Opinion
No. 333 C.D. 2013
04-03-2014
Scott Jaeger, Petitioner v. Bureau of Workers' Compensation, Fee Review Hearing Office (Ace American Insurance), Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER
Scott Jaeger, M.D. petitions for review of an order of the hearing officer, Sandra R. Craig, of the Bureau of Workers' Compensation, Fee Review Hearing Office (Bureau), dismissing his applications for fee review as untimely under Section 306(f.1)(5) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531(5), and 34 Pa. Code § 127.252(a). Because the hearing officer based the dismissal on an erroneous interpretation of those provisions, we reverse and remand for a further proceeding.
Michael Gilyard (Claimant) sustained a work-related injury in June 2005, while employed by Echostar Communication Group (Employer). On June 13, 2007, Dr. Jaeger submitted to Employer's insurer, Ace American Insurance c/o ESIS Northeast WC Claims, its third-party administrator (insurer), a bill in the amount of $15,423 for treatment of Claimant's work injury from April 17 to 26, 2007. On November 15, 2007, the insurer issued an Explanation of Review and paid Dr. Jaeger only $1013.86. Dr. Jaeger filed an application for fee review on Sunday, December 16, 2007, challenging the amount of payment (application #170917). Hearing Officer's Finding of Fact No. 2.c.
On June 25, 2007, Dr. Jaeger submitted another bill in the amount of $15,423 to the insurer for treatment of Claimant's work injury from May 10 to 24, 2007. On November 20, 2007, the insurer issued an Explanation of Review and paid Dr. Jaeger only $1063.98. Dr. Jaeger filed an application for fee review on December 19, 2007, challenging the amount of payment (application #171016). Hearing Officer's Finding of Fact No. 1.c.
The Bureau denied Dr. Jaeger's fee review applications as untimely under Section 306(f.1)(5) of the Act, which provides in relevant part:
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 act 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 .... The nonpayment to providers within thirty (30) days for treatment for which a bill and records have been submitted shall only apply to that particular treatment or portion thereof in dispute; payment must be made timely for any treatment or portion thereof not in dispute. A provider who has submitted the reports and bills required by this section and who disputes the amount or timeliness of the payment from the employer or insurer shall file an application for fee review with the department no more than thirty (30) days following notification of a disputed treatment or ninety (90) days following the original billing date of treatment. [Emphasis added.]In addition, 34 Pa. Code § 127.252(a) provides that "[t]he application [for fee review] shall be filed no more than 30 days following notification of a disputed treatment or 90 days following the original billing date of the treatment which is the subject of the fee dispute, whichever is later." (Emphasis added.)
After the Bureau's denial of his applications, Dr. Jaeger requested a de novo hearing. Hearing Officer Craig, assigned by the Bureau, held hearings and dismissed Dr. Jaeger's fee review applications. She concluded that Dr. Jaeger's applications were untimely because they were not filed within 90 days of the June 13 and 25, 2007 original billing dates, although they were filed within 30 days of the insurer's November 15 and 20, 2007 Explanations of Review. She stated:
The December 16 application was timely filed because the 30th day following November 15 fell on a Saturday. See Section 1908 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1908 (providing that the last day of any time period in a statute falling on Saturday or Sunday or on any legal holiday must be omitted in computing the time period).
While I recognize that Section 127.252(a) [34 Pa. Code § 127.252(a)] states that a provider has 30 days from notification of a disputed treatment or 90 days from the original billing date "whichever is later[,]" there must be a set point in time for "whichever is later[.]" The fact that [Dr. Jaeger] received a notice of dispute after the expiration of the 90 days from the original billing date cannot extend its window for filing an application for fee review past the date by which it should have filed if it received no response from the insurer: under such reasoning, there would never be a limit on when an application could be filed.Hearing Officer's Decision at 3 and 4 (emphasis in original). Dr. Jaeger's appeal to this Court followed.
