Submitted: October 18, 2013
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
P. KEVIN BROBSON, Judge
Petitioner Lancess Womack (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed a workers' compensation judge's (WCJ) decision denying the utilization review (UR) petition of one of Claimant's medical providers, Dr. Terri Gartenberg, D.C. (Provider). We affirm the Board's order.
In May 2007, a WCJ issued a decision and amended decision, finding that Claimant sustained the following injuries during her employment with the Philadelphia School District (Employer): herniated discs of the lumbar spine, aggravated by Claimant's work injuries, which consists of a right medial meniscal tear, right shoulder pain, and chronic lumbar pain with anxiety and depression. On September 21, 2010, Employer filed a request for utilization review (UR) of Provider's treatment of Claimant for the period beginning August 19, 2010 and ongoing. On November 15, 2010, the assigned utilization review organization (URO), Rehabilitation Planning, Inc., through its reviewer Michael Zdilla, D.C. (Reviewer), issued a UR Determination, concluding that Provider's medical treatment was unreasonable and unnecessary. On November 29, 2010, Provider filed a UR Petition, seeking review of the UR Determination. The WCJ determined that Provider's treatments were neither reasonable nor necessary. Claimant appealed that decision to the Board, which affirmed the WCJ.
On appeal,  Claimant first contends that the Reviewer's UR Determination was not issued within the time period required in Section 306(f.1)(6)(ii) of the Workers' Compensation Act (Act). As a result, Claimant contends that the UR Determination is void and the treatment should be covered. In the event we rule against her on that issue, Claimant raises the following additional issues: (1) whether the WCJ erroneously shifted the burden to Provider to establish the reasonableness and necessity of her treatment of Claimant; (2) whether the WCJ applied erroneous standards in considering whether the treatment at issue was reasonable and necessary; and (3) whether the WCJ issued a reasoned decision as required by the Act.
A. Time and Consequences
Section 306(f.1)(6)(ii) of the Act provides, in pertinent part:
Except in those cases in which a workers' compensation judge asks for an opinion from peer review under section 420, disputes as to reasonableness or necessity of treatment by a health care provider shall be resolved in accordance with the following provisions:
(i) The reasonableness or necessity of all treatment provided by a health care provider . . . may be subject to prospective, concurrent or retrospective utilization review at the request of an employe, employer or insurer. The department shall authorize utilization review organizations to perform utilization review under this act. . . .
(ii) The utilization review organization shall issue a written report of its findings and conclusions within thirty (30) days of a request.
(iii) The employer or the insurer shall pay the cost of the utilization review.
For purposes of calculating the 30-day review period in the Act, a request for utilization review is considered complete upon the URO's receipt of pertinent medical records or 35 days from the assignment of the matter by the Bureau of Workers' Compensation, Pennsylvania Department of Labor and Industry (Bureau), to the URO, whichever is earlier. 34 Pa. Code § 127.465(a). "A URO shall complete its review, and render its determination, within 30 days of a completed request for UR." Id. § 127.465(b). Thus, at latest, a URO has 65 days from the date of assignment to issue a written report. If, however, the URO receives medical records before the 35th day following assignment, the due date for the written determination would be earlier.
Here, the Bureau's Notice of Assignment to the URO provides an assignment date of September 21, 2010. In his UR Determination, Reviewer indicates that the only records that he reviewed were those of the Provider. (Reproduced Record (R.R.) at 33.) According to Item "E" in Claimant's Exhibit C-4 in the proceeding before the WCJ, the URO received those records on October 5, 2010. (R.R. at 29-30.) Under the Act and regulations, then, the request for UR was deemed complete on October 5, 2010. To comply with the Act and regulations, then, the URO had 30 days from October 5, 2010 to issue its written determination, or until November 4, 2010. Here, Reviewer issued his UR Determination on November 15, 2013. Thus, Reviewer did not issue his UR Determination within the time frame provided in the Act, as implemented by the regulations.
