In the last few months, the Pennsylvania Bureau of Workers’ Compensation has launched two (2) new forms, one being a new Notice of Workers’ Compensation Denial (“NCD”), the second being a new Utilization Review Request form (“UR”).
The forms are available through the Bureau’s web portal at the Office of Adjudication, an agency under the authority of the Pennsylvania Department of Labor and Industry.
The new NCD has two key changes.
The first change, a critical one, is that the NCD specifically precludes allowing an employer/insurer to use an NCD to “accept” a “medical-only” claim. The form sets forth as follows:
“Do not use this form to accept a medical-only claim.”
Is that clear enough for you, or do you need it spelled out?
This form abrogates a practice that had been adopted by some employers and insurers in the confusing wake of several Commonwealth Court decisions that had dealt with what, if any, Bureau forms needed to be filed by employers/insurers, when confronted with medical-only claims, being claims with no lost time, and no liability for the payment of indemnity compensation benefits.
The confusing list of “medical-only” cases become legion, although the key case was Lemansky, 738 A.2d 498 (Pa. Cmwlth. 1999).
As all will painfully recall, Lemansky spawned several troubling post-Lemansky rulings by the Commonwealth Court, including Waldameer Park, 819 A.2d 164 (Pa. Cmwlth. 2003), and Orenich, 863 A.2d 165 (Pa. Cmwlth. 2004), resulting in the Bureau, in an administrative ricochet from a line of fawning sycophant decisions that were, statutorily, and administratively, capriciously mercurial, and seemingly inconsistent in their illogic, promulgating, without any statutory regulatory authority whatsoever, the forms now being utilized, for “acceptance” of a “medical-only” claim, to include the Notice of Compensation Payable, permitting the “acceptance” of a “medical-only” claim, the same election being possible under a Notice of Temporary Compensation Payable.
With the issuance of the revised Notice of Compensation Payable, permitting the “acceptance” of a “medical-only” claim by employers/insurers, the Bureau now routinely rejects “medical-only” claims that are being accepted by an employer/insurer under a Notice of Compensation Denial, whereby the employer/insurer indicates that the claim was being denied for “indemnity” purposes, meaning that there was no lost time, nor liability for the payment of indemnity compensation benefits, although the employer/insurer was agreeing to pay for reasonable, necessary and related medical expenses, in the course of which the employer/insurer specifically described the “injury” for which medical expenses would be compensated.
The utilization of an NCD to pay medical expenses in a “medical-only” claim was discontinued by almost anyone familiar with Pennsylvania Workers’ Compensation practices and procedures, with the Bureau’s issuance of the current NCP and NTCP.
Now, the Bureau has effectively, again without any statutory or regulatory authority, prohibited all involved with the acceptance or denial of workers’ compensation claims from using a Notice of Compensation Denial to pay medical expenses in “medical-only” claims.
And thank you for that clarification.
The second key change to the NCD is that the Notice now requires that the employer/insurer indicate the date on which the alleged injury or claimed disability was reported to the employer/insurer, such that the employer/insurer is now being required, in the course of denying a workers’ compensation claim, to indicate when it received notice of the claim, notice being sufficient to satisfy Section 311 of the Act, requiring that the “injury” or “claimed disability” be reported by the employee to the employer/insurer within twenty-one (21) days of the alleged injury, with the employer/insurer having no liability for the payment of workers’ compensation benefits, until that notice is given, and, if the notice is not given within 120 days of the alleged injury, compensation benefits are, with great and not insincere deference to the discretionary powers of the Workers’ Compensation Judges that we appear before hearing our case, forever precluded from being paid.
The requirement that the employer/insurer confirm the date upon which notice is given to the employer/insurer by the injured employee is a very significant change in the NCD form, particularly as this form is admissible in any workers’ compensation litigation involving the acceptance or denial of liability for a workers’ compensation claim.
As we all know, both the Pennsylvania Workers’ Compensation Act and the Bureau’s regulations permit compensation stakeholders, to include the employee, the employer, and/or the insurer, to request utilization review of current, retrospective, or prospective medical care/treatment for “accepted” work injuries.
Caution is advised against using a Utilization Review if the claim has not been “accepted”, as the filing of the Utilization Review Request will result in a potential “acceptance” of the claim.
Post-acceptance, the Utilization Review process can be an effective methodology/procedure for determining the reasonableness and necessity of medical care being administered to an injured employee.
Recently, the Bureau promulgated a new Utilization Review Request form, which appears to be a much more readable form, with the form having been “dumbed down”, to allow the form to be more understandable, particularly in terms of the information required by the form, as to the employee, the employer, the insurer, and any providers under review.
The UR form permits review of multiple providers under a single filing, with the form providing for the identification of five (5) providers to be reviewed, while also allowing additional treating providers to be identified on an addendum to the form itself.
The form requires the signature of the requesting party, or its representative, and it also requires that service on all parties, attorneys and providers be attested to on the form.
The form also specifically prohibits/precludes the attachment of “depositions, medical records, IME reports, or any other document not specifically requested” under the UR Request Form; disallowed attachments will not be referred to the URO facility.
Keep in mind that the UR process charges the URO with securing the records to be reviewed, as the URO is charged with requesting the records for the treatment in question from the providers under review.
– By Kevin L. Connors
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