PA LCB v. 3B Pain Management (Bureau of WC Fee Review Hearing Office) ( 2023 )


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  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Pennsylvania Liquor Control Board,                :
    Petitioner                       :
    :
    v.                                 :
    :
    3B Pain Management (Bureau of                     :
    Workers’ Compensation Fee Review                  :
    Hearing Office),                                  :    No. 1024 C.D. 2022
    Respondent                       :    Submitted: October 10, 2023
    BEFORE:        HONORABLE ANNE E. COVEY, Judge
    HONORABLE LORI A. DUMAS, Judge
    HONORABLE MARY HANNAH LEAVITT, Senior Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION BY
    JUDGE COVEY                                                     FILED: December 4, 2023
    The Pennsylvania Liquor Control Board (Employer) petitions this
    Court for review of the Bureau of Workers’ Compensation (Bureau) Medical Fee
    Review Hearing Office’s (Hearing Office) August 26, 2022 decision. Therein, the
    appointed hearing officer (Hearing Officer) determined that 3B Pain Management
    (Provider) is entitled to reimbursement for treatment provided to Amato Berardi
    (Claimant) for fee review applications: MF-617470 (Date of Service (DOS)
    6/3/2021), MF-618287 (DOS 6/9/2021), MF-618673 (DOS 6/24/2021 to
    6/30/2021), MF-619640 (DOS 7/7/2021), MF-620322 (DOS 7/29/2021), MF-
    620634 (DOS 8/19/2021), and MF-624846 (DOS 10/7/2021).1 Employer presents
    1
    See Section 127.261 of the Bureau’s Regulations, which provides: “The hearing officer
    will issue a written decision and order within 90 days following the close of the record. The
    decision will include all relevant findings and conclusions, and state the rationale for the fee review
    adjudication.” 
    34 Pa. Code §127.261
    .
    one issue for this Court’s review: whether the Hearing Officer erred by ruling that
    Employer was liable for payment of Claimant’s medical and chiropractic treatment.
    After review, this Court affirms.
    On June 29, 2019, while employed as a clerk in Employer’s Wine &
    Spirits Store, Claimant fell in the parking lot outside Employer’s store. On August
    1, 2019, Claimant filed a claim petition (Claim Petition) under the Workers’
    Compensation (WC) Act (Act),2 alleging that he sustained an injury in the course
    and scope of his employment. Employer denied Claimant’s material allegations. On
    March 9, 2021, WC Judge (WCJ) Debra Bowers (WCJ Bowers) granted the Claim
    Petition, describing Claimant’s injury as a “meniscal tear of the right knee and
    chondromalacia of the femoral and tibial condyle of the right knee.” Reproduced
    Record at 14a. On December 16, 2021, the WC Appeal Board (Board) affirmed
    WCJ Bowers’ decision.3
    Provider’s     employee,     Gina    Giacoponello,      D.C.,    administered
    chiropractic treatment to Claimant on at least eight occasions from June 3, 2021
    through October 7, 2021. This treatment consisted of spinal manipulation relating
    to low back pain, manipulation of Claimant’s knees and his right hip for pain, low
    level laser treatment on his right knee, and therapeutic massage for unidentified
    muscle spasms. Provider billed Employer’s third-party administrator Inservco
    Insurance Services, Inc. (Inservco) for this treatment as it related to Claimant’s work
    injury. Provider submitted seven invoices to Inservco totaling $3,185.00. Inservco
    denied payment for a large part of these invoices on the basis that the procedure
    codes were not valid reimbursable codes and/or were invalid for reimbursement
    under the Act.
    2
    Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
    3
    The Board remanded the matter to WCJ Bowers to make specific findings regarding the
    terms and intent of a fee agreement between Claimant and his counsel, but affirmed WCJ Bowers’
    decision in all other respects. Board Order, 12/16/2021.
    2
    Provider filed a fee review application for each invoice, and the
    Bureau’s Medical Fee Review Section (Fee Review Section) determined that the