Claimant contends that because the URO was late in issuing its written determination, the UR determination is invalid and the treatment at issue should be deemed reasonable and necessary. (Claimant Br. at 13). The Board rejected this proposed consequence, relying on an analysis of this Court's case law relating to real estate tax sales and whether a time period set forth in a law is mandatory or directory. In In re Sale of Real Estate by Lackawanna County Tax Claim Bureau, 22 A.3d 308 (Pa. Cmwlth.), appeal denied, 613 Pa. 648, 32 A.2d 1279 (2011) (Lackawanna County), the issue before this Court was whether a provision of a tax sale law, which, as paraphrased by this Court, provided that the county tax sale "[b]ureau 'shall' file a petition for judicial sale within one year of an unsuccessful upset tax sale, " id. at 314, imposed a mandatory or directory time requirement. Our Supreme Court has held that the failure to follow a mandatory provision will render a proceeding void, but the failure to follow a directory provision will render such proceedings voidable under only certain circumstances. Fishkin v. Hi-Acres, Inc., 462 Pa. 309, 317 & n.5, 341 A.2d 95, 99 & n.5 (1975).
Upon review of the relevant case law, however, we conclude that the mandatory/directory distinction in our case law does not control the outcome of this matter, because Employer here did not fail to follow any prescribed statutory time period in either the Act or the regulations. Yet, Claimant asks that we essentially prejudice Employer's rights under the Act to seek review of medical treatment for medical necessity and reasonableness because an entity beyond Employer's control, the URO, failed to meet its statutory and regulatory deadlines to issue a written determination. We see no basis in the Act or the regulations, even in light of the Act's remedial nature and affording it liberal construction in favor of the injured worker, to hold Employer, or even a claimant or a provider if they happen to request utilization review under the Act, so accountable.
In Fishkin, minority shareholders of a corporation challenged the corporation's sale of its sole asset on the ground that the corporation did not follow the proper statutory procedures to effect the sale. The Pennsylvania Supreme Court held, however, that those procedures, which involved notice to shareholders and a shareholder vote, were directory and not mandatory. It reasoned:
There is . . . no public interest of substance which is jeopardized by a transfer not in compliance with the statute, and this fact militates against the conclusion that in enacting s 311, subd. B [of the Business Corporation Law] the legislature intended that a transfer which is defective solely because it is violative of the requirements of this provision would be a nullity and of no effect. Properly construed, the word 'shall' in s 311, subd. B is directory only, for it is sufficient to protect the rights of minority shareholders that a non-conforming transfer be deemed voidable (under proper circumstances) by an aggrieved stockholder, rather than void Ab initio. We know of no decision in any other jurisdiction which has held to the contrary in construing similar statutory requirements. Thus, although rescission may in some instances be an appropriate remedy, it is not, as the court below recognized, when the rights of third parties have intervened and the transaction has been completed. There are few reported cases from other jurisdictions in which the remedy of rescission has been awarded. In each, such relief was granted only where the transfer had not yet been completed, or upon a showing that the vendee had no equitable rights superior to those of the aggrieved shareholder.
Fishkin, 462 Pa. at 316-17, 341 A.2d at 98-99 (citations omitted) (footnote omitted). The Supreme Court further explained the mandatory/directory distinction:
To hold that a statutorily prescribed procedure is directory does not mean that it is optional; to be adhered to or not at will. The distinction between a mandatory and a directory statute lies in the effect of noncompliance upon the transaction involved—not in the liability of the person who has violated the statute. Failure to conform to a mandatory procedure renders the regulated activity a nullity. Strict compliance with a directory provision, on the other hand, is not essential to the validity of the transaction or proceeding involved.
Id. at 317 n.5, 341 A.2d at 98 n.5 (citation omitted). Thus, in Fishkin the question was whether the corporate defendant's failure to adhere to statutory procedures rendered the sale by the corporation to an innocent third-party purchaser void ab initio, or from its inception. In concluding that those procedures were directory, the Supreme Court held that the violation did not render the transaction void ab initio.
Similarly, in Lackawanna County, this Court examined the question of whether a judicial sale of real estate by the county to an innocent purchaser should be set aside due to the county's failure to petition for judicial sale within the statutorily-prescribed time period following an unsuccessful tax upset sale. Like the regulatory provision at issue in this case, the judicial sale provision at issue in Lackawanna County included the word "shall" with respect to the period within which the county is to seek a judicial sale. To determine whether the sale must be set aside, taking our lead from the Supreme Court's decision in Fishkin, we analyzed whether use of the word "shall" compelled the conclusion that the failure of the county ...