“a ‘record’ is something documented, not something remembered.”
How later courts described this case
- “a ‘record’ is something documented, not something remembered.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Timothy M. Allison, :
Petitioner :
:
v. : No. 704 C.D. 2017
: Argued: December 4, 2017
Workers’ Compensation Appeal :
Board (Fisher Auto Parts, Inc.), :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE J. WESLEY OLER, JR., Senior Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: January 12, 2018
Timothy Allison (Claimant) petitions for review of an adjudication of
the Workers’ Compensation Appeal Board (Board) holding that the Workers’
Compensation Judge (WCJ) lacked jurisdiction to hear Claimant’s appeal of a
utilization review determination. In this appeal, we consider whether a WCJ has
jurisdiction to review the reasonableness and necessity of Claimant’s medical
treatment where, as here, Claimant’s provider did not provide medical records to the
utilization review organization (URO) but a peer review report was nevertheless
prepared. We also consider whether the Board violated Claimant’s due process
rights by denying Claimant a right to appeal the URO determination. For the
following reasons, we affirm.
Background
On May 24, 2010, while employed by Fisher Auto Parts (Employer),
Claimant sustained multiple injuries in a work-related motor vehicle accident.
Employer issued a Notice of Compensation Payable (NCP) pursuant to the Workers’
Compensation Act (Act)1 describing the injury as fractures on the left side of his
face, a fractured left eye socket, a displaced fracture of the right clavicle, fractured
ribs and a fractured pelvis. By decision dated October 25, 2011, a WCJ amended
Claimant’s injury to include whiplash and a left shoulder impingement.
On May 8, 2015, Employer filed a request for utilization review of the
medical treatment provided to Claimant by Dr. Julie Hoang, M.D., from April 6,
2015, and forward, which included office visits, occipital nerve blocks, trigger point
injections and medications. The Bureau of Workers’ Compensation assigned
Employer’s request to Watson Review Services, one of the Bureau’s qualified
UROs.
The URO requested Dr. Hoang’s medical records, but she did not
provide them. Nevertheless, the URO assigned the matter to a reviewing physician,
Dr. Dennis W. Ivill, M.D., who issued a report. His report stated, in pertinent part,
as follows:
There are no records from the provider under review, Julie
Hoang, M.D. However, on 7/14/15 at 3:02 pm I spoke with Dr.
Julie Hoang regarding [Claimant]. She stated that [] the only
treatment after 4/6/15 was an office visit on 5/1/15, at which time
she performed an occipital nerve block, prescribed Lyrica 75 mg
3 times a day, and Robaxin 500 mg 1 twice per day as needed.
She recommended ongoing treatment including greater occipital
nerve blocks, trigger point injections and medications.
Reproduced Record at 75a (R.R. __). In the “Discussion” section of his report, Dr.
Ivill stated:
The documentation is not adequate to support the treatment
under review.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
2
***
There are no records submitted for review from Dr. Julie Hoang
either prior to the period under review or during the time period
of review. Records from additional providers are not recent.
Although I was able to speak with Dr. Hoang regarding
[Claimant], it is the main tenet of healthcare that in order to
provide treatment, office notes must be maintained to document
the subjective complaints, objective findings, assessment, and
plan to document the need for any treatment. There are no
medical records from Dr. Hoang documenting [Claimant]’s
medical history specific to this provider. Therefore, it is my
opinion that office visits from 4/6/15 and continuing (including
on 5/1/15), greater occipital nerve blocks from 4/6/15 and
continuing (including on 5/1/15), trigger point injections from
4/6/15 and continuing, medications consisting of Lyrica 75 mg 3
times a day and Robaxin 500 mg 1 twice per day as needed from
4/6/15 and continuing (including on 5/1/15), compound cream
(ingredients, dose and application frequency unspecified) from
4/6/15 and continuing, and Fioricet (dosage/frequency
unspecified) from 4/6/15 and continuing, as provided to
[Claimant] by Julie Hoang, M.D. are unreasonable and
unnecessary.
R.R. 76a (emphasis added). Dr. Ivill opined that Dr. Hoang’s treatments were
neither reasonable nor necessary.
