Opinion
No. 1570 C.D. 2012
08-26-2013
Dr. Scott Jaeger, Petitioner v. Bureau of Workers' Compensation Fee Review Hearing Office (American Casualty), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Dr. Scott Jaeger, M.D. petitions for review of an adjudication of the Pennsylvania Department of Labor and Industry, Bureau of Workers' Compensation Fee Review Hearing Office (Bureau), which dismissed Dr. Jaeger's application for fee review as untimely pursuant to Section 306(f.1)(5) of the Workers' Compensation Act (Act). The sole issue before this Court is whether Dr. Jaeger's application for fee review was filed in a timely manner. For the following reasons, we affirm.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(5). In relevant part, Section 306(f.1)(5) states that a provider "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." 77 P.S. §531(5).
In his brief, Dr. Jaeger addresses the merits of his fee review application. However, the only issue before the Bureau was the timeliness of Dr. Jaeger's application. Timeliness was also the only issue raised in Dr. Jaeger's petition for review. Further, the Pennsylvania Rules of Appellate Procedure provide that issues not raised at the administrative hearing will not be considered by this Court. Pa. R.A.P. 1551(a).
On December 7, 2007, a Workers' Compensation Judge approved a full compromise and release agreement for a work-related injury sustained by Salvador Lopez-Castro (Claimant) on May 17, 2006. On January 18, 2008, upon payment of all outstanding bills in its system, American Casualty Company of Reading, c/o CNA Insurance (Insurer) closed Claimant's file. On July 14, 2010, Dr. Jaeger's billing manager, Craig Rosen, submitted an invoice to Insurer in the amount of $54,697 for treatment Dr. Jaeger rendered to Claimant from September 5, 2007, to October 18, 2007.
On July 30, 2010, after reviewing the invoice and Claimant's file, Insurer's fee processing company, Coventry Health Care (Coventry), mailed an Explanation of Review (EOR) to Dr. Jaeger denying payment. The EOR was never returned as undeliverable, but Rosen claims he did not receive it. On October 21, 2010, Rosen contacted Insurer about the invoice, and Coventry sent him a copy of the EOR by fax. Reproduced Record at 15a (R.R. ___). The next day, October 22, 2010, Rosen filed an application for fee review on behalf of Dr. Jaeger.
On December 10, 2010, Rosen resubmitted Dr. Jaeger's bill to Insurer. Insurer downcoded the bill and on February 14, 2011, issued a payment in the amount of $3,554.53. Insurer issued a second payment on March 2, 2011, in the amount of $565.20. No response was received from Dr. Jaeger, but both checks were cashed. Dr. Jaeger argues that these payments extended the deadline for him to file an application for fee review. We disagree. The 2011 payments are irrelevant to our analysis because the application for fee review that is the subject of this appeal was submitted prior to Dr. Rosen resubmitting the bill on December 10, 2010.
On March 24, 2011, the Bureau denied Dr. Jaeger's application for fee review, determining that it was untimely filed. Dr. Jaeger requested a de novo hearing, which was conducted over several days beginning on October 31, 2011. Dr. Jaeger submitted the deposition of Craig Rosen. Insurer submitted the depositions of Michelle Gunselman, one of Insurer's workers' compensation specialists, and Barbara Mattioni, a Senior Operations Liaison with Coventry.
The Hearing Officer found "all of the witnesses credible but not relevant to the issue of whether the application for fee review ... was timely." Hearing Officer's Decision at 4; R.R. 87a. The Hearing Officer held that Dr. Jaeger's application for fee review was untimely because it was filed beyond the statutorily prescribed deadline of 90 days from the original billing date of treatment. Section 306(f.1)(5) of the Act, 77 P.S. §531(5). The Hearing Officer reasoned that the 90-day deadline was placed in the Act for the exact scenario presented in this case, i.e., to establish an application deadline for the provider who has not received a decision on an invoice. To allow a provider to file an application after the 90-day deadline would extend the application deadline indefinitely. Dr. Jaeger now petitions for this Court's review.
On appeal, Dr. Jaeger argues that the Hearing Officer erred by determining that his application for fee review was untimely. Specifically, Dr. Jaeger argues that he submitted his application for fee review within 30 days of receiving notification of Insurer's dispute because he filed the application the day after Coventry faxed him the copy of the EOR it had sent him several months earlier.
Our scope of review in medical fee review cases is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the necessary findings of fact were supported by substantial evidence. Legion Insurance Company c/o Inservco v. Bureau of Workers' Compensation Fee Review Hearing Office (Ferrara), 42 A.3d 1151, 1153 n.6 (Pa. Cmwlth. 2012).
