An Employer is responsible for reimbursement of medical treatment expenses which are:Reasonable;
An Employer may remain responsible for medical expense reimbursements for a compensable work injury, until the parties enter into a compensation agreement or a WCJ issues a decision regarding ongoing responsibility.
The parties may enter into a Compromise & Release settlement agreement (LIBC-755) regarding indemnity wage loss benefits and not alter the rights and responsibilities of each party regarding medical expenses. In this instance, the "finality" desired in many settlement agreements, may not occur.
Massage therapy may be reasonable and necessary treatment of a work-related injury under specific circumstances.
Moran v. WCAB (McCarthy Flowers), No. 830 C.D. 2013, a reported decision of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McGinley on October 16, 2013, addressed this "post-settlement" medical expense issue.
Factual and Procedural Background
Employee injured his low back, described as an L4-5 disc herniation, in July 1997. About 5 years later, the Employee and Employer entered into a Compromise & Release settlement for a lump sum of indemnity wage loss benefits. Responsibility of the Employer for reasonable and necessary medical expenses continued.
Employer filed a Utilization Review request (LIBC-601) in May 2010, to challenge the reasonableness and necessity of treatments rendered to Employee by Gail Kozlowski, LPN, including massage therapy.
The Employer's UR request was assigned to Rehabilitation Planning Inc, by the Bureau of Workers' Compensation. Heather Krull, LPN issued a UR determination in July 2010.
UR Determination was that massage therapy, (understood as NMT, friction and myofascial release/compression, application of a topical pain reliever "ChinaGel", was not reasonable, as provided by Kozlowski, LPN.
Employee Petition to Review the UR Determination before the WCJ.
Employee submitted 2 reports from Kozlowski. She provided massage for low back pain, under the prescription, direction and recommendation of Dr. Michael D. Wolk. She performed this therapeutic treatment:
[ Query: did Wunsch have the statutory authority to provide any statement of who is/is not a "provider" pursuant to the Pennsylvania Workers' Compensation Act? The term "provider" is defined at Section 109 and Regulation 127.3 as "a health care provider".]
WCJ found: Kozlowski meets the definition of a "health care provider";
She is licensed by PA as a Licensed Practical Nurse;
She provided treatment under the order of Dr. Wolk.
WCJ rejected Employer argument that this case was bound by the holding of the prior appellate court decision at Boleratz v. WCAB (Airgas, Inc.)932 A.2d 1014 Pa. Cmwlth. 2007).
Boleratz denied reimbursement to a non-licensed healthcare provider for massage therapy.
HERE, Kozlowski is a licensed healthcare provider.
WCJ noted he addressed the "credentials" of Kozlowski to provide massage therapy treatments in 2 prior decisions.
WCJ noted Employer evidence from Krull only addressed the "credentials"of Kozlowski to provide this treatment, this evidence did not address the "merits" of the massage therapy provided.
The RESULT. The Employee petition was granted to the extent that Employer only argued that Kozlowski could not even provide these massage services. On this basis, the Employee petition was granted, the UR Determination was "reversed" and Employer remained responsible for payment of this work-related treatment.
WCAB reversed the WCJ in Employer appeal.Nothing in the evidentary record supports the assertion that massage therapy is within the scope of the practice of Kozlowski as an LPN. Massage must be a medical service which the provider (Kozlowski) is licensed to provide pursuant to physician orders. As Kozlowski has a certificate, but is not licensed by PA as a massage therapist, her services for massage therapy are not reimbursable under the Act. slip opinion page 6.
Commonwealth Court reversed and reinstated the WCJ decision to allow reimbursement.
The statute describing care authorized by LPN's states (in part) ... the LPN functions as a member of the health-care team ... LPN administers medication and carries out therapeutic treatment ordered for the patient ... the LPN may accept a written order for medication and therapeutic treatment from a practitioner authorized by law and by facility policy to issue orders for medical and therapeutic measures. See: Pa. Code 21.145(a)-(b)(1).
Employer failed to establish that massage therapy did not come under the duties of an LPN.
Employer evidence (the UR Determination) failed to address the merits of whether the treatment rendered by Kozlowski was reasonable and necessary.