July 3, 2014
Claimant Nancy Palusi (the name of our client has been changed for purposes of this article) was employed by H.E. Rohrer as a bus driver. On January 13, 2012, she slipped and tripped off a bus step, breaking her left leg and landing on her left side, also hitting her left elbow and shoulder upon landing. She was taken by ambulance to the emergency room. The workers’ compensation insurance carrier is American Zurich Insurance Company and was found liable for this work injury. Nancy was initially off work and received total disability wage loss benefits, and eventually returned to work modified duty and was entitled to weekly partial disability benefits because she was earning less per week in gross wages as compared to her pre-injury Average Weekly Wage.
Because the carrier refused to pre-approve the medical treatment, we filed a Utilization Review Request in April 2013 to address the reasonableness and necessity of a solean sling release, post tibial nerve, tarsal tunnel release and evacuation of sinus tarsi surgery recommended by Dr. Seth Seber, DPM. Dr. Francine Williams, DPM performed the Utilization Review and felt that the information was limited in Dr. Seber’s medical records and that t Nancy’s negative test results did not provide enough information to find that the surgery was warranted or beneficial for Claimant. Dr. Williams further felt that normal EMG findings do not support a diagnosis of nerve entrapment. Claimant appealed this Determination by filing a Petition for Review of Utilization Review Determination.
Judge Wayne Dietrich in Harrisburg PA heard the Petition. The URO Determination of Dr. Francine Williams was submitted into evidence by Defendant. Claimant NANCY PALUSI submitted into evidence the report of Dr. Seth Seber, who evaluated her for surgery at the request of her treating physician, Dr. Mark Perlmutter. During the surgical evaluation, Dr. Seber performed an exam, along with systematic diagnostic injections to determine the extent of relief of Claimant NANCY PALUSI’s symptoms and to determine that her nerve pain was originating from the posterior tibial nerve. Dr. Seber recommended surgery and Dr. Perlmutter agreed, as all other conservative treatments had failed. We also presented evidence of late and non-payment of workers’ compensation checks.
WCJ Dietrich found Claimant Nancy and Dr. Seder credible, as Dr. Seder’s examination was more complete and thorough than the records review by Dr. Williams, and he discussed Claimant’s problems with her treating physician. The WCJ rejected Dr. William’s URO report. The WCJ found that Defendant failed to sustain its burden of proving that the solean sling release post tibial nerve, tarsal tunnel release, and evacuation of sinus tarsi surgery was unreasonable and unnecessary. Defendant was ordered to pay for the surgery. Even if they appeal the decision, the surgery must be paid for by the carrier. This is better than “pre-approval.” WCJ Dietrich also found that Claimant we proved that Defendant violated the Workers’ Compensation Act by failing to timely pay workers’ compensation benefits, and awarded 50% penalties on the late workers’ compensation checks owed her. disability benefits. Costs of litigation and attorney fees for unreasonable contest were also awarded to be paid by the workers’ compensation insurance company.
