Wednesday, November 29, 2006

Commonwealth Court Confirms WCJ Should Take Limited Evidence On Petition to Review Utilization Review That Is Granted For Lack of Records

In R. Gazzola v. WCAB (Ikon Office Solutions) the Employer's Utilization Review was granted when the treating physician did not provide records. The WCJ dismissed the Claimant's Petition to Review the Utilization Review Determination under County of Allegheny v. Workers’ Compensation Appeal Board (Geisler), 875 A.2d 1222 (Pa. Cmwlth. 2005).

The WCJ stated, however, that the better procedure would be to take evidence on whether the treating physician had an excuse for not providing records.

I presumed this authority in my post on Geisler on June 6, 2005.

The Court endorsed the procedure as stated by the WCJ. The WCJ may take evidence on whether there was an excuse for the failure to provide records, and if there is a reasonable excuse, the WCJ may Order that the URO be performed on the treatment at issue.

Tuesday, November 21, 2006

Results Similar With or Without Lumbar Disk Surgery

The New York Times covered a recent study from JAMA finding patients with ruptured lumbar disks recovered with or without surgery. The study also found there was no harm in choosing the non surgical route.

Monday, November 13, 2006

Articles On Passage of Act 147

Articles on the passage of Act 147 include a release by the Pennsylvania Chamber of Business and Industry and general information. The Chamber release states the changes will speed up the system and reduce the cost of litigation. The legislation will do this primarily by requiring scheduling orders and mediation, tools we have been using effectively in this area for some time.

The mediation provisions of the Act will speed up litigation in areas where mediation was not available before, but in workers' compensation the parties typically have to litigate to gain discovery of the facts of a case. There is no formal pre-hearing discovery procedure.

The parties can mediate at any time, but it is effective only when the parties understand what the evidence, and thus the value, will be. The Act does not require the mandatory mediation conference to be scheduled until thirty days prior to the date closing submissions are due.

I recently mediated a case not yet in litigation. The Employer had a favorable IME they did not act upon. The Claimant requested the mediation to see if the Employer would give a reasonable settlement offer before the Claimant was due to become Medicare eligible in a few months.

The case did not settle. The Claimant did not really consider the risk of termination from the IME because the Employer hadn't filed after receiving the report. The carrier did not want to pay a premium amount, because it had a favorable report in hand. We did not know what the Claimant's treating physician would say.

I brought them within $15k of each other, and the case may settle, but I would be concerned it would be an unjust settlement. Unjust to the Employer, under the present facts (remember, I read the IME). Then again, I didn't see anything from the treating physician.

The bottom line, however, is that there will be more mediation because it works. The parties should expect it and get prepared to request the mediation conference they are entitled to at the earliest reasonable opportunity.

Wednesday, November 01, 2006

"Spine" Journal Article About Use of Spinal Fusion

According to an article in the new edition of the journal Spine, rates of lumbar spinal fusion surgery for chronic back problems have increased in recent years, with no improvement in overall results and a significant increase in complications. Abstract

Abstract of a study comparing MRI findings in nurses and secretaries with and without low back pain.