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The Legal Doctrine of Collateral Estoppel as a Bar to Repeat Utilization Reviews

November 17, 2021
February 1, 2019

In Temple East v. Workers’ Compensation Appeal Board (Perri), No. 268 C.D. 2018 (December 20, 2018), the Commonwealth Court addressed whether the doctrine of collateral estoppel could be used to bar an employer from repeatedly filing Utilization Reviews for the same treatment.

In that matter, on January 9, 2009, the claimant sustained a work related injury that was subsequent accepted as compensable via a Notice of Temporary Compensation Payable (NTCP) that described the work injury as sprain/strain injuries to the left knee, left wrist and neck. Thereafter, on January 29, 2014, the parties executed a Compromise and Release Agreement that was approved by a WCJ Decision/Order that resolved the wage loss portion of the claimant’s claim.  

On July 16, 2014, the employer filed a Utilization Review (UR) Request relative to the treatment that the claimant was undergoing with Daryl Levin, LPT. Jay Kauffman, LPT rendered a UR Determination on September 12, 2014 that found that the claimant’s aqua and land therapy was neither reasonable nor necessary. The claimant then filed a Petition to Review the Utilization Review Determination and, by WCJ Decision/Order circulated on April 7, 2015, the WCJ granted the claimant’s Petition concluding that the treatment was reasonable and necessary as of June 2, 2014 and ongoing.

Approximately one month after the WCJ Decision/Order, on May 11, 2015, the claimant underwent an IME with Dr. Murphy who concluded that the claimant had reached maximum medical improvement and did not require any ongoing formal therapy. Following receipt of the IME report, on June 10, 2015, the employer filed a second UR Request relative to the claimant’s ongoing aqua and land therapy. By UR Determination dated August 11, 2015, the treatment was found to be neither reasonable nor necessary.

In response to the second UR Determination, claimant filed a Petition to Review Utilization Review Determination.

By WCJ Decision/Order circulated on March 31, 2016, the WCJ concluded that the employer was collaterally estopped from challenging the reasonableness and necessity of the aqua and land treatment because the exact same treatment modalities were the subject to the prior UR and WCJ Decision/Order. The WCJ further concluded that the employer did not sustain its burden of proof and presented an unreasonable contest to the matter and, therefore, awarded unreasonable contest fees in the amount of $1,500.00.

The employer appealed and, by WCAB Decision/Order dated February 7. 2018, the WCAB affirmed the WCJ’s finding that the employer was collaterally estopped from challenging the reasonableness and necessity of the treatment provided because the employer did not show that the claimant’s condition had changed or that a substantial period of time had elapsed since the prior determination. However, the WCAB reversed the granting of the unreasonable contest fees on the basis that the IME report of Dr. Murphy was sufficient in establishing a reasonable contest.

On March 5, 2018, the employer filed a Petition to Review and, on April 6, 2018, claimant filed a cross Petition for Review challenging the reversal of the unreasonable contest fees.

First, the Court addressed the employer’s Petition. In doing so, it noted that the doctrine of collateral estoppel prevents litigation of questions of law or issues of fact that already have been litigated in an earlier action. In doing so, the Court noted that collateral estoppel is based on the policy that a losing party is not entitled to a rematch after suffering a fair loss in an adversarial proceeding on an issue identical to the issues the party subsequently seeks to raise.  

The Court also looked at their prior decision in Cary v. Workers’ Compensation Appeal Board (Philadelphia School District), 18 A.3d 1282 (Pa. Cmwlth. 2011) in which the Court found that there must be a substantial difference in the length of time between UR requests relative to the same treatment.