Section 306(f.1)(5) of the Act, 77 P.S. § 531(5), establishes the procedures and deadlines by which providers may dispute the amount or timeliness of an insurer's payment. Section 306(f.1)(5) requires the insurer to make "payments to providers for treatment provided ... within thirty (30) days of receipt of such bills and records unless the ... insurer disputes the reasonableness or necessity of the treatment." 77 P.S. § 531(5). A provider may file an application for fee review with the Department of Labor and Industry if he wishes to dispute the amount or timeliness of the insurer's payment. Id. A provider must file an application for fee review "no more than thirty (30) days following notification of a disputed treatment or ninety (90) days following the original billing date of treatment." Id. See also Temple University Hospital v. Department of Labor & Industry, 873 A.2d 780, 781 (Pa. Cmwlth. 2005).
Section 306(f.1)(5) of the Act states:
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 pursuant to paragraph (6). 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. If the insurer disputes the reasonableness and necessity of the treatment pursuant to paragraph (6), the period for filing an application for fee review shall be tolled as long as the insurer has the right to suspend payment to the provider pursuant to the provisions of this paragraph. Within thirty (30) days of the filing of such an application, the department shall render an administrative decision.
Section 127.252(a) of the medical cost containment regulations promulgated by the Department of Labor and Industry further clarifies that an application for fee review must be filed no more than 30 days following notification of a disputed treatment or 90 days following the original billing date, "whichever is later." 34 Pa. Code §127.252(a). Section 127.252(a) has been promulgated by the Department "to provide guidance to Section 306(f.1)(5)." Fidelity & Guaranty Insurance Company v. Bureau of Workers' Compensation, 13 A.3d 534, 540 (Pa. Cmwlth. 2010). The provider has the burden of proving that its application was timely filed. Thomas Jefferson University Hospital v. Bureau of Workers' Compensation Medical Fee Review Hearing Office, 794 A.2d 933, 935-36 (Pa. Cmwlth. 2002).
Dr. Jaeger does not contest that his application, which was filed on October 22, 2010, was filed more than 90 days after the original billing date of July 14, 2010. This is untimely under Section 306(f.1)(5) of the Act. However, Dr. Jaeger claims that he filed timely because he filed within 30 days of the "notification of disputed treatment," i.e., one day after Coventry faxed him a copy of its earlier EOR. Dr. Jaeger misapprehends the statute and regulation.
Section 306(f.1)(5), on its face, establishes two fee review deadlines: 30 days after receiving notification of the insurer's dispute or 90 days after submitting an invoice for treatment. The regulation at 34 Pa. Code §127.252(a) explains the final deadline. A provider must file an application for fee review within 30 days of receiving an insurer's notification of disputed treatment, or 90 days after the original billing date, whichever is the later date. Stated another way, when a provider receives no notification from the insurer, he must file his application for fee review before the "later date" of 90 days after the original billing date. Allowing 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.
When Dr. Jaeger did not receive Coventry's initial EOR, he did not contact Coventry or file an application for fee review until more than 90 days had elapsed from the original billing date. After that deadline had passed, any fee review application was untimely. As the Bureau's Hearing Officer aptly noted, to allow a provider to file an application after 90 days from the original billing date would effectively allow a provider to extend the deadline for a timely application indefinitely and result in an absurd application of Section 306(f.1)(5) of the Act. Therefore, because Dr. Jaeger's application for fee review was filed more than 90 days after the original billing date, it was untimely.
For these reasons, we affirm the Bureau's adjudication.
We note that this Court recently addressed a similar issue in Fidelity & Guaranty Insurance Company v. Bureau of Workers' Compensation, 13 A.3d 534 (Pa. Cmwlth. 2010). That case, however, is factually distinguishable. In Fidelity, the provider filed his application for fee review more than 30 days after the notification of disputed treatment but less than 90 days after the original billing date. Applying the disjunctive rule in Section 306(f.1)(5), as modified by the "whichever is later" language in the regulation, we held that the provider's application was timely because it was filed before the 90-day deadline. In the case sub judice, all of the pertinent events, including the filing of the application for fee review, occurred after 90 days from the billing date. In fact, Dr. Jaeger's billing manager waited until around the 90th day to even contact Coventry to inquire why it had not paid or disputed the bill. --------
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 26th day of August, 2013, the order of the Bureau of Workers' Compensation Fee Review Hearing Office dated July 31, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge
77 P.S. § 531(5) (emphasis added).