IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Selective Insurance Company of SC, : Petitioner : : v. : No C.D : Submitted: January 10, 2014 Bureau of Workers Compensation : Fee Review Hearing Office : (The Physical Therapy Institute), : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEAVITT FILED: February 27, 2014 Selective Insurance Company of SC (Insurer) petitions for review of an adjudication of the Bureau of Workers Compensation Fee Review Hearing Office (Bureau) dismissing its request for a hearing to contest fee review determinations made by the Bureau s Medical Fee Review Section. The pivotal issue raised by Insurer was whether it had to pay invoices issued by a billing entity that was not the medical provider. The Bureau held that this issue lies beyond the scope of a fee review proceeding, and we agree with this conclusion. However, we modify the Bureau s adjudication to vacate the fee review determinations that Insurer sought to challenge. On August 23, 2011, Denise Moore (Claimant) injured her right ankle while performing duties as a volunteer firefighter for Derry Township, and she received physical therapy to treat this work injury. Insurer denied The Physical

2 Therapy Institute s invoices for this treatment for the stated reason that it did not actually provide the physical therapy to Claimant, explaining as follows: The Physical Therapy Institute is not the actual healthcare provider who rendered the PT services represented on this bill, and therefore, they are not entitled to payment under the [Workers Compensation] Act. Reproduced Record at 21a, 40a (R.R. ). The Physical Therapy Institute filed two separate fee review applications, requesting review of the amount of payment and timeliness of payment. R.R. 5a, 16a. The first application covered treatment from September 22, 2011, to October 21, The Bureau s Medical Fee Review Section determined that Insurer owed $6, for that treatment and directed Insurer to pay The Physical Therapy Institute that amount plus ten percent interest. The second fee review application covered treatment from November 14, 2011, to November 29, The Bureau s Medical Fee Review Section determined that Insurer owed $2, for that treatment and directed Insurer to pay The Physical Therapy Institute that amount plus ten percent interest. Insurer then filed a Request for Hearing to Contest Fee Review Determination, seeking a de novo hearing on both administrative determinations. R.R. 94a-97a. At the hearing, the parties identified the issue as whether The Physical Therapy Institute is a medical provider within the meaning of the Workers Compensation Act (Act). 1 was whether the Bureau has jurisdiction to decide that issue. The parties agreed that the threshold question 1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S ,

3 The Hearing Officer concluded that the Bureau lacks jurisdiction to decide whether The Physical Therapy Institute is a medical provider. Rather, the Bureau s jurisdiction is limited to disputes over the amount or timeliness of an insurer s payment of medical bills. Because the issue presented went beyond those limits, the Bureau dismissed Insurer s petitions for lack of jurisdiction. The Bureau noted that Insurer s theory of the case seemed to be that The Physical Therapy Institute violated the fraud provisions found in Section 1102 of the Act, 2 77 P.S , which is a matter for a workers compensation judge to decide. Insurer then petitioned for this Court s review and requested supersedeas, which was granted by this Court. On appeal, 3 Insurer presents two issues for our consideration. First, Insurer argues that the Bureau erred by concluding that it lacked jurisdiction over the issue raised in Insurer s fee review petitions. Second, alternatively, Insurer asserts that the Bureau erred in dismissing Insurer s request for a hearing when it should have dismissed the applications for fee review submitted by The Physical Therapy Institute. This Court addressed these very issues in Selective Insurance Company of America v. Bureau of Workers Compensation Fee Review Hearing Office (The Physical Therapy Institute), A.3d (Pa. Cmwlth., No. 613 C.D. 2013, filed February 4, 2014). There, we held that the Bureau lacks jurisdiction to 2 Section 1102 was added by the Act of July 2, 1993, P.L. 190, No This Court s review of a decision by a Bureau fee review hearing officer is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated, and whether the hearing officer committed an error of law. 2 Pa. C.S. 704; Walsh v. Bureau of Workers Compensation Fee Review Hearing Office (Traveler s Insurance Co.), 67 A.3d 117, 120 n.5 (Pa. Cmwlth. 2013). 3

4 determine whether an entity is a provider of medical services, or simply a billing agency. This is a question of liability or, possibly, insurance fraud, both of which are beyond the scope of a fee review. We also held that the Bureau s Medical Fee Review Section lacked jurisdiction to consider The Physical Therapy Institute s fee review petitions in the first instance. These holdings are dispositive in this case. The Physical Therapy Institute argues that this Court should leave the initial decisions of the Medical Fee Review Section intact because it had no option other than to file an application for fee review when Insurer refused to pay the submitted physical therapy bills. The Physical Therapy Institute notes that medical providers are not permitted to file petitions under the Act. 4 Insurer did not pay the invoices of The Physical Therapy Institute because Insurer concluded that it was not a provider. The Physical Therapy Institute challenged that conclusion and not the amount of its rejected invoices nor the due date for their payment. Therefore, the Bureau lacked jurisdiction over The Physical Therapy Institute s fee petitions. That the Act does not provide a direct remedy to The Physical Therapy Institute does not mean that courts can bestow jurisdiction where none exists. 5 4 See, e.g., E.S. MacFadden, Inc. v. Bureau of Workers Compensation, 725 A.2d 1273, 1276 (Pa. Cmwlth. 1999) ( [A] provider cannot litigate liability before a workers compensation judge on a claimant s behalf. ); Topps Chewing Gum v. Workers Compensation Appeal Board (Wickizer), 710 A.2d 1256, 1260 (Pa. Cmwlth. 1998) (a provider is a non-party participant in workers compensation utilization review proceedings, not a party. ) 5 Claimants routinely file both review petitions and penalty petitions concerning non-payment of medical bills when their medical providers are not being paid. We also note that The Physical Therapy Institute has not been blocked from litigating the issue of whether it is the provider. In Selective Insurance Company of America v. Bureau of Workers Compensation Fee Review Hearing Office (The Physical Therapy Institute), A.3d (Pa. Cmwlth., No. 613 C.D. 2013, filed February 4, 2014), the parties agreed that penalty petitions presenting the identical issue were pending before a workers compensation judge. In the instant case, Insurer s counsel (Footnote continued on the next page...) 4

5 Accordingly, the order of the Bureau is affirmed as modified to also vacate the Bureau s Medical Fee Review Section s fee review determinations because the issue presented was non-cognizable by the fee review authorities. MARY HANNAH LEAVITT, Judge (continued....) explained at hearing that Insurer had filed petitions to review medical treatment and/or billing that had not yet been assigned to a workers compensation judge. Supplemental Reproduced Record at 128b-129b. The Physical Therapy Institute asserts that where and how a dispute as to provider identity should be resolved is unclear. However, in the current litigation, The Physical Therapy Institute did not voice an objection to the matter being decided by a workers compensation judge. 5

6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Selective Insurance Company of SC, : Petitioner : : v. : No C.D : Bureau of Workers Compensation : Fee Review Hearing Office : (The Physical Therapy Institute), : Respondent : ORDER AND NOW, this 27 th day of February, 2014, the order of the Fee Review Hearing Officer of the Bureau of Workers Compensation Fee Review Hearing Office dated August 9, 2013, in the above captioned matter is hereby MODIFIED to vacate the fee review determinations by the Bureau of Workers Compensation Medical Fee Review Section for lack of jurisdiction and AFFIRMED in all other respects. MARY HANNAH LEAVITT, Judge

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