Dr. Ivill reviewed the medical literature with respect to the medications
Dr. Hoang prescribed, which he discussed in his report. He noted that Robaxin treats
acute pain, as opposed to the chronic pain Claimant experienced. He also stated that
Lyrica may be used to treat neuropathic pain, but in this case there was no
documentation of Claimant’s response to the Lyrica. Fioricet, Dr. Ivill explained, is
a combination product for headache treatment, but its efficacy and safety in treating
recurrent headaches is unclear, and documentation was unavailable. As to the
compound cream, Dr. Ivill noted that there is scant support in the literature for “many
of the agents used in compounded pain-relieving analgesics.” R.R. 77a. Dr. Ivill
3
explained, “[a]ccording to the literature, any compounded product that contains at
least one drug or drug class that is not recommended is not recommended.” Id.
Dr. Ivill also reviewed the medical literature with respect to Dr.
Hoang’s other treatments. He found little support for the use of occipital nerve
blocks to relieve occipital neuralgia and cervicogenic headaches. Regarding the
trigger point injections, Dr. Ivill found “no clear evidence of benefit” in the literature
for their use in treating whiplash syndrome or chronic head, neck, shoulder, or back
pain. Id. Dr. Ivill noted the absence of documentation to support Claimant’s need
for any of those treatments. Based on the foregoing analysis, Dr. Ivill concluded
that Claimant’s office visits with Dr. Hoang were unreasonable and unnecessary.
The URO issued Dr. Ivill’s report with a utilization review cover sheet
noting that Dr. Hoang’s treatment was neither reasonable nor necessary. Notably,
the URO did not check off the box on the cover sheet that stated that the treatment
was unreasonable by reason of Dr. Hoang’s “failure to supply records.”2 R.R. 72a.
Claimant was provided a copy of this cover sheet as well as Dr. Ivill’s report.
Claimant petitioned for review of the URO’s determination. Employer
moved to dismiss Claimant’s petition, arguing that the WCJ lacked jurisdiction
because Dr. Hoang had not provided Claimant’s medical records to the URO. The
WCJ denied Employer’s motion because Dr. Ivill had prepared a substantive report
on Dr. Hoang’s treatments by doing a review of medical literature, which, the WCJ
found, “served as the basis for his opinions regarding the reasonableness and
2
The utilization review determination cover sheet provides the following options (boxes) in
answering the question of whether the health care reviewed is reasonable and necessary: (1) Yes;
(2) Yes in part, no in part; (3) No; and (4) No, pursuant to 34 Pa. Code §127.464 relating to effect
of failure of the provider under review to supply records. In the instant case, the URO checked off
the third box, “No.” R.R. 72a.
4
necessity of Dr. Hoang’s services.” WCJ Decision, 12/2/2015, at 6. Concluding
that the report gave him the basis for a de novo review,3 the WCJ denied Employer’s
motion to dismiss.
At the hearing, Claimant testified that he began seeing Dr. Hoang in
2012 and that her treatment reduced his pain by 90 percent. Notes of Testimony
(N.T.), 01/6/2016, at 11; R.R. 24a. Because of the URO’s determination, Claimant
has been unable to continue the treatment and, consequently, been left in constant
pain. He rated his pain level as six or seven out of ten, mostly on the left side at the
base of his neck, radiating into his left shoulder. When Claimant was under Dr.
Hoang’s treatment, his pain level was reduced to three out of ten.
Claimant submitted a report by Dr. Hoang, dated March 10, 2016,
prepared for Claimant’s counsel. Therein, Dr. Hoang summarized the treatments
Claimant received and opined that they “are medically necessar[y] and medically
indicated” for the purposes of “maintenance of quality of life, reduction of
symptoms, and ability to work.” Certified Record (C.R.), Item 21, Dr. Hoang
Narrative, at 1. Without those treatments, Dr. Hoang stated, Claimant “has suffered
with daily headaches, severe neck and myofascial pain. His quality of life has also
greatly suffered.” Id. Claimant also provided medical records dated from September
29, 2014, through August 3, 2015, from Parkway Neuroscience and Spine Institute,
the practice group through which Dr. Hoang practices.
In further support, Claimant submitted a January 28, 2014, stipulation
of the parties, which stated, in pertinent part, as follows:
3
When a petition for review of a utilization review determination comes before a WCJ, the hearing
before the WCJ is a de novo proceeding where the WCJ is required to consider the report as
evidence but is not bound by the report. See Section 306(f.1) of the Act, 77 P.S. §531(6)(iv); 34
Pa. Code §127.556.
