Opinion
No. 1298 C.D. 2013
03-06-2014
Donna McIver, Petitioner v. Workers' Compensation Appeal Board (Edens Corporation and State Workers' Insurance Fund), Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Donna McIver (Claimant) petitions for review of the July 3, 2013 order of the Workers' Compensation Appeal Board (Board), which affirmed the decision of a workers' compensation judge (WCJ) denying her penalty petition. We affirm.
On October 2, 2007, Claimant filed two claim petitions and four penalty petitions against Edens Corporation (Employer). Claimant alleged that she sustained injuries to her lower back on March 13, 2007, and August 27, 2007, while working for Employer as a paratransit driver, transporting disabled clients to various locations. After her initial injury, Claimant worked a light-duty position for Employer, during interim periods and at reduced wages, until March 1, 2008, when she ceased working altogether.
On May 15, 2009, the WCJ granted Claimant's claim petitions. The WCJ also granted Claimant's penalty petitions, concluding that Employer violated the Workers' Compensation Act by failing to accept or reject Claimant's work injuries and failing to pay medical expenses for treatment of the work injuries. The WCJ awarded Claimant compensation benefits for partial and total disability, medical expenses, and $6,457.50 in attorney's fees for Employer's unreasonable contest. Although the WCJ granted Claimant a quantified amount of indemnity benefits, she did not award Claimant any specific amount for medical expenses. Instead, the WCJ concluded that "Employer is responsible for all reasonable and necessary medical expenses for treatment of Claimant's work injuries of March 13 and August 27, 2007." (WCJ's Conclusion of Law No. 6.) In addition, the WCJ found that Employer engaged in unreasonable and excessive delay and ordered Employer "to pay to Claimant penalties in the amount of [fifty] percent of all past compensation due, including medical expenses." (WCJ's Order) (emphasis added). The WCJ's decision was not appealed.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
The WCJ granted Claimant partial disability benefits from March 14, 2007, to April 9, 2007, and from August 28, 2007, to March 1, 2008, representing the time period that Claimant worked at reduced wages. The WCJ granted Claimant total disability benefits from March 1, 2008, and continuing into the future. (WCJ's Conclusion of Law No. 2.)
On January 12, 2010, Claimant filed a penalty petition, alleging that Employer failed to comply with the payment terms of the WCJ's May 15, 2009 decision. Employer filed an answer denying this averment.
The case was assigned to the same WCJ that authored the May 15, 2009 decision. The WCJ convened a hearing and received evidence. The WCJ then made the following pertinent findings of fact:
3. At the first hearing on this petition on February 9, 2010, counsel for Claimant outlined that the issue was Employer's failure to pay penalties on the past due medical expenses incurred from March 13, 2007, to May 15, 2009.
4. In support of this petition, Claimant submitted the printout of payments made by Employer's carrier as to the wage loss benefits with interest, penalties and . . . counsel fees paid on June 9, 2009, consistent with the decision of May 15, 2009.
5. In further support of this petition, Claimant submitted a packet of medical bills incurred by Claimant from March 13, 2007, through May 15, 2009, with providers University Dynamic MRI, East Coast TMR, Suburban Pain Control, Summit Pharmacy, Germantown Pain Management, Frankford Pain Management, Mark Allen Orthopedic Clinic and Brandywine Valley Neurosurgery. According to the coversheet on this packet, the total gross bills were $250,603.75 of which amount Employer had denied or "ignored" $99,247.32. This packet contained only the billing from these providers submitted on HCFA 1500 forms to Employer's carrier on various dates. This packet also included documentation from some of the providers showing payments having been received from Employer towards these bills starting in 2008. Some of the treatment was specifically directed to Claimant's neck, a condition not found to be part of the work injury in the decision of May 15, 2009.
6. Claimant also submitted a deposition of Michelle Coles taken May 18, 2010. She works for Employer's carrier as a medical clerk and reviews and makes the payments on the bills on Claimant's claim. She identified documents showing medical bills received on Claimant's claim. These documents set forth the identity of the provider, the dates of service of the treatment, the date the bills were paid, and the
amount paid. These documents showed some bills were paid starting in 2007 and that a large number of bills were paid on June 11, 2009. The ledger showed that bills totaling $362,041.96 had been paid with the total payment after re-pricing being $214,290.51.(WCJ's Findings of Fact Nos. 3-10) (emphasis added).
7. Claimant resubmitted the payment document attached to Ms. Cole's deposition separately with redactions of some of the bills incurred after May 15, 2009, and items incurred as part of litigation such as payment of the IME [independent medical examination] doctor's deposition fee. However, a number of bills for dates of service after May 15, 2009, were not crossed out on this document.
