In an era where opioid medication usage has risen to the level of “crisis,” it is ever important to understand the ways in which a carrier can limit liability for the use of these types of medications, when prescribed as part of long-term treatment regimens. One of those ways is through utilization review – but be wary of filing serial reviews without a change in physical condition or significant passage of time between requests.
In Fanning v. WCAB, No. 992 C.D. 2018 (Pa. Cmwlth. 2019), the Commonwealth Court was faced with deciding whether or not utilization review of claimant’s treating doctor was barred, because of prior decisions finding the treatment to be reasonable and necessary.
In this case, claimant was injured while working in the course and scope of employment as an electrician on October 7, 1987. In February, 2015, the defendant filed for utilization review (hereinafter “UR”) of treatment from Dr. Koenigsberg, effective only December 29, 2014. The reviewing doctor, Dr. Cicuto, found that this one day of treatment was reasonable and necessary.
Regarding the litigation on appeal, in December, 2015 the defendant filed for UR of Dr. Koenigsberg’s treatment effective October 14, 2015, ongoing. In February, 2016, Dr. Cicuto, the same reviewing doctor, found that continued opioid and Valium prescriptions were unreasonable and unnecessary. Claimant filed a UR Review Petition. During litigation, claimant submitted WCJ Burman’s 2011 UR Review Decision, finding continued receipt of medications prescribed by Dr. Koenigsberg to be reasonable and necessary. Claimant also submitted WCJ Callahan’s 2014 Forfeiture Petition Decision, concerning the testimony and findings surrounding claimant attending a detoxification program, which he was willing to do, but only after Dr. Koenigsberg told him medication was unnecessary.
Claimant also sought to introduce Dr. Cicuto’s original UR Report which covered the one date of treatment in December, 2014 and the judge precluded said evidence. Ultimately, the judge denied and dismissed the UR Review Petition. Claimant appealed. In part, he argued that prior decisions finding the same treatment reasonable and necessary collaterally estopped defendant’s request for further review of the same treatment, without having shown a change in physical condition from that prior litigation.
The court noted that in C.D.G., Inc. V. WCAB (McAllister), 702 A.2d 873 (Pa. Cmwlth. 1997), the court held that “collateral estoppel or issue preclusion is designed to prevent relitigation of issues which have once been decided and have remained substantially static, factually and legally.” Therefore, the court went on to state that to avoid this “a party seeking to alter benefits must prove that there has been a change in physical condition since the last legal proceeding addressing the nature and extent of injury.” Otherwise, a constant stream of UR Requests would “vitiate the application of the doctrine of collateral estoppel . . . where the treatment and claimant’s condition remain the same even though time has passed.” However, the court noted that it is equally important to note that they held in Gary v. WCAB (Phil. School Dist.), 18 A.3d 1282 (Pa. Cmwlth. 2011) that “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” because “it is possible that a treatment may be initially reasonable, but if it does not prove to be beneficial over time, a different treatment may become more appropriate.”
The court in this case pointed out that the 2011 decision related to treatment in 2010, ongoing, while the current litigation related to treatment more than five years later in October, 2015, onward, so Gary was more persuasive than C.D.G. because of the passage of time between the UR requests. Additionally, the court noted that the dosages of the prescriptions changed from 2010 to 2015, so that would be evidence of a change in claimant’s condition. Additionally, the 2011 decision had an issue of weaning the claimant from narcotic medication altogether, which was not at issue in the current litigation, so the issues were not the same.
The court also found that the 2014 decision focused on the benefit the claimant would receive from a detoxification program and while medical evidence of medication usage was elicited, it was not the focus of the decision, or essential to the final judgment.
Accordingly, collateral estoppel did not apply based upon either decision and there was evidence of a change in physical condition. The court noted then, that they affirmed the decision of the board, which affirmed the decision of WCJ Makin.
While doing so, however, the Commonwealth Court noted that they were “constrained to affirm” WCJ Makin’s decision in this case, which is alarming considering that many pain management doctors keep claimants on long-term prescription and injection regimens, which are extremely expensive. The actual medications, dosages, and frequency of use do not change. However, waiting five years is not economically efficient to ensure that the passage of time would preclude a collateral estoppel argument, since Gary and this case both cover an approximate five year span between formal reviews. To be safe, carriers or third party administrators seeking to file for utilization review closer than five years apart regarding the same treatment, should be on the lookout for long-term use of a particular treatment without improvement, and an actual change in physical condition.
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