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

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