8. Employer did not submit any evidence on this petition.
9. In order to be successful in this petition, Claimant needed to establish that the bills in question were properly submitted on HCFA 1500 forms with appropriate documentation of either an LIBC-9 form or monthly reports. Only with documentation to establish that any medical bills were submitted consistent with the requirements of the Act would Employer's responsibility to pay those bills be triggered. Although the evidence submitted by Claimant shows that various providers sent bills to the carrier on the requisite forms, there is no documentation to support that these bills were accompanied by LIBC-9 forms or monthly reports.
10. The fact that a number of bills were paid even prior to the decision of May 15, 2009, and many were paid as of June 11, 2009, within thirty days of that decision suggests that Employer's carrier was satisfied with whatever documentation had been submitted as to those bills. However, that does not mean that those bills were, in fact, submitted properly as of May 15, 2009. The burden is on Claimant to establish that these bills had been properly submitted prior to May 15, 2009, and not paid as of that date so that they were, in fact, past due as of that date. The [WCJ] finds Claimant has not met this burden with the evidence submitted.
Based upon these findings, the WCJ concluded as a matter of law that:
Claimant has failed to meet her burden of establishing that there were properly submitted past due medical bills in Employer's carrier's possession as of May 15, 2009, which would trigger the requirement contained in this [WCJ's] decision of May 15, 2009 that Employer pay penalties on any past due medical expenses in the amount of [fifty] percent of those bills . . . .(WCJ's Conclusion of Law No. 2.)
Claimant appealed to the Board, contending that the WCJ erred in requiring her to prove that she submitted medical bills to Employer on the requisite forms when Employer nonetheless paid the bills. The Board disagreed, relying on AT&T v. Workers' Compensation Appeal Board (DiNapoli), 728 A.2d 381, 383-84 (Pa. Cmwlth. 1999), for the proposition that "an employer is only responsible to pay reasonable and necessary medical bills submitted in the prescribed manner, and compliance with the Act and regulations is a prerequisite for that payment obligation." (Board's decision at 2.) The Board also noted correctly that:
According to 34 Pa. Code §§127.201 and 127.202, requests for payment of medical bills must be made on specific HCFA forms or any successor forms and until the provider submits bills on the specified forms, insurers are not required to pay for the treatment billed. Section 300(f.1)(5), 77 P.S. §531(5), indicates that insurers shall make payment and providers shall submit bills in accordance with provisions of the section, and generally, payments to providers are to be made by insurers within [thirty] days of receipt of the bills.(Board's decision at 2 n.1.)
From these principles of law, the Board concluded that the WCJ properly found that "Claimant's evidence did not, in fact, establish that there were properly submitted past due bills in [Employer's] possession so as to trigger that previous penalty award, and concomitantly, a new penalty for a failure to pay a previous award." Id. at 7-8. In so determining, the Board noted that Claimant did not provide "a specific articulation or showing of what was past due, so that [Employer] could be penalized in the most current [p]enalty [p]etition for failing to pay a [fifty percent] penalty on the amount that was past due as of May 15, 2009." Id. at 8.
Claimant now appeals to this Court, renewing her contention that the tribunals below erred as a matter of law in requiring her to establish as part of her burden of proof that the medical bills were submitted to Employer on the requisite forms. For support, Claimant argues that she is not complaining about any unpaid medical expenses, that there is no dispute Employer paid all of her outstanding medical expenses within 30 days after the WCJ's May 15, 2009 decision, and that, therefore, the WCJ had a quantifiable monetary basis to impose the fifty percent penalty. Citing Department of Transportation v. Workers' Compensation Appeal Board (Clippinger), 38 A.3d 1037 (Pa. Cmwlth. 2011), and Westinghouse Electric Corporation v. Workers' Compensation Appeal Board (Weaver), 823 A.2d 209 (Pa. Cmwlth. 2003), Claimant also asserts that it is unnecessary for her to establish that the medical expenses were submitted on the proper forms to prove a violation of the Act because Employer did not appeal the WCJ's May 15, 2009 decision and Employer's carrier did not require compliance before paying the expenses.
Our scope of review is limited to determining whether findings of fact are supported by substantial evidence, whether an error of law has been committed, or whether constitutional rights have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §704.