5
4. The parties stipulate and agree that the medical expenses,
attached hereto as Exhibit A, which are the subject matter of a
Penalty Petition presently pending in this matter, are charges
related to reasonable and necessary treatment in the nature of
occipital nerve blocks for Claimant’s whiplash condition, which
was sustained in the work-related motor vehicle accident in
which Claimant was involved on March 24, 2010….
***
6. The parties agree that the provisions of this Stipulation
resolve the pending Penalty Petition. Employer will remain
responsible for the payment of occipital nerve blocks received by
Claimant at Parkway Neuroscience and Spine Institute that are
reasonable and necessary and causally related to the treatment
of the whiplash condition that Claimant sustained in the motor
vehicle accident that occurred on May 24, 2010, until such time
as that obligation is modified by a Utilization Review
Determination, agreement of the parties, or Decision by a [WCJ].
R.R. 85a-86a (emphasis added).
The WCJ set aside the utilization review determination and held that
Dr. Hoang’s treatments and services were reasonable and necessary. The WCJ
found that the parties had stipulated that occipital nerve blocks were reasonable and
necessary to treat Claimant’s work-related injury. The WCJ credited Claimant’s
testimony and accepted “the information from Dr. Hoang as both creditable and
persuasive.” WCJ Decision, 9/28/2016, at 7; Findings of Fact No. 8. The WCJ
explained that he “cannot ignore [the] fact that Dr. Hoang’s position as one of
Claimant’s treating physicians ... places her in a unique relationship with Claimant,
allowing her to observe and consider Claimant’s condition over time, and ... observe
his positive response over this time to the treatment provided[.]” Id. The WCJ
concluded that Employer failed to “meet the burden of demonstrating the accuracy
of the [u]tilization [r]eview [d]etermination.” Id. at 9.
6
Employer appealed to the Board, which reversed the WCJ. Relying on
this Court’s decisions in Stafford v. Workers’ Compensation Appeal Board
(Advanced Placement Services), 933 A.2d 139 (Pa. Cmwlth. 2007), and Leventakos
v. Workers’ Compensation Appeal Board (Spyros Painting), 82 A.3d 481 (Pa.
Cmwlth. 2013), the Board concluded that the WCJ lacked jurisdiction to review the
reasonableness and necessity of the medical treatment at issue because Dr. Hoang
provided no medical records to the URO, thereby precluding Dr. Ivill from doing a
substantive utilization review. Claimant petitioned for this Court’s review.4
Appeal
On appeal, Claimant presents two issues for our consideration. First,
he argues that the Board erred in holding that the WCJ lacked jurisdiction to review
the reasonableness and necessity of Dr. Hoang’s treatment. Despite the fact that Dr.
Hoang did not provide Claimant’s medical records to the URO, Dr. Ivill nevertheless
“performed a substantive review of the merits of the treatment modalities used by
Dr. Hoang and cited medical literature in support of his conclusions.” Claimant
Brief at 10. The “substantive nature of [Dr. Ivill’s] review,” Claimant argues,
distinguishes the instant case from Stafford and Leventakos. Id. at 10-11. Second,
Claimant argues that the Board’s adjudication violated his procedural due process
rights by depriving him of a hearing because he has a property interest in the medical
treatment he received from Dr. Hoang.
4
This Court’s review of an adjudication of the Board determines whether the necessary findings
of fact are supported by substantial evidence, constitutional rights were violated, or errors of law
were committed. Borough of Heidelberg v. Workers’ Compensation Appeal Board (Selva), 894
A.2d 861, 863 n.3 (Pa. Cmwlth. 2006).
7
Analysis
We begin with a review of the applicable law. Utilization review is the
exclusive way for an employer or insurer to challenge the reasonableness or
necessity of medical treatment provided to a claimant. Section 306(f.1)(6)(i) of the
Act.5 Upon request for a utilization review, the Department of Labor and Industry
(Department) assigns the matter to a URO, which then selects a health care provider
in the same or similar specialty as the provider of the treatment under review to
conduct a peer review. Id. The Department’s regulations set forth the procedures
for conducting the utilization review. Section 127.464 of Title 34 of the
Pennsylvania Code states:
(a) If the provider under review fails to mail records to the URO
within 30 days of the date of request of the records, the URO
shall render a determination that the treatment under review was
not reasonable or necessary, if the conditions set forth in
subsection (b) have been met.
