Krouse v. Workers' Compensation Appeal Board

CONCURRING OPINION BY

Judge PELLEGRINI.

I concur with the result reached by the majority. However, I write separately to make clear that utilization review requests can only be filed after a claimant’s injury has been recognized or accepted or after the insurer has begun paying for medical treatments.

Claimant sustained a work-related injury in the nature of bilateral carpal tunnel syndrome on May 6, 1997, while working for Barrier Enterprises, Inc. (Employer) as a glass cutter. Employer filed a utilization review request seeking the review of treatments rendered by Michael Dunigan, D.C. (Dr. Dunigan), a chiropractor, to Claimant from May 1, 1997 through August 22, 1997. The reviewer found that the treatments were neither reasonable nor necessary. Claimant filed a petition to review the utilization review determination but later withdrew it following an agreement between the parties that Claimant’s bills would be paid.

*677 On October 9, 1997, Employer filed a second utilization review request, this time seeking the review of bills which Employer and its insurer had refused to pay for chiropractic treatments rendered by Dr. Dunigan from September 12, 1997 forward. Once again, the reviewer found the treatments to be neither reasonable nor necessary. Claimant did not appeal this determination.

On November 3, 1997, Claimant filed a claim petition and a WCJ granted disability benefits. Then, on April 27, 2001, she filed a petition to review medical treatment (review petition) alleging that Employer had not paid her medical bills since September 12, 1997. The WCJ treated Claimant’s review petition as a utilization review petition and ordered Employer to pay Dr. Dunigan’s medical bills. Employer appealed to the Board, which granted Employer’s supersedeas request. Relying on the principles of res judicata and collateral estoppel, the Board reversed the WCJ because Claimant was seeking payment for the same medical treatment that had been found to be neither reasonable nor necessary in the prior utilization review decision from which she had not appealed. The Board further stated that its regulations, specifically, Section 127.405 of the Medical Cost Containment Regulations, 34 Pa.Code § 127.405, 1 did not prohibit Employer from filing a utilization review request prior to the fifing of Claimant’s claim petition. Employer appealed to this Court. 2 Affirming the Board, the majority concludes that Claimant’s claim petition did not render the prior utilization review proceeding moot or void ab initio, and that the review petition was barred by the principles of res judicata and collateral estoppel because it attempted to refitigate the prior unap-pealed utilization review determination.

Utilization review requests can only be filed after an injury has been recognized or accepted by the employer or after the insurer has begun paying for the medical treatments. Relying on 34 Pa.Code § 127.405, the Board found that although Employer filed its utilization review request prior to the fifing of Claimant’s claim petition, Employer was not prohibited from seeking review of the chiropractic treatments even though the injury had not yet been recognized or accepted. However, to the contrary, utilization review can only be conducted once an injury has been accepted, typically by an employer issuing a notice of compensation payable, by the granting of a claimant’s claim petition or as provided under 34 Pa.Code § 127.405— once an insurer has begun 'paying for the medical treatment. In the case before us, however, none of those three instances *678 occurred. 3 Because Claimant’s injury had not been recognized nor her medical bills paid prior to Employer filing the utilization review request, the utilization review process was not available to Employer to review the reasonableness or necessity of Claimant’s treatments. However, because Claimant never appealed the utilization review determination raising, as an affirmative defense, the issue that Employer had no right to avail itself of the utilization review process, it stands as a final order; therefore, I would still find that res judica-ta and collateral estoppel barred her review petition.

. That section provides:

UR of medical treatment in medical only cases.

(a) In medical only cases, when an insurer is paying for an injured worker’s medical treatment but has not either filed documents with the Bureau admitting liability for a work-related injury nor has there been a determination to the effect, the insurer may still seek review of the reasonableness or necessity of the treatment by filing a request for UR.

(b) If the insurer files a request for UR in a medical only case, the insurer is responsible for paying for the costs of the UR.

(c)If the insurer files a request for UR in a medical only case, then the insurer shall be liable- to pay for treatment found to be reasonable or necessary by an uncontested UR determination.

. While Employer's utilization review request was filed as a “medical only” case, the insurer had never begun paying for Claimant’s medical treatments in this case as required by 34 Pa.Code § 127.405, thereby allowing them to file a utilization review request without having admitted liability for the injury, e.g., a notice of compensation payable or having a determination to that effect, e.g., a WCJ decision granting a claim petition.

. This Court’s scope of review is limited to determining whether the Board’s decision is supported by the evidence, whether it committed an error of law or whether it violated Claimant’s constitutional rights. 2 Pa.C.S. § 704; Roman v. Department of Corrections, 808 A.2d 304 (Pa.Cmwlth.2002).