• August 18, 2014

    Insurer Relieved of Millions of Dollars in Medical Liability Case

    Written By: John E. Marquis


    The PA Workers’ Compensation Act provides that medical bills for treatment of a work related injury must be paid by the Insurer within 30 days of submission, unless the reasonableness and/or necessity of treatment is challenged under the Utilization Review process. The Act does not specifically define what constitutes reasonable and necessary treatment.

    Court decisions have previously established that treatment which is merely palliative in nature and produces no lasting benefit may be reasonable and necessary. It is not necessary for treatment to increase the injured employee’s work capacity in order for it to be reasonable or necessary. However, treatment that is meant to be palliative may be found unreasonable where the employee/claimant received no benefit despite years of treatment. 

    Facts of Case 

    Employee/claimant sustained an injury to his right knee in 1995, which led to claimant having an above-the-knee amputation in 2002, after which he utilized a prosthesis. The primary care physician began prescribing Actiq, a lozenge form of fentanyl, in 2003 for management of the claimant’s chronic pain from his work injury. Actiq is 100 times more powerful than morphine and is marketed to be used by physicians in the management of patients’ terminal cancer pain. 

    The Insurer sought Utilization Review of the pain management treatment on five occasions through 2010, all of which resulted in findings that such opioid treatment regimen was reasonable and necessary. The Insurer requested a challenge to the most recent determination that had been rendered in favor of the medical provider. By 2010, the medical expense levels being paid for the pain medication regimen had reached $30,000 per month.

    In a de novo hearing, additional evidence and argument was presented by John E. Marquis, Esq. of Hill Wallack, LLP. Such evidence included expert testimony from the Chief of Pain Medicine at Harvard’s Beth Israel Deaconess Medical Center.  

    Conclusion of the Court

    Accepting the arguments presented on behalf of the Insurer, the Workers' Compensation Judge concluded that all treatment provided by claimant’s physician had been neither reasonable nor necessary from 4/5/10 and ongoing. In doing so, the WC Judge credited evidence that:

    • The treating physician had been prescribing three times the maximum daily dosage of Actiq approved by the FDA for indications (management of chronic non-cancer pain) that did not comport with uses approved by the FDA.
    • The treating physician’s records failed to reflect that such medication regimen had improved the claimant’s overall function on any well-defined basis, including the comparative absence of any favorable impact upon the claimant’s subjective pain levels.
    • There are significant recognized risks for long-term opioid use to manage chronic pain, particularly given that the addictive medication Actiq was not approved for use in connection with the claimant’s work injury condition.
    • The treating physician failed to adequately address the material concerns raised by urine drug screens which objectively called into question whether the Claimant was taking all of and/or the full dosages for the powerful narcotics which have continuously been prescribed at a level well beyond that approved by the FDA. 

    Impact of Decision 

    Absent any successful appeal by the claimant, the Insurer is in a position to seek recovery from the Supersedes Reimbursement Fund in the estimated range of $2.0 to $2.5 million for medical bills paid during litigation after 4/5/10, which were eventually determined to be neither reasonable or necessary. The Insurer has also been relieved of several millions of dollars in future medical liability which would have been ongoing had the initial UR Determination not been overturned. 

    Please note that this is a trial level decision which may be appealed by the employee/claimant within the next 20 days.

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