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Shaw v. Workers' Compensation Appeal Board

April 21, 2010

JIMMIE SHAW, PETITIONER
v.
WORKERS' COMPENSATION APPEAL BOARD (MELGRATH GASKET CO.), RESPONDENT



The opinion of the court was delivered by: Judge Cohn Jubelirer

Submitted: February 12, 2010

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Jimmie Shaw (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board) which reversed a Workers' Compensation Judge's (WCJ) determination granting Claimant's Petition for Review of Utilization Review Determination (UR Petition), vacating the underlying Utilization Review Determination (UR Determination), and dismissing Melgrath Gasket Co.'s (Employer) Utilization Review Request (URR). On appeal, this Court must determine whether the medical provider under review sufficiently complied with the URR where he timely mailed Claimant's medical records to Margroff Review Services ("the URO"), an authorized Utilization Review Organization, on a password-protected CD-ROM but failed to ever disclose the password to the URO.

Claimant was injured at work on December 5, 1988 and began receiving workers' compensation benefits. On November 19, 2007, Employer filed a URR for "any and all prescriptions for medications prescribed to Claimant." (URR ¶ 11.) On November 27, 2007, the Bureau of Workers' Compensation (Bureau) issued a Notice of Assignment of Utilization Review Request to the URO. That same day, the URO sent a letter to Alan Bailer, D.O., the medical provider whose care was under review, requesting that he: forward all of the true and complete medical records for the entire course of treatment rendered to [Claimant] for the work-related injury (§127.462) to [the URO]'s office . . . within 30 days of the date of this letter. (We are requesting all medical records in your possession from 12/05/1988 and onward)" (the Letter).

(Letter from the URO to Dr. Bailer (November 27, 2007) ("the Letter") at 1; R.R. at 6a (emphasis omitted).) The Letter also indicated that, as the medical provider under review, Dr. Bailer "MUST include the enclosed provider verification form . . . §127.459(c) [verifying] to the best of his knowledge, the medical records provided constitute the true and complete medical chart as it relates to the employee's work-injury." (The Letter at 1; R.R. at 6a (emphasis in original).) Moreover, the Letter informed Dr. Bailer that if he "fails to mail records to the URO within 30 days of the date of request of records, the URO shall render a determination that the treatment under review was not reasonable or necessary." (The Letter at 2; R.R. at 7a.) The Letter clearly indicated that the records must be mailed to the URO by December 28, 2007, and that the URO "will consider the records as timely if the envelope containing the records contains a valid U.S.P.S. Postmark on or before December 28, 2007." (The Letter at 2; R.R. at 7a (emphasis in original).)

On December 24, 2007, Dr. Bailer mailed a CD-ROM containing Claimant's medical records to the URO. In accordance with past custom and practice, Dr. Bailer encrypted the records, thereby requiring a password for the records to be viewed. The URO received the medical records from Dr. Bailer on December 27, 2007, but the URO could not read the CD-ROM. That same day, the URO telephoned Dr. Bailer and left a telephone message advising him that the CD-ROM could not be downloaded and that he had one day to provide paper medical records. Thereafter, the URO sent the unviewed CD-ROM back to Dr. Bailer "but made no further attempts to review the records or to contact [Dr. Bailer]." (WCJ Decision, Findings of Fact (FOF) ¶ 8.) On January 17, 2008, the URO issued a UR Determination holding that the healthcare under review was unreasonable and unnecessary pursuant to 34 Pa. Code § 127.464 because Dr. Bailer failed to supply the requested medical records. (UR Determination, R.R. at 4a.) On February 11, 2008, Claimant filed the UR Petition and submitted the deposition testimony of Dr. Bailer in support thereof.