Initially, we acknowledge that:
Section 435(d)(i) of the Act, added by Section 3 of the Act of February 8, 1972, P.L. 25, 77 P.S. §991(d)(i), provides
that an employer may be penalized ten percent of the amount awarded for its failure to comply with the Act or its supporting regulations and that, in cases of unreasonable or excessive delays, the penalties may be increased up to fifty percent.[]" A claimant who files a penalty petition must first meet her initial burden to prove that a violation of the Act occurred. Thereafter, the burden shifts to the employer to prove that a violation of the Act had not occurred. The decision to impose penalties as well as the amount of penalties is within the discretion of the WCJ. The WCJ's decision regarding penalties will not be disturbed on appeal absent an abuse of discretion.City of Philadelphia v. Workers' Compensation Appeal Board (Andrews), 948 A.2d 221, 228 (Pa. Cmwlth. 2008) (citations omitted).
Section 435(d)(i) states:
(d) The department, the board, or any court which may hear any proceedings brought under this act shall have the power to impose penalties as provided herein for violations of the provisions of this act or such rules and regulations or rules of procedure:
(i) Employers and insurers may be penalized a sum not exceeding ten per centum of the amount awarded and interest accrued and payable: Provided, however, That such penalty may be increased to fifty per centum in cases of unreasonable or excessive delays. Such penalty shall be payable to the same persons to whom the compensation is payable.
Pursuant to the Act, an employer is required to promptly investigate each injury reported or known to the employer and shall promptly commence payment of "compensation." Section 406.1(a) of the Act of February 8, 1972, P.L. 25, 77 P.S. §717.1(a). The term "compensation" in section 406.1(a) of the Act includes the payment of medical expenses. Glinka v. Workmen's Compensation Appeal Board (Sears, Roebuck and Company), 462 A.2d 909, 914 (Pa. Cmwlth. 1983). See generally Berwick Industries v. Workmen's Compensation Appeal Board (Spaid), 537 Pa. 326, 643 A.2d 1066 (1994).
Under section 306(f.1)(1) of the Act, medical benefits are payable "as and when needed." 77 P.S. §531(1). Generally, "[u]nder Section 306(f.1)(5) of the Act, 77 P.S. §531(5), the employer must pay the claimant's medical bills within [thirty] days of receiving them . . . ." CVA, Inc. v. Workers' Compensation Appeal Board (Riley), 29 A.3d 1224, 1228-29 (Pa. Cmwlth. 2011). However,
Any provider who treats an injured employe shall be required to file periodic reports with the employer on a form prescribed by the department [i.e., a LIBC-9 form] which shall include, where pertinent, history, diagnosis, treatment, prognosis and physical findings. The report shall be filed within ten (10) days of commencing treatment and at least once a month thereafter as long as treatment continues. The employer shall not be liable to pay for such treatment until a report has been filed.Section 306(f.1)(2) of the Act, 77 P.S. §531(2) (emphasis added).
Pursuant to the plain language of the statute and accompanying regulations, this Court has held that an employer's obligation to pay for medical bills does not begin to run until the bills are submitted to the employer on the proper medical forms, namely a HCFA Form 1500 or Form 1450, with a monthly medical report, commonly known as a LIBC-9 form. Westinghouse Electric Corporation v. Workers' Compensation Appeal Board (Burger), 838 A.2d 831, 839 (Pa. Cmwlth. 2003); DiNapoli, 728 A.2d at 383-84; Catholic Health Initiatives v. Health Family Chiropractic, 720 A.2d 509, 512 (Pa. Cmwlth. 1998); 34 Pa. Code §127.201(a); 34 Pa. Code §127.201(a). Accordingly, the thirty-day period within which a carrier must pay a claimant's medical bills does not commence unless or until the medical bills are submitted to the employer on the requisite forms. 77 P.S. §531(2), (5); 34 Pa. Code §127.201(a).
In Budd Co. v. Workers' Compensation Appeal Board (Kan), 858 A.2d 170 (Pa. Cmwlth. 2004), the claimant argued that the Board erred in failing to require the employer to pay his chiropractor bill immediately and in failing to impose a penalty on the employer for engaging in an unreasonable contest of the bill. Citing section 306(f.1) of the Act, this Court stated that "an employer is only responsible to pay reasonable and necessary medical bills submitted in the prescribed manner." Budd Co., 858 A.2d at 180. Because the chiropractor's bill was not submitted on the proper forms, and compliance with the regulations is a prerequisite to an employer's obligation to pay medical expenses, this Court concluded that the Board did not did commit legal error.