    amount owed for each invoice was $0.                  Provider contested the fee review
    determinations, and the Hearing Office assigned the Hearing Officer to conduct
    hearings.    At the hearings, Inservco argued that Provider’s invoices were for
    treatments to Claimant’s right knee, left knee, left hip, and back, which were not
    related to Claimant’s accepted work injury. In support of its argument, Inservco
    presented WCJ Bowers’ and the Board’s decisions. Provider asserted that, because
    Inservco’s denials were based on a lack of causal relationship between the treatment
    and the work injury, Inservco was required to seek utilization review (UR). Provider
    contended that, because Inservco did not do so, the invoices were payable.
    On August 26, 2022, the Hearing Officer determined that Provider was
    entitled to reimbursement for all of the treatment it provided to Claimant because
    Employer/Inservco had neither sought UR of Provider’s treatment, nor filed a review
    petition related to said treatment. The Hearing Officer ruled that Provider submitted
    the proper billing to Inservco and that a denial based upon causal relatedness was
    not appropriate. On September 26, 2022, Employer appealed to this Court.4, 5
    Employer contends that the Hearing Officer erred by ruling that
    Employer was liable for the payment of medical and chiropractic treatment for
    4
    Employer thereafter sought supersedeas before the Hearing Officer, but the Hearing
    Officer indicated that his office does not respond to supersedeas requests. Accordingly, Employer
    filed a Petition for Supersedeas in this Court. By March 23, 2023 Order, this Court denied
    Employer’s Petition for Supersedeas.
    5
    Our review in medical fee review cases determines whether
    constitutional rights were violated, whether an error of law was
    committed, or whether the necessary findings of fact were supported
    by substantial evidence. Regarding questions of law, our scope of
    review is plenary and our standard of review is de novo.
    Workers’ First Pharmacy Servs., LLC v. Bureau of Workers’ Comp. Fee Rev. Hearing Off.
    (Gallagher Bassett Servs.), 
    225 A.3d 613
    , 616 n.3 (Pa. Cmwlth. 2020) (citation omitted).
    3
    Claimant’s left knee, left and/or right hip, and low back. Specifically, Employer
    argues that the burden of proving that the treatment at issue is causally connected to
    the work injury falls upon the employee, and although the Act requires that payments
    for treatment be paid within 30 days of receipt, this payment requirement is only
    triggered if the bills are connected with the work-related injury. Employer cites
    Section 127.255 of the Bureau’s Regulations, 
    34 Pa. Code § 127.255
    , to support its
    position.6
    Initially, Section 306(f.1)(5)-(6)(i) of the Act provides, in relevant part:
    (5) The employer or insurer shall make payment and
    providers shall submit bills and records in accordance with
    the provisions of this section. All payments to providers
    for treatment provided pursuant to this [A]ct shall be
    made within thirty (30) days of receipt of such bills and
    records unless the employer or insurer disputes the
    reasonableness or necessity of the treatment provided
    pursuant to paragraph (6). . . .
    (6) Except in those cases in which a [WCJ] asks for an
    opinion from peer review under [S]ection 420[(a) and (b)
    of the Act, 77 P.S. §§ 831-832], disputes as to
    reasonableness or necessity of treatment by a health care
    provider shall be resolved in accordance with the
    following provisions:
    6
    Section 127.255 of the Bureau’s Regulations states:
    The Bureau will return applications for fee review prematurely filed
    by providers when one of the following exists:
    (1) The insurer denies liability for the alleged work injury.
    (2) The insurer has filed a request for [UR] of the treatment
    under Subchapter C (relating to medical treatment review).
    (3) The 30-day period allowed for payment has not yet
    elapsed, as computed under [Section] 127.208 [of the
    Bureau’s Regulations, 
    34 Pa. Code § 127.208
    ,] (relating to
    time for payment of medical bills).
    