... If a provider can always file an application for fee review 30 days after receipt of a notice of dispute, there would be no finality to this process. A provider, having not filed a fee application despite having no response from the insurer in the 90 days after submission of a bill, could receive a notice of dispute twenty years later and file a fee review application within 30 days. This makes no sense and would result in an absurd interpretation of the Act and regulations.
Dr. Jaeger argues that the hearing officer erroneously concluded that the fee review applications were untimely under Section 306(f.1)(5) of the Act and 34 Pa. Code § 127.252(a) when they were filed within 30 days of the insurer's notifications of disputed treatment.
In a de novo fee dispute proceeding, the provider must establish the timeliness of the fee review application. Liberty Mut. Ins. Co. v. Bureau of Workers' Comp., Fee Review Hearing Office (Kepko), 37 A.3d 1264, 1269 n.11 (Pa. Cmwlth), appeal denied, ___ Pa. ___, 53 A.3d 51 (2012). Once the provider meets its burden, the insurer must prove by a preponderance of the evidence that it properly reimbursed the provider. Id.; 34 Pa. Code § 127.259(f).
The object of statutory construction is to ascertain and effectuate the legislative intent. Section 1921(a) of the Statutory Construction of 1972, 1 Pa. C.S. § 1921(a); W. Penn Allegheny Health Sys. v. Med. Care Availability & Reduction of Error Fund (MCARE), 11 A.3d 598, 604 (Pa. Cmwlth. 2010), aff'd, 611 Pa. 200, 23 A.3d 1052 (2011). The best indication of legislative intent is the plain language of the statute. W. Penn Allegheny Health Sys., at 605. It is also fundamental that words and phrases in a statute must be construed according to rules of grammar and their common and approved usage. 1 Pa. C.S. § 1903; Walker v. Eleby, 577 Pa. 104, 123, 842 A.2d 389, 400 (2004). When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa. C.S. § 1921(b); Mount Vernon Cemetery Co. v. Pa. Dep't of State, Bureau of Prof'l & Occupational Affairs, 55 A.3d 1274, 1276 (Pa. Cmwlth. 2012).
Section 306(f.1)(5) of the Act requires a provider to file a fee review application "no more than thirty (30) days following notification of a disputed treatment or ninety days following the original billing date of treatment." [Emphasis added.] According to the hearing officer, Section 306(f.1)(5) requires a provider to file a fee review application within 90 days of the billing date even where, as here, the insurer has not issued a dispute notification within that period. Her interpretation ignores the rules of grammar and the common and approved usage of the word "or" in Section 306(f.1)(5) of the Act. The word "or" is a disjunctive conjunction "used to connect words, phrases, or clauses representing alternatives." In re Nomination of Paulmier, 594 Pa. 433, 448, 937 A.2d 364, 373 (2007). It means "one or the other of two or more alternatives." Id.
Under the plain language of the Act, a provider has two distinctive alternative time periods for filing a fee review application: (1) within 30 days following notification of a disputed treatment, or (2) within 90 days following the original billing date. Fid. & Guar. Ins. Co. v. Bureau of Workers' Comp. (Cmty. Med. Ctr.), 13 A.3d 534, 539 (Pa. Cmwlth. 2010). Moreover, Section 306(7) of the Act, added by Section 8 of the Act of July 2, 1993, 77 P.S. § 531.1(7), grants the Department of Labor and Industry "the power and authority to promulgate, adopt, publish and use regulations for the implementation of this section." Pursuant to such power and authority, the Department promulgated 34 Pa. Code § 127.252(a), clarifying the alternative time periods for seeking a fee review in Section 306(f.1)(5) of the Act. It requires a provider to seek fee review within 30 days of a notification of disputed treatment or within 90 days of the original billing date, "whichever is later."