Here, the WCJ's May 15, 2009 decision awarded Claimant a penalty of fifty percent "of all past compensation due, including medical expenses." (WCJ's Order.) As the WCJ observed, the burden was on Claimant, as the party alleging a violation of the Act, to establish that her medical expenses were "due" and owing as of the date of the May 15, 2009 decision. (WCJ's Findings of Fact Nos. 9-10.) Although Claimant adduced evidence that Employer paid the remaining balance of her outstanding medical bills within thirty days after the May 15, 2009 decision, there is no evidence that the bills were submitted to Employer on or with the required forms. Absent such evidence, the WCJ could not reasonably discern when or even if the thirty-day time period that Employer has for paying the bills began to run. And without knowing if the thirty-day time limitation was triggered, the WCJ did not have a basis upon which to determine whether Claimant's medical bills, regardless of their submission date, were actually "due" and owing on or before May 15, 2009.
Claimant's reliance on Clippinger is misplaced. In that case, the WCJ imposed and the Board upheld a fifty percent penalty for the employer's failure to pay for the cost of the claimant's medical prescriptions. On appeal to this Court, the employer asserted that this was error because the record did not contain any evidence that the claimant properly submitted the bills for the prescriptions on the requisite forms. We rejected the employer's argument. In doing so, this Court explained that the credited evidence showed that the employer previously requested and accepted forms for payment that were not in compliance with the Act, and a cover memo sent to the employer delineated the amount of the claimant's expenses for the prescriptions. Given this record, we concluded: "[The employer] did not require medical reports in all instances for payment of services. Under these circumstances, [the employer] is liable for a penalty for its failure to pay for [the claimant's] prescriptions." 38 A.3d at 1049.
Unlike the situation in Clippinger, in this case Claimant did not submit any evidence demonstrating that the medical bills Employer paid for prior to or after May 15, 2009, were not accompanied with the requisite forms. Without credible evidence showing that Employer accepted bills for payment that were not in compliance with the Act, the rule announced in Clippinger is inapplicable.
Claimant's reliance on Weaver is equally unavailing. In that case, the WCJ found that the claimant had incurred certain medical bills for reasonable and necessary treatment of her work-related injury and ordered the employer to pay for these expenses after they were re-priced in accordance with the medical costs containment regulations. The WCJ's decision was not appealed, and approximately one year and four months later, the claimant filed a penalty petition alleging that the employer failed to pay the medical expenses. In response, the employer contended that it was not required to pay the medical expenses because the bills were not submitted on the proper forms. The WCJ imposed and the Board upheld the imposition of a penalty on the employer because it failed to pay any of the claimant's medical expenses. On appeal, this Court noted that the employer did not challenge the bills through a utilization review and concluded that the employer was obligated to pay the bills even if they were not submitted on the proper forms. The basis for our holding was that the WCJ's order was not appealed and that the order itself required the employer to pay the medical expenses in a timely fashion. 823 A.2d at 214-15.
Our decision in Weaver does not provide Claimant with grounds for relief. By Claimant's own concession, Employer paid all of her outstanding medical bills within thirty days of the WCJ's May 15, 2009 decision. (Claimant's brief at 10, 13.) Therefore, Employer complied with Weaver's command that an employer must timely pay medical expenses following an unappealed order from a WCJ directing the employer to pay for certain and/or ascertainable medical expenses that are reasonable and necessary to treat a claimant's work-related injury. See WCJ's Conclusion of Law No. 6.
Further, in contrast to the scenario in Weaver, in this case Claimant is seeking an additional penalty for Employer's failure to pay a penalty for medical expenses that were "past due" as of the WCJ's May 15, 2009 decision. The major fallacy in Claimant's argument lies in her belief that she was automatically entitled to a penalty payment for the total amount of medical expenses that Employer paid for after the WCJ's decision. As explained above, the WCJ's May 15, 2009 decision states otherwise, and unlike the WCJ's order in Weaver, the WCJ's order in this case did not by itself impose an obligation on Employer to pay an unconditional, sum certain penalty for "past due" medical expenses without the need for additional proof on Claimant's part. Rather, the WCJ's order required Claimant to establish that her medical expenses were "past due" and owing as of the date of the WCJ's May 15, 2009 decision in order to demonstrate that Employer violated the terms of the WCJ's order by failing to pay the resultant penalty. Therefore, Weaver is distinguishable on its facts and that decision is not implicated in this case.
For the above-stated reasons, we conclude that Claimant has failed to establish that the WCJ abused her discretion in denying Claimant's penalty petition. Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 6th day of March, 2014, the July 3, 2013 order of the Workers' Compensation Appeal Board is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Id.