    34 Pa. Code § 127.255
    .
    4
    (i) The reasonableness or necessity of all
    treatment provided by a health care provider
    under this [A]ct may be subject to prospective,
    concurrent or retrospective [UR] at the request
    of an employe, employer or insurer. . . .
    77 P.S. § 531(5)-(6)(i) (emphasis added).
    The Pennsylvania Supreme Court has explained:
    [T]he Act mandates that employers or insurers pay
    providers within 30 days of the receipt of bills; however,
    that obligation is, at least temporarily, eliminated if
    employers or insurers dispute the reasonableness or
    necessity of the treatment at issue. [See 77 P.S. § 531(5)]
    (“All payments to providers for treatment provided
    pursuant to this [A]ct shall be made within thirty (30) days
    of receipt of such bills and records unless the employer or
    insurer disputes the reasonableness or necessity of the
    treatment provided pursuant to paragraph (6)[, which
    addresses UR].”). In other words, if an employer or
    insurer triggers the UR mechanism for challenging the
    reasonableness or necessity of treatment, then the
    employer or insurer is not obligated to pay for the
    treatment unless the UR results in a determination that
    the treatment at issue was reasonable and necessary.
    Keystone Rx LLC v. Bureau of Workers’ Comp. Fee Rev. Hearing Off., 
    265 A.3d 322
    , 332 (Pa. 2021) (emphasis added); see also UPMC Benefit Mgmt. Servs. v.
    United Pharmacy Servs. (Bureau of Workers’ Comp. Fee Rev. Hearing Off.), 
    287 A.3d 474
    , 480 (Pa. Cmwlth. 2022) (quoting CVA, Inc. v. Workers’ Comp. Appeal
    Bd. (Riley), 
    29 A.3d 1224
    , 1227 (Pa. Cmwlth. 2011) (footnote omitted)) (“[T]he
    employer must pay the claimant’s medical bills within 30 days of receiving them,
    unless the employer disputes the reasonableness and necessity of the treatment. If
    the employer believes that the treatment is not reasonable and necessary, it must
    submit the bills for a [UR] or face the possibility of a penalty.”).
    “Pursuant to Section 306(f.1)(5) of the Act, the permitted focus of the
    fee review process is the amount and/or timeliness of the payment from the
    5
    employer or insurer.” Phila. Surgery Ctr. v. Excalibur Ins. Mgmt. Servs., LLC
    (Bureau of Workers’ Comp. Fee Rev. Hearing Off.), 
    289 A.3d 157
    , 161 (Pa. Cmwlth.
    2023) (bold and underline emphasis added); see also Armour Pharmacy v. Bureau
    of Workers’ Comp. Fee Rev. Hearing Off. (Wegman’s Food Mkts., Inc.), 
    206 A.3d 660
    , 670 (Pa. Cmwlth. 2019) (“[T]he [] Fee Review Section[’s] . . . responsibility is
    solely administrative. Its inquiry is limited to the timeliness of the employer’s
    payment (or denial) and the correct amount of reimbursement owed to the provider.
    [See Section 127.252 of the Bureau’s Regulations,] 
    34 Pa. Code § 127.252
    .”).
    “Clearly, the fee review process presupposes that liability has been
    established, either by voluntary acceptance by the employer or a determination
    by a [WCJ].” Cath. Health Initiatives v. Heath Fam. Chiropractic, 
    720 A.2d 509
    ,
    511 (Pa. Cmwlth. 1998) (emphasis added). Here, WCJ Bowers ruled that Employer
    was liable for Claimant’s work injury. This Court has explained:
    [O]nce liability for a work injury has been established, the
    employer may file a modification petition to change the
    scope of the accepted injury or it can seek [UR], which
    stays the 30-day deadline to pay a provider’s invoice. A
    claimant “may be under treatment for an array of medical
    problems, only some of which relate to the work injury. It
    is for the [UR] [o]rganization to sort this out.”
    [Workers’ First Pharmacy Servs., LLC v. Bureau of
    Workers’ Comp. Fee Rev., Hearing Off. (Gallagher
