Havenstrite v. Workers' Compensation Appeal Board

CONCURRING AND DISSENTING OPINION BY

Judge FRIEDMAN.

I concur with that portion of the majority’s opinion which affirms the decision of the Workers’ Compensation Appeal Board (WCAB) denying Charles E. Havenstrite’s (Claimant) petition to review medical treatment and/or billing and to review compensation benefits. I dissent, however, from that portion of the majority’s opinion which upholds the WCAB’s determination that chiropractic treatment rendered to Claimant by Joseph Intelisano, D.C., (Provider) after August 1, 2000, was neither reasonable nor necessary.

Claimant argues that where Thomas T. Kollars, D.C., (Reviewer) was unable to determine whether the chiropractic treatments were reasonable and necessary because of insufficient documentation, Reviewer was required to initiate a discussion with Provider pursuant to 34 Pa.Code § 127.469. Because Reviewer failed to do so, Claimant maintains that 34 Pa.Code § 127.471(b) requires that the issue be resolved in Provider’s favor. I would agree with Claimant.

34 Pa.Code § 127.469 (emphasis added) provides:

Duties of reviewers — consultation with provider under review.
The [Utilization Review Organization (URO)] shall give the provider under review written notice of the opportunity to discuss treatment decisions with the reviewer. The reviewer shall initiate discussion with the provider under re*1179view when such a discussion will assist the reviewer in reaching a determination. If the provider under review declines to discuss treatment decisions with the reviewer, a determination shall be made in the absence of such a discussion.

34 Pa.Code § 127.471(b) provides, “[i]f the reviewer is unable to determine whether the treatment under review is reasonable or necessary, the reviewer shall resolve the issue in favor of the provider under review.”

With regard to the treatment rendered by Provider, Reviewer’s report stated, “[c]hiropractic office notes are weak and sketchy. There are no regular progress reports by the Doctor of Chiropractic. The SOAP1 notes by the Doctor are weak and objective findings are handwritten and difficult to interpret.” (R.R. at 5a.) Reviewer opined that the chiropractic treatment rendered by Provider from August 1, 2000, through September 19, 2000, was unreasonable and unnecessary. In explaining his opinion, Reviewer stated,

I have come to my conclusion based on the review of the literature. Patient documentation was minimal, and progress noted is incomplete. It is my professional opinion that there is insufficient documentation to justify the care rendered between the dates of 8/1/00 and 9/19/00 .... [T]he treatment rendered to [Claimant] ... was not reasonable or necessary due to insufficient documentation.

(R.R. at 5a) (emphasis added).

In other words, Reviewer effectively admitted that he needed additional information to be able to make a determination. Indeed, Reviewer indicated that the handwritten objective findings were “difficult to interpret,” and he based his decision on the fact that there was “insufficient documentation.” (R.R. at 5a.) Clearly, where the provider under review has not kept good records or where the handwriting of the provider under review is “difficult to interpret,” a discussion with the provider under review will assist the reviewer in reaching a determination. Where a discussion will assist the reviewer in reaching a determination, 34 Pa.Code § 127.469 mandates that the reviewer initiate such a discussion. Here, however, Reviewer did not attempt to initiate a discussion with Provider.2 (R.R. at 5a.) Given that Reviewer did not initiate any discussion with Provider despite insufficient documentation and difficulty in interpreting Provider’s handwritten notes, I fail to see how Reviewer was able to determine whether the treatment was reasonable or necessary. In such a case, the regulations required Reviewer to resolve this issue in favor of Provider. 34 Pa.Code § 127.471.

This result also is supported by 34 Pa. Code § 127.472. That regulation requires that a reviewer’s report contain “a detailed explanation of the reasons for the conclu*1180sions reached by the reviewer, citing generally accepted treatment protocols and medical literature as appropriate.” 34 Pa. Code § 127.472. Clearly, this regulation contemplates that the reviewer’s determination of reasonableness and necessity be based on a reason regarding the nature of the treatment; it does not contemplate that the decision be based on illegible handwriting or poor record keeping. Indeed, the majority’s result can lead to the denial of needed medical treatment based on nothing other than a reviewer’s inability to read and understand a provider’s notes.3

