Theresa Skay v. Borjeson & Maizel, LLC (Workers’ Compensation Appeal Board No. 999 C.D.2021 filed May 10, 2022)

Claimant filed a Penalty Petition alleging that Employer unilaterally refused to pay for some of her prescription medication that had been previously found to be reasonable and necessary in an unchallenged Utilization Review Determination.  The WCJ denied the Penalty Petition.  On appeal, the WCAB affirmed the WCJ.  Claimant appealed to the Commonwealth Court.

On December 18, 2009, Claimant fell while in the course and scope of her employment.  As of May 21, 2013, Claimant’s work injury was described as “status post L5-S1 fusion, bilateral S1 joint disease with SI joint mediated pain and reflex sympathetic dystrophy of the lower extremities.”

Utilization Review Determinations were issued on April 17, 2015 and December 11, 2017 finding all medication prescribed was reasonable and necessary.

Claimant entered the Utilization Review Determinations into evidence to support her claim in the Penalty Petition that the unpaid medical bills were related to the accepted work injury.  The WCJ ruled that Claimant failed to present any evidence to establish that the denied medications were related to the work injury.  The WCJ accepted Employer’s experts who found that the medications at issue were not related to the work injury.

Claimant appealed to the WCAB asserting that the WCJ erred as a matter of law because the Utilization Review Determinations were not appealed and therefore established that the medications were reasonable and necessary.  The WCAB ruled that the UR Determinations only decide the reasonableness and necessity of treatment and not the causal relationship.

On appeal to the Commonwealth Court, Claimant again argued that the WCJ erred as a matter of law by denying the Penalty Petition because Employer unilaterally refused to pay for medical treatment that had been subjected to an unchallenged UR Determination. The Court indicated that an Employer can unilaterally refuse to pay for medications because it believed that those prescription medications were not causally related to Claimant’s work injury.

The Court stated that while Employer was legally permitted to refuse to pay medical bills it would have been liable for penalties if a WCJ determined that the medications at issue were causally related to Claimant’s work injury.

In conclusion, the Court ruled that UR Determinations cannot be used to establish the causal relationship between treatment and a work injury.

By: Mary S. Kohnke Wagner