    Bassett Servs.), 
    225 A.3d 613
    ,] 620-21 [(Pa. Cmwlth.
    2020)]. Stated otherwise, if the [treatment] was prescribed
    for a medical problem that is not work-related, “a fortiori
    it is not reasonable or necessary for treatment of [the]
    accepted work injury.” 
    Id. at 621
    .
    Omni Pharmacy Servs., LLC v. Bureau of Workers’ Comp. Fee Rev. Hearing Off.
    (Am. Interstate Ins. Co.), 
    241 A.3d 1273
    , 1278 (Pa. Cmwlth. 2020) (emphasis
    added).
    6
    In State Workers’ Insurance Fund v. Harburg Medical Sales Co.
    (Bureau of Workers’ Compensation Fee Review Hearing Office), 
    287 A.3d 981
     (Pa.
    Cmwlth. 2022) (Harburg), this Court affirmed the Hearing Office’s decision
    reversing a Fee Review Section determination that concluded the State Workers’
    Insurance Fund (Fund) was not liable to provide reimbursement to a medical supply
    company for a claimant’s mattress overlay. Therein, the claimant suffered a work-
    related injury for which the employer issued a notice of compensation payable
    accepting various injuries. Although the Fund reimbursed the supplier for various
    supplies and equipment, it denied reimbursement for the mattress overlay on the
    basis that medical documentation was required showing the mattress overlay’s
    relationship to the accepted work injury. The supplier submitted a fee review
    application to the Fee Review Section, which thereafter determined that the Fund
    was not required to pay for the mattress overlay because it was not properly billed.
    The supplier requested a hearing, following which the supplier argued that the Fund
    should have sought UR before withholding payment based on causal relatedness.
    The Hearing Officer reversed the Fee Review Section’s decision and ordered the
    Fund to pay the supplier for the mattress overlay.
    The Harburg Court held:
    [The Fund] was obligated to seek [UR] to dispute liability
    for [the c]laimant’s treatment in order to render [the
    supplier’s] fee review application premature, because [the
    Fund’s] “defense” that the prescribed mattress overlay was
    not related to [the c]laimant’s work injury was “just
    another way of stating that [it] was not a reasonable or
    necessary ‘procedure’ for treating [the c]laimant’s
    ‘diagnosis[.]’” Workers’ First, 225 A.3d at 620-21; see
    also Omni, 241 A.3d at 1275[,] 1278.
    Harburg, 287 A.3d at 994.
    7
    Here, Employer’s claim “that the [disputed treatment] was not related
    to Claimant’s work injury ‘was just another way of stating that [it] was not a
    reasonable or necessary ‘procedure’ for treating Claimant’s ‘diagnosis[.]’” Id.
    Employer “was obligated to seek [UR] to dispute liability for Claimant’s treatment”
    and it did not do so. Id. Accordingly, the Hearing Officer properly determined that
    Provider was entitled to reimbursement for all of the treatment it provided to
    Claimant.
    For all of the above reasons, this Court affirms the Hearing Office’s
    decision.
    _________________________________
    ANNE E. COVEY, Judge
    8
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    Pennsylvania Liquor Control Board,     :
    Petitioner            :
    :
    v.                         :
    :
    3B Pain Management (Bureau of          :
    Workers’ Compensation Fee Review       :
    Hearing Office),                       :   No. 1024 C.D. 2022
    Respondent            :
    ORDER
    AND NOW, this 4th day of December, 2023, the Bureau of Workers’
    Compensation Fee Review Hearing Office’s August 26, 2022 decision is affirmed.
    _________________________________
    ANNE E. COVEY, Judge
    

Document Info

Docket Number: 1024 C.D. 2022

Judges: Covey, J.

Filed Date: 12/4/2023

Precedential Status: Non-Precedential

Modified Date: 12/13/2024