5
Section 306(f.1)(6)(i) provides:
Except in those cases in which a [WCJ] 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 under this act may be subject to prospective,
concurrent or retrospective utilization review at the request of an
employe, employer or insurer. The [Department of Labor and
Industry] shall authorize utilization review organizations to perform
utilization review under this act. Utilization review of all treatment
rendered by a health care provider shall be performed by a provider
licensed in the same profession and having the same or similar
specialty as that of the provider of the treatment under review.
Organizations not authorized by the department may not engage in
such utilization review.
77 P.S. §531(6)(i).
8
(b) Before rendering the determination against the provider, a
URO shall do the following:
(1) Determine whether the records were mailed in
a timely manner.
(2) Indicate on the determination that the records
were requested but not provided.
(3) Adequately document the attempt to obtain
records from the provider under review, including a
copy of the certified mail return receipt from the
request for records.
(c) If the URO renders a determination against the provider
under subsection (a), it may not assign the request to a reviewer.
34 Pa. Code §127.464 (emphasis added). This Court has held that the above
procedures must be strictly followed.
In County of Allegheny (John J. Kane Center-Ross) v. Workers’
Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005), a URO
determined that a provider’s treatment was neither reasonable nor necessary for the
sole reason that the provider did not supply the requested medical records. The
claimant appealed to the WCJ, and the WCJ concluded, after an evidentiary hearing,
that the provider’s treatment was reasonable and necessary. This Court reversed,
holding that “if a report by a peer physician is not prepared because the provider has
failed to produce medical records to the reviewer, the WCJ lacks jurisdiction to
determine the reasonableness and necessity of medical treatment.” Id. at 1228.
Thereafter, in Stafford, 933 A.2d 139, this Court again considered the
WCJ’s jurisdiction to hear a challenge to a utilization review determination where
the provider under review failed to provide medical records to the URO. The
differentiating factor in Stafford was that, notwithstanding the unavailability of the
provider’s medical records, the URO assigned the matter to a reviewing physician,
9
who issued a report concluding that the treatment under review was not reasonable
and necessary. However, the reviewing physician’s conclusion was based upon the
absence of the provider’s records, not upon a substantive review of the merits of the
treatment. The claimant petitioned for review of the URO’s determination, and the
WCJ held that he lacked subject matter jurisdiction. This Court affirmed, applying
Geisler, 875 A.2d 1222.
We held that a URO’s determination cannot be reviewed in the absence
of a peer review evaluation that is based upon the provider records. In so holding,
we noted that Section 127.472 of the Department’s regulations requires a reviewer’s
report to contain, inter alia, “a listing of the records reviewed.” 34 Pa. Code
§127.472.6 In the absence of the provider records, the reviewer “had no records to
review.” Stafford, 933 A.2d at 142. Accordingly, the WCJ lacked jurisdiction to
review the URO’s determination.7
Here, Dr. Hoang did not produce Claimant’s medical records upon their
request by the URO. The URO’s assignment of the utilization review to a reviewing
physician was improper because a substantive review cannot be done without those
records. 34 Pa. Code §127.464. Dr. Ivill’s evaluation stated, repeatedly, that “[t]he
documentation is not adequate to support the treatment under review.” R.R. 76a.
6
It provides:
The written reports of reviewers shall contain, at a minimum, the following
elements: a listing of the records reviewed; documentation of any actual or
attempted contacts with the provider under review; findings and conclusions; and a
detailed explanation of the reasons for the conclusions reached by the reviewer,
citing generally accepted treatment protocols and medical literature as appropriate.
34 Pa. Code §127.472.
7
This Court noted an exception to this rule, which is when a claimant or a provider asserts that
medical records were timely provided to the URO in accordance with the URO’s request. Stafford,
933 A.2d at 143 n.7.
10
Claimant asserts that Dr. Ivill “performed a substantive review” because in his report
he also evaluated each treatment. Claimant Brief at 10. Those discussions, however,
were based solely upon Dr. Ivill’s review of the medical literature. Alternatively,
Dr. Ivill concluded that there was insufficient documentation provided to support the
necessity for those treatments or Claimant’s response to them.