Dr. Bailer testified that he received the Letter and signed a postal form acknowledging receipt on November 29, 2007. (FOF ¶ 11b.) Dr. Bailer testified that he took steps to provide the URO with Claimant's medical records by copying Claimant's records to a CD-ROM encrypting it with a security password, as he has done in the past, because the medical records were voluminous and because he wanted to keep the records secure. "Dr. Bailer used a 128-bit encrypted program to protect the records," but he "did not send the password with the CD to preserve the security of the information." (FOF ¶ 11c.) Dr. Bailer testified that he sent the CDROM to the URO on December 24, 2007, and did not hear from the URO "until it communicated that it could not open the CD and that Dr. Bailer had one day to provide paper records to [the URO]. [The URO] never requested the password to the encrypted CD." (FOF ¶ 11d.)

In opposition to the UR Petition, Jennifer Margroff, owner of the URO, testified that her due date for a determination was January 31, 2008. Ms. Margroff testified that the URO sent the Letter to Dr. Bailer requesting that the medical records be mailed to her by December 28, 2007. She indicated that she did receive a CDROM from Dr. Bailer on December 27, 2008, but she was unable to open the CD. Ms. Margroff testified that on December 27, 2007, at 4:18 p.m. and 4:25 p.m., she telephoned Dr. Bailer's two medical offices and left messages "informing Dr. Bailer that she was unable to download the CD and 'that he must physically copy the medical records and mail them by the following day.'" (FOF ¶ 12c (quoting Margroff Dep. at 18, R.R. at 45a).) The URO heard nothing further from Dr. Bailer, and so, on January 17, 2008, the URO issued a UR Determination that the treatment under review was neither reasonable nor necessary and attached a "No Records Determination Cover Letter." (R.R. at 5a.) In the No Records Determination Cover Letter, the URO stated:

The 30th day (due date) for the medical records was December 28, 2007. The provider under review has failed to mail the medical records and signed provider verification form by the due date as indicated above. Therefore, the determination is being processed according to § 127.464 relating to the effect of failure of the provider under review to supply records.

(No Records Determination Cover Letter, R.R. at 5a (emphasis in original).)

Based on the evidence presented, the WCJ found Dr. Bailer's testimony credible and persuasive and further found that Dr. Bailer "mailed the CD containing the Claimant's medical records on December 24, 2007, prior to the deadline of December 28, 2007." (FOF ¶ 13.) The WCJ also credited Ms. Margroff's testimony "to the extent that her actions were consistent with her notes regarding this case" and found that Ms. Margroff received the CD from Dr. Bailer prior to the deadline. (FOF ¶ 14.) The WCJ also found that Dr. Bailer acted reasonably and consistent with his obligations to protect the privacy of Claimant's medical records. However, the WCJ found the URO's conduct unreasonable because "the URO, upon receipt of the CD, should have requested the password or sought further assistance in order to review the records. Instead, by telephoning the Provider late in the afternoon and mandating that the Provider supply all records in paper form within 24 hours, the URO did not act reasonably or appropriately under the circumstances." (FOF ¶ 15.) The WCJ emphasized that Dr. Bailer attempted to supply all of Claimant's medical records to the URO in a timely fashion. Therefore, the WCJ concluded that the UR Determination, finding the treatment under review was neither reasonable nor necessary because of lack of records, was arbitrary and capricious, and thus, the WCJ held that it lacked jurisdiction to hear the UR Petition. See County of Allegheny v. Workers' Compensation Appeal Board (Geisler), 875 A.2d 1222, 1228 (Pa. Cmwlth. 2005) (stating that a "WCJ lacks jurisdiction to determine the reasonableness and necessity of medical treatment . . . if a report by a peer physician is not prepared"). Accordingly, the WCJ granted the UR Petition, vacated the UR Determination, and dismissed Employer's URR.

Employer appealed the WCJ's order, and the Board reversed. The Board held:

After a careful review of the record, we conclude that the WCJ erred in finding that Provider reasonably complied with the URO's request for records when he submitted Claimant's medical records on a password protected CD, but withheld the password required to open those records. First, we note that this is an issue of first impression as our research has uncovered no case law or regulations specifically dealing with the type of media that may be utilized in the submission of medical records to the URO. We, however, like the WCJ, do not determine any error in Provider's decision to submit medical records to the URO ...


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