In reaching its decision, it is noteworthy that the majority never addresses the regulations of the Bureau of Workers’ Compensation (Bureau) in its analysis of this issue. Instead, the majority relies solely on three decisions of this court: Seamon v. Workers’ Compensation Appeal Board (Sarno & Son Formals), 761 A.2d 1258 (Pa.Cmwlth.2000), petition for allowance of appeal granted, 566 Pa. 654, 781 A.2d 150 (2001), appeal dismissed as improvi-dentily granted, 572 Pa. 410, 816 A.2d 1096 (2008); Solomon v. Workers’ Compensation Appeal Board (City of Philadelphia), 821 A.2d 215 (Pa.Cmwlth.2008); and Bolinsky v. Workers’ Compensation Appeal Board (Norristown State Hospital), 814 A.2d 833 (Pa.Cmwlth.2003). I disagree that any of these cases controls here.

Essentially, the majority sees the issue before us as one that turns on the WCJ’s credibility determinations and the weight accorded the evidence. Relying on Seam-on and Solomon specifically, the majority states that any defects in the utilization review process, if challenged, can be addressed by the WCJ in a hearing on the merits. Moreover, although Seamon and Solomon involved the lack of information from providers other than the provider under review, the majority does not believe that this is a relevant distinction. However, with this position, the majority ignores a critical distinction. Unlike Reviewer in this case, the UR reviewers in Seamon, Solomon and Bolinsky did not indicate that they could not render an opinion due to the lack of medical records or the inability to interpret existing records. Consequently, the UR reviewers in those cases were not precluded from making a determination of reasonableness and necessity. In the present case, however, Reviewer felt he had insufficient documentation and admitted that he had difficulty interpreting Provider’s handwriting. I fail to understand how a reviewer can determine if treatment is reasonable or necessary if he cannot even decipher and, consequently understand, exactly what the treatment at issue entailed. As stated, in such a case, the regulations required Reviewer to resolve this issue in favor of Provider.4 34 Pa.Code § 127.471.

*1181Accordingly, I would hold that the WCAB and the WCJ erred in determining that the treatment rendered by Provider was neither reasonable nor necessary.5

Judge SMITH-RIBNER and Judge LEAVITT join in this concurring and dissenting opinion.

. The record does not indicate the meaning behind this acronym.

. Reviewer states there was no telephone conversation because Provider did not request one. (R.R. at 5a.) To the contrary, Provider testified that although he requested to speak with Reviewer, Reviewer never telephoned Provider. (R.R. at 63a, 64a.) I am not troubled by this controversy, however, because even if Provider did not request a conversation, once Reviewer realized that the records were difficult to interpret, Reviewer had an obligation under 34 Pa.Code § 127.469 to initiate a discussion with Provider in order to reach a proper determination. See Seamon v. Workers’ Compensation Appeal Board (Sarno & Son Formals), 761 A.2d 1258 (Pa.Cmwlth. 2000) (Friedman, J., dissenting), petition for allowance of appeal granted, 566 Pa. 654, 781 A.2d 150 (2001), appeal dismissed as improvidently granted, 572 Pa. 410, 816 A.2d 1096 (2003).

. The majority points out that Dr. Hubbard also opined that Provider’s treatment was not appropriate. However, this evidence is not substantial evidence to support the WCJ’s finding that the treatment was neither reasonable nor necessary because it is not competent as it relates to that issue. Disputes as to the reasonableness and necessity of treatment must be resolved through the UR process. Section 306(f.l)(6) of the Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531(6)(i). Further, only a URO authorized by the Commonwealth’s Department of Labor and Industry may engage in UR, and UR of all treatment must be performed by a provider licensed in the same profession and having the same or similar specialty as the provider under review. 77 P.S. § 531(6)(i). Here, there is no indication that Dr. Hubbard’s report resulted from the UR process or that he was part of any URO; additionally, he is an orthopedic surgeon.

. I point out that, in Bolinsky, this court did not consider the Bureau’s UR regulations at issue here. Therefore, Bolinsky does not control the present case.

. This does not mean that Employer would be liable for all of Provider’s treatment, however. Because Claimant’s work-related injury is limited to a left bicep strain. Employer would not be responsible for any of Provider’s treatment for injuries beyond the left bicep muscle.