer's appeal was that part of the WCJ's decision holding that Employer's utilization review (UR) request applied only to the physical therapist named in the request and not to other physical therapists in the practice. The Board agreed with the WCJ that a separate UR request had to be filed for each physical therapist in the practice group who provided treatment to Claimant. Employer challenges this holding as beyond the requirements of Section 306(f.1)(6) of the Workers' Compensation Act.*fn1

Claimant worked as a driver for Employer, a paratransit company that provides transportation services to disabled individuals. Typically, Claimant drove a 12-passenger van in her work. On May 25, 2006, while operating a van for Employer, Claimant's vehicle was rear-ended, causing her to sustain an aggravation of prior injuries to her neck and back. On June 19, 2006, Claimant filed a claim petition in which she alleged that she had been partially disabled from May 25, 2006, to June 13, 2006, and fully disabled from June 13, 2006, to the present.

On July 26, 2006, a hearing was held on the claim petition. On that same day, Employer filed an answer to the claim petition. Asserting that the answer was untimely filed, Claimant moved to have the allegations in her claim petition deemed admitted in accordance with Yellow Freight System, Inc., v. Workmen's Compensation Appeal Board (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981). The WCJ granted Claimant's Yellow Freight motion. As a result, Claimant was found to have established a work-related injury and entitlement to wage and medical benefits through July 17, 2006.*fn2

On January 5, 2007, Employer requested utilization review of the physical therapy treatment that Claimant was receiving. Employer listed "Frank Shenko, LPT" as the "Provider Under Review." Reproduced Record at 16a (R.R. __). In the space designated for "Treatment to be Reviewed," Employer requested review of all [p]hysical therapy - passive and active treatment by any and all providers at this location or other locations of this provider from 10/3/06 through the present and into the future.

R.R. 17a. Based on Employer's request, the Utilization Review Organization (URO) assigned the utilization review to Jill Galper, LPT.

Galper issued a UR determination that the treatment under review was not reasonable and necessary, along with a report explaining how she reached her determination. Galper's report stated that the treatment under review was limited to that provided by Frank Shenko and that "all other providers will not be commented on" because Employer did not properly request review of any other provider's treatment. R.R. 22a. Galper reported that Shenko declined to speak with her. Galper received only one of Shenko's physical therapy notes. That note reported that Claimant had received treatment, but it did not evaluate Claimant, the treatment goals or a plan for her care. No other physical therapy notes were available. Galper observed that there was no physician referral for physical therapy in the file. Further, Galper felt that Claimant's complaints should have resolved prior to October 3, 2006, the operative date of the UR, given the amount of physical therapy she had received prior to that date. For these reasons, Galper concluded that Shenko's physical therapy treatments were not reasonable and necessary.

Claimant filed a UR petition challenging Galper's determination. At the hearing on the UR petition, Galper's UR determination and report were entered into evidence. The WCJ concluded that Employer proved that Claimant's physical therapy sessions with Shenko were neither reasonable nor necessary. Therefore, Employer was not obligated to pay for treatment provided by Shenko from October 3, 2006, onward. The WCJ rejected Employer's claim that this determination should be applied to other physical therapists who also treated Claimant.

Employer appealed to the Board. Employer argued that the WCJ erred in finding that the UR determination was limited to one therapist, Shenko, and not other therapists at the same practice. The Board rejected this argument and affirmed the WCJ. Employer now petitions for this Court's review.*fn3

Employer argues that the Board erred as a matter of law in concluding that the UR request applied only to Shenko's treatment. Noting that all of the physical therapists in Shenko's facility operate under the supervision of the same physician and provide the same course of treatment, Employer argues that it should not be necessary to request a separate utilization review for each therapist in the practice. Employer points out that it would be cost prohibitive to request multiple utilization reviews; this one alone cost $770.

The UR request form advises the employer seeking a review of treatment to identify the provider by "individual, not a hospital, corporation or group." R.R. 16a. In Bucks County Community College v. Workers' Compensation Appeal Board (Nemes, Jr.), 918 A.2d 150, 151 (Pa. Cmwlth. 2007), an employer sought review of treatment provided by Daniel Files, D.O., "and all other providers under the same license & specialty." Based on the UR request, the utilization reviewer received information regarding Dr. Files and Dr. Thomas Mercora, another doctor under the same license and specialty as Dr. Files. The utilization reviewer then provided a report which did not address the treatment provided by Dr. Files. Instead, the report focused on the treatment provided by Dr. Mercora.

The WCJ found that the report was invalid because the employer had sought review of Dr. Files' treatment and the report failed to address such treatment. The employer ...

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