This Court has upheld the validity of 34 Pa. Code § 127.252(a) in 2010 in Fidelity & Guaranty Insurance, well before the hearing officer's March 2013 decision. In Fidelity & Guaranty Insurance, this Court rejected the insurer's argument that the fee review application filed 85 days after the original billing date but more than 30 days after the insurer's dispute notification was untimely under Section 306(f.1)(5) of the Act. In so holding, we relied not only on the plain language of the statute and the regulation, but also on Harburg Medical Sales Co. v. Bureau of Workers' Compensation (PMA Insurance Co.), 784 A.2d 866, 870 (Pa. Cmwlth. 2001), which held that the provider's fee review application filed within 30 days after the insurer's notification of its refusal to pay the resubmitted bill was timely, although it was filed more than 90 days of the original billing date; the Court stated that any other interpretation of Section 306(f.1)(5) "would leave the provider without any recourse to seek payment for a disputed treatment for a disputed treatment"). See also Roman Catholic Diocese of Allentown v. Bureau of Workers' Comp., Fee Review Hearing Office (Lehigh Valley Health Network), 33 A.3d 691, 697 (Pa. Cmwlth. 2011). These authorities are directly controlling here. It is axiomatic that "a decision of an appellate court remains binding precedent, even if it has been appealed, unless and until it is overturned by the Pennsylvania Supreme Court." Germantown Cab Co. v. Phila. Parking Auth., 27 A.3d 280, 283 (Pa. Cmwlth. 2011).
In this case, the insurer issued an Explanation of Review and paid Dr. Jaeger portions of the submitted fee amounts on November 15 and November 20. The insurer's Explanation of Review serves as a notification of disputed treatment. Roman Catholic Diocese of Allentown, 33 A.3d at 697. Hence, Dr. Jaeger's fee review applications filed within 30 days of the insurer's Explanations of Review were timely under Section 306(f.1)(5) of the Act and 34 Pa. Code § 127.252(a). The hearing officer erred in disregarding this Court's previous decisions interpreting those provisions to conclude otherwise.
We note that in Jaeger v. Bureau of Workers' Compensation Fee Review Hearing Office (American Casualty) (Pa. Cmwlth. No. 1570 C.D. 2012, filed August 26, 2013) (Jaeger I), an unpublished memorandum opinion, Dr. Jaeger submitted a medical bill on July 14, 2010. The insurer mailed an Explanation of Review to Dr. Jaeger on July 30, and it was not returned as undeliverable. Dr. Jaeger's billing manager contacted the insurer on October 21 and claimed that he did not receive it. On October 21, the insurer then faxed him a second copy of the Explanation of Review. On October 22, Dr. Jaeger filed a fee review application. Hearing Officer Craig concluded that Dr. Jaeger's fee review application was untimely "because it was filed beyond the statutorily prescribed deadline of 90 days from the original billing date of treatment." Slip op. at 3. She reasoned that the 90-day deadline was placed in the Act "to establish an application deadline for the provider who has not received a decision on an invoice." Id. On appeal, Dr. Jaeger argued that the application was timely because it was filed one day after he received the subsequent faxed copy of the Explanation of Review. This Court accepted Hearing Officer Craig's position and concluded that "[a]llowing the provider to file for fee review 30 days after a subsequent notification of disputed treatment would extend the deadline for an application for fee review indefinitely." Slip op. at 6 (emphasis added).
We find this case to be distinguishable. Unlike here, in the previous case, Dr. Jaeger did not meet either of the alternative deadlines. Instead, he filed his fee review application the day after a second copy of the Explanation of Review was faxed to his billing manager, more than 80 days after the original Explanation of Review was sent and more than 90 days after the original billing date.
Accordingly, we reverse the hearing officer's dismissal of Dr. Jaeger's fee review applications and remand for consideration of the merits of the applications.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge ORDER
AND NOW, this 3rd day of April, 2014, the order of the hearing officer of the Bureau of Workers' Compensation, Fee Review Hearing Office in the above-captioned matter is REVERSED. The matter is remanded for a further proceeding consistent with the foregoing opinion.
Jurisdiction relinquished.
/s/_________
BONNIE BRIGANCE LEADBETTER,
Judge