Immunity from Testimony Under the Workers’ Compensation Act

By Robin M. Romano, Esq,*

As a rule of thumb, all parties and witnesses to a Pennsylvania workers’ compensation action can testify. There are, however, certain circumstances where a potential witness may possess immunity from testifying under the Act. Presumably, Section 306(f)(2)(5) provides this protection:

A person participating in utilization review, quality assurance or peer review activities, pursuant to this section, shall not be examined as to any communication made in the course of such activities or the findings thereof, nor shall any person be subject to an action for civil damages for actions taken or statements made in good faith.

The reasoning behind this immunity appears to have a sound basis, in that those performing Utilization Reviews, quality assurance and peer review activities, as employees of the Bureau of Workers’ Compensation or at the behest of the Bureau, should be safeguarded against cross-examination of defense counsel to ensure impartiality.

Recently, some Workers’ Compensation Judges have, although admittedly infrequently, invoked this section to prohibit defense counsel’s plan to depose a peer review doctor from testifying in connection with a Utilization Review Petition. It is arguably a violation of the defendant’s due process when a judge employs this section of the Act, because it prevents the party with the burden of proof from presenting evidence to support their case, while a claimant’s treating physician is not held to the same standard and may testify to the reasonableness and necessity of the treatment rendered to his patient.

In addition, a judge’s refusal to allow defense counsel to present the deposition of a peer review physician who has rendered a favorable UR Determination in support of its case has a very real impact on the cost of litigation. Defendants already incur extra costs when filing review petitions from Utilization Review Determinations rendered in favor of the treating physicians. When a defendant chooses to appeal an unfavorable Utilization Review Determination, it must be prepared to move forward with evidence to support its burden of proof with regard to that review petition at the judge level at the first hearing. What this means, practically speaking, is that defendants must secure either an independent medical evaluation or, at least, a records review by an independent medical examination physician prior to the first hearing on that Utilization Review Petition. This, of course, translates into an extra expense for the defendant. Should it become common practice among judges to prohibit a peer review doctor’s testimony at the de novo hearing level, a defendant will be forced to always obtain an independent medical evaluation and produce that doctor’s testimony at the de novo level as well.

Moreover, why should physicians and other practitioners of like specialty who are performing peer reviews pursuant to Utilization Review requests be subject to Section 306(f)(2)(5) of the Act? These practitioners are not employees of the Bureau. In fact, one legal treatise, Workers’ Compensation Law and Practice, Torrey Greenberg, mentions in its commentary at Section 9:136, that the immunity provided under Section 306(f)(2)(5) of the Act applies “only to those involved in utilization review, quality assurance and peer review activities in the context of coordinated care. Accordingly, nothing in the Act provides that a Utilization Review peer at a second-step UR Petition may not be subject to cross-examination.”

Litigating prospective Utilization Reviews under Section 306(f)(2)(5) may have other far-reaching consequences in the Utilization Review arena. This can occur, for example, when a claimant files a prospective Utilization Review Request seeking a determination as to whether a particular treatment is reasonable and necessary. Prospective Utilization Reviews are governed by Bureau Regulation 127.404(c), which states:

If an employee files a request for a UR of treatment, the Bureau will confirm whether the insurer is liable for the underlying alleged injury. The Bureau will process the UR Request only when workers’ compensation liability for the underlying injury has been accepted or determined.

Pursuant to this regulation, the Bureau must first ascertain whether the desired treatment is work related by sending a copy of the employee’s request for a prospective Utilization Review to the insurer, together with a written notice asking the insurer whether it will accept payment for the treatment or deny payment for the treatment. The insurer is then to respond, in writing, to the Bureau’s notice within seven days of the receipt of notice, advising the Bureau if the treatment in question is work related.

Recently, I handled a case where the claimant filed a prospective Utilization Review for surgery that she desired. The prospective Utilization Review Determination was rendered in favor of the employee. The insurer already had an opinion from their IME doctor that the surgery, although reasonable, was not work related. Thus, the defendant filed a petition to review, which was objected to by claimant’s counsel, given counsel’s reliance on Section 127.404. The adjuster, however, confirmed that he had no record of anyone from the Bureau contacting him about the claimant’s prospective Utilization Review Request for the desired surgery. Defense counsel’s attempts to subpoena the individual at the Bureau who would have been responsible for contacting the carrier in this instance were unsuccessful. Fortunately, the judge overruled the claimant’s objection to the defendant’s petition to review, in part because he acknowledged the impossibility of securing testimony from a Bureau employee pursuant to the immunity granted by Section 306(f)(2)(5).

Finally, Section 306(f)(2)(5) also extends to Fee Reviews. At the Bureau level, when a provider files a Fee Review Application, nurse auditors at the Bureau perform Fee Reviews. These individuals are also immune to subpoenas, and, thus, testimony with regard to how they make their determinations to approve or disapprove downcoding or crosscoding by a carrier are not subject to examination. Arguably, the nurse auditors’ determinations should be protected to ensure a truly independent process. However, one can also make the argument that there should be, at least, some written explanation rendered as to how the nurse auditors reached their conclusions and that this written explanation be available to all parties and permitted to be submitted into the record, with the option to subpoena an auditor’s testimony for direct and cross examination. This would ensure some kind of accountability at the Bureau level; that the auditors are rendering determinations consistent with the coding guidelines.

In conclusion, while the Pennsylvania Department of Labor and Industry seems to want to safeguard peer review medical experts and Bureau employees from the prospect of testifying in order to maintain their impartiality, it is important for insurers and employers to make certain that the Bureau is aware that this immunity translates directly into increased costs for defendants and, in some cases, provides the claimant with an unfair evidentiary advantage over the defendant.

*Robin is a shareholder and works in our Philadelphia, Pennsylvania office. She can be reached at 215.575.2705 or rmromano@mdwcg.com.

_{Defense Digest, Vol 21, No. 4, December 2015}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2015 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}