Dr. Ivill spoke with Dr. Hoang regarding the treatment under review
before he issued his report. However, an oral account of treatment is not a “record”
for purposes of utilization review. Leventakos, 82 A.3d at 485 (“a ‘record’ is
something documented, not something remembered.”). Nor could Dr. Hoang’s
March 10, 2016, narrative be considered a “record” because it was prepared after
Dr. Ivill issued his report. What is more, Dr. Hoang’s March 10, 2016, report,
addressed to Claimant’s attorney, was prepared for the purpose of litigation, which
is not a substitute for Dr. Hoang’s contemporaneous notes of treatment. Claimant
argues that Dr. Ivill did receive records from Claimant’s previous treating doctors,
which satisfies Section 127.472 of the Department’s regulations, 34 Pa. Code
§127.472. These previous treatments, however, were not the ones subject to the
utilization review. It is Dr. Hoang who is the “provider under review,” and the
Department’s regulation requires that she supply medical records to the URO. 34
Pa. Code §127.464. In short, because the required medical records were not
provided to the URO, the Board properly found that the WCJ lacked jurisdiction to
hear Claimant’s appeal of the utilization review determination.
Claimant next argues that the Board, by denying his right to a hearing,
violated his due process rights because he has an identifiable property interest in the
treatment he received from Dr. Hoang. Claimant contends that Employer had
stipulated that his occipital nerve block treatments were reasonable and necessary,
11
which gave him “more than a mere expectation … but [] an actual entitlement” to
those treatments. Claimant Brief at 16. Employer counters that the medical benefits
in the instant case are not “property” because the URO found them unreasonable and
unnecessary. We agree with Employer.
Procedural due process requires that one have an identifiable property
right or liberty interest. Pennsylvania Interscholastic Athletic Association, Inc. v.
Greater Johnstown School District, 463 A.2d 1198, 1201 (Pa. Cmwlth. 1983). In
Miller v. Workers’ Compensation Appeal Board (Pavex, Inc.), 918 A.2d 809 (Pa.
Cmwlth. 2007), this Court concluded that a claimant does not have a protected
property interest in medical benefits not yet determined to be reasonable and
necessary. Here, Claimant contends that Employer stipulated that his occipital nerve
block treatments were reasonable and necessary. The stipulation, approved by a
WCJ on January 28, 2014, states, in pertinent part, as follows:
Employer will remain responsible for the payment of occipital
nerve blocks received by Claimant at Parkway Neuroscience and
Spine Institute that are reasonable and necessary and causally
related to the treatment of the whiplash condition that Claimant
sustained in the motor vehicle accident that occurred on May 24,
2010, until such time as that obligation is modified by a
Utilization Review Determination, agreement of the parties, or
Decision by a [WCJ].
R.R. 85a-86a (emphasis added). Notably, the term “that are reasonable and
necessary” modifies “occipital nerve blocks received by Claimant,” which means
that Employer was not obligated to pay for all nerve blocks, but only those “that are
reasonable and necessary.” The stipulation further states that Employer’s obligation
of payment is subject to modification by a utilization review determination;
accordingly, Employer did not agree to remain responsible indefinitely. This is
supported by Section 306(f.1)(6)(i) of the Act, which provides that the
12
reasonableness or necessity of all treatment provided by a health care provider may
be subject to “prospective, concurrent, or retrospective utilization review.” 77 P.S.
§531(6)(i). Indeed, the passage of time may affect the reasonableness and necessity
of a particular medical treatment, even if the claimant’s medical condition has not
changed. Gary v. Workers’ Compensation Appeal Board (Philadelphia School
District), 18 A.3d 1282, 1287 n.7 (Pa. Cmwlth. 2011).
Here, the URO has determined that the treatment Dr. Hoang provided
is not reasonable and necessary. Claimant’s due process claim is unfounded because
he had no identifiable property right to any medical treatment that, by law, has been
determined not to be reasonable and necessary.
For all of the foregoing reasons, we affirm the Board’s order.
______________________________________
MARY HANNAH LEAVITT, President Judge
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Timothy M. Allison, :
Petitioner :
:
v. : No. 704 C.D. 2017
:
Workers’ Compensation Appeal :
Board (Fisher Auto Parts, Inc.), :
Respondent :
ORDER
AND NOW, this 12th day of January, 2018, the order of the Workers’
Compensation Appeal Board dated May 11, 2017, in the above captioned matter is
hereby AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge