T. Skay v. Borjeson & Maizel LLC (WCAB) ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Theresa Skay, :
Petitioner :
:
v. : No. 999 C.D. 2021
: Submitted: January 28, 2022
Borjeson & Maizel LLC :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: May 10, 2022
Theresa Skay (Claimant) petitions for review of the Workers’ Compensation
Appeal Board’s (Board) August 16, 2021 Order that affirmed a Workers’
Compensation Judge’s (WCJ) October 27, 2020 Decision denying Claimant’s
Penalty Petition. On appeal, Claimant argues the Board erred as a matter of law, as
Borjeson & Maizel LLC (Employer) unilaterally refused to pay for some of
Claimant’s prescription medications that had been previously found to be reasonable
and necessary in an unchallenged Utilization Review (UR) Determination. Upon
review, we affirm.
I. Background
On December 18, 2009, Claimant fell in a crosswalk while in the course of
her employment. Reproduced Record (R.R.) at 18a. By May 21, 2013, Claimant’s
work injury had been established as “status post L5-S1 fusion, bilateral SI joint
disease with SI joint mediated pain,” and “reflex sympathetic dystrophy of the lower
left extremity.” Id. A WCJ denied Claimant’s Review Petition, which sought to add
mood disorder and major depressive episodes to the work injury, on July 30, 2019.
Id. That WCJ also found that Claimant “does not suffer from postural orthostatic
tachycardia syndrome [POTS].” Id.
During Claimant’s receipt of workers’ compensation benefits, UR
Determinations were completed on August 17, 2015, and December 11, 2017. Id.
Both UR Determinations found that every medication prescribed to Claimant by
Emique Aradillas-Lopez, M.D. was reasonable and necessary. Id.
On November 12, 2019, Claimant filed a Penalty Petition, alleging that
Employer violated the Workers’ Compensation Act (Act)1 by failing to pay for some
of Claimant’s prescription medications. R.R. at 19a. Many of the medications for
which Employer ceased payment had been approved as reasonable and necessary as
part of the 2015 and 2017 UR Determinations. R.R. at 230a-31a, 245a.
After conducting hearings and reviewing the evidence in this matter, the WCJ
found that “the unpaid bills . . . were due to a lack of causal relationship or a billing
code issue. Claimant failed to present any medical evidence to establish that the
denied medications were related to the work injury or the bills were ever
re-submitted with the proper coding.” R.R. at 22a. The WCJ accepted the opinions
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
of Employer’s experts, found that the medications at issue were not related to the
work injury, and denied Claimant’s Penalty Petition. R.R. at 20a-22a.
Claimant appealed to the Board, asserting that the WCJ erred as a matter of
law, because the UR Determinations, which were not appealed, showed that the
prescription drugs at issue were being utilized to treat Claimant’s work injuries. R.R.
at 26a-27a. The Board pointed out that UR Determinations only decide the
reasonableness or necessity of treatments and not the causal relationship to the work
injury. R.R. at 41a. As a result, the Board opined that Claimant could not rely on
the prior UR Determinations to establish a causal relationship to the work injury.
R.R. at 42a. Since Claimant failed to present any other evidence to establish a causal
relationship to the work injury, the Board found that Claimant failed to meet her
burden of proving the prescription drugs at issue were related to the work injury. Id.
Accordingly, the Board affirmed the WCJ’s denial of Claimant’s Penalty Petition.
R.R. at 43a.
II. Discussion
On appeal, Claimant again argues that the WCJ “erred as a matter of law by
denying the Penalty Petition because the Employer unilaterally refused to pay for
medical treatment that had been subjected to an unchallenged [UR] Determination
that found the treatment reasonable and necessary.” Petitioner’s Br. at 12. Claimant
does not present any other challenges to Employer’s evidence that the prescription
medications at issue in this matter were unrelated to the work injury. See id. at 18-22.
Instead, Claimant relies solely on the prior, unchallenged UR Determinations, which
Claimant believes established that the prescription medications at issue in this matter
“were determined to be reasonable and necessary for treatment of Claimant’s work
injuries.” Id. at 18.
3
In a workers’ compensation appeal, we are “limited to determining whether
necessary findings of fact are supported by substantial evidence, whether an error of
law was committed, or whether constitutional rights were violated.” Elberson v.
Workers’ Comp. Appeal Bd. (Elwyn, Inc.), 936 A.2d 1195, 1198 n.2 (Pa. Cmwlth.
2007).
“Under the Act, . . . an employer is only liable for payment of benefits, both
compensation and medical, arising out of work-related injuries.” Mulholland v.
Workmen’s Comp. Appeal Bd. (Bechtel Constr.), 669 A.2d 465, 467 (Pa. Cmwlth.
1995) (citing Section 301(c)(1) of the Act, 77 P.S. § 411(1)) (emphasis in original);
see also Section 301(a) of the Act, 77 P.S. §431. UR Determinations “decide only
the reasonableness or necessity of the treatment under review,” and they do not
decide “[t]he causal relationship between the treatment under review and the
employe’s work-related injury.” 34 Pa. Code §§127.406(a), 127.406(b)(1). The
payment of medical expenses2 and the filing of a UR Determination request also do
not “establish a causal connection between a medical condition and a claimant’s
work injury.” Securitas Sec. Servs. USA, Inc. v. Workers’ Comp. Appeal Bd.
(Schuh), 16 A.3d 1221, 1224 (Pa. Cmwlth. 2011).
If an employer believes that a claimant’s medical expenses are not causally
related to the claimant’s work injuries, the employer may unilaterally stop paying
for those medical expenses. Listino v. Workmen’s Comp. Appeal Bd. (INA Life Ins.
2
Although Claimant noted before the Board that Employer was paying for some of the
medications after the December 2017 UR Determination, Claimant did not argue that Employer’s
prior payments for the prescriptions at issue established their connection to the work injury.
Claimant also did not raise or brief this issue on appeal. Therefore, the issue is waived. See
Pa.R.A.P. 2116-2119; Pa. Gaming Control Bd. v. Unemployment Comp. Bd. of Rev., 47 A.3d 1262,
1265 n.5 (Pa. Cmwlth. 2012) (concluding that failure to develop an issue in a brief will result in
waiver).
4
Co.), 659 A.2d 45, 48 (Pa. Cmwlth. 1995). If an employer does so, however, the
employer “assumes the risk of exposure to possible penalty liability contingent upon
a [WCJ]’s ruling concerning the causal relation of the medical costs.” Id.In determining whether an employer may be liable for penalties for the
unilateral cessation of paying for medical benefits, this Court has
recognized a “clear distinction . . . between ‘reasonableness’ and
‘causation’ cases.” Listino, 659 A.2d at 47. “In all cases where an
employer questions the reasonableness and necessity of a claimant’s
work-related medical bills,” the “employer can never unilaterally cease
medical payments.” Id. at 47, n.6. But, an “employer, who questions
‘causation’ and the subsequent medical bills, may escape penalty
provision liability for unilaterally ceasing to pay for these medical bills,
if a [WCJ] later determines that the medical bills [were] indeed not
causally related to the work-related injury.” Id. at 47 (emphasis in the
original). In the latter scenario, “the employer is . . . not subject to
penalties under the Act.” Id.
W&W Contractors, Inc. v. Workers’ Comp. Appeal Bd. (Holmes) (No. 336 C.D.
2020, filed June 28, 2021), 258 A.3d 1164 (Pa. Cmwlth. 2021) (Table).
Employer unilaterally refused to pay for some of Claimant’s prescription
medications, because Employer believed that those prescription medications were
not causally related to Claimant’s work injury. Employer was legally permitted to
do this, but Employer would have been liable for penalties if a WCJ determined that
the prescription medications at issue were causally related to Claimant’s work injury.
See Listino, 659 A.2d 48; W&W Contractors, 258 A.3d 1164.
The only evidence Claimant presented or referenced to establish a causal
relationship between the prescription drugs at issue and the work injury was the prior
UR Determinations. As outlined above, UR Determinations do not decide the causal
relationship between treatments and the work injury. 34 Pa. Code §127.406(b)(1).
Thus, Claimant did not present any evidence establishing that the prescription
medications were causally related to the work injury. Accordingly, the WCJ’s
5
findings and the Board’s conclusions, that Claimant failed to establish that the
prescription medications at issue in this matter were causally related to Claimant’s
work injury, are free of legal error.
In addition to challenging the Board’s conclusion that the medications at issue
in this matter were not causally related to Claimant’s work injury, Claimant briefly
argued that Employer’s denial of payment for some of the medications due to billing
coding issues was improper. Claimant asserts that the billing coding issues are “no
legitimate defense,” and that the “carrier can change these codes at a whim” and
“cannot escape liability based on its own internal policy.” Petitioner’s Br. at 21.
Claimant did not provide any citations to authority for these assertions. This Court’s
function is not to develop the parties’ arguments, and we will not do so for Claimant.
See Commonwealth v. Brown, 196 A.3d 130, 185 n.21 (Pa. 2018) (stating that
appellate courts are “neither obliged, nor even particularly equipped, to develop an
argument for a party. To do so places the Court in the conflicting roles of advocate
and neutral arbiter.”) (citation omitted).
Additionally, we note that the WCJ did not find that Employer’s denial of
payment for medications due to billing coding issues was proper. Instead, the WCJ
found that Claimant failed to carry her burden of proof with regard to establishing
that Employer violated the Act by denying payment due to billing coding issues.
R.R. at 22a (finding that “bills were denied based on billing code issues and asked
to be re-submitted,” that one bill “was denied by the bill re-pricing company as ‘this
code is either deleted, non-covered, bundled, invalid or the status indicator is not
allowable under the provider’s jurisdiction,’ [and] [t]he [C]laimant’s counsel failed
to present any evidence that the bill was resubmitted with the proper coding,” and
that “[C]laimant failed to present any . . . evidence to establish that . . . the bills were
6
ever re-submitted with the proper coding”) (citation omitted). The Board similarly
concluded that Claimant “failed to present evidence that the bills . . . were
resubmitted with the proper . . . coding.” R.R. at 42a.
Having reviewed the record, we agree that Claimant did not present any
evidence to establish that the bills were resubmitted with the proper coding. Thus,
we conclude that the WCJ’s finding and the Board’s conclusion, that Claimant failed
to prove that Employer violated the Act, are free of legal errors. As a result,
Employer is absolved of penalty liability.
III. Conclusion
UR determinations cannot be used to establish the causal relationship between
a treatment and a work injury. Claimant failed to establish the causal relationship
between the prescription medications at issue in this matter and her work injury,
because Claimant only offered prior UR Determinations as proof of that causal
relationship. Additionally, Claimant failed to prove that Employer violated the Act
by denying payment due to billing coding issues, because Claimant failed to
introduce any evidence showing the bills were resubmitted with proper coding.
Accordingly, we affirm the Board’s order affirming the WCJ’s decision to deny
Claimant’s Penalty Petition.
______________________________
STACY WALLACE, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Theresa Skay, :
Petitioner :
:
v. : No. 999 C.D. 2021
:
Borjeson & Maizel LLC :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 10th day of May 2022, the Order of the Workers’
Compensation Appeal Board, dated August 16, 2021, is AFFIRMED.
______________________________
STACY WALLACE, Judge