IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sherri Landes, Ph.D., :

Petitioner :

:

v. : No. 1519 C.D. 2018

: ARGUED: November 14, 2019

Bureau of Workers' Compensation :

Fee Review Hearing Office (Vigilant :

Insurance Company), :

Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge 

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE CEISLER FILED: January 13, 2020

Sherri Landes (Provider) petitions this Court for review of the November 6, 

2018 decision of the Bureau of Workers’ Compensation Fee Review Hearing Office 

(Bureau). The Bureau determined that Vigilant Insurance Company (Insurer) 

appropriately reimbursed Provider for psychotherapy services rendered to a claimant 

receiving benefits pursuant to the Workers’ Compensation Act (Act).

1 Provider 

argues on appeal that the Bureau’s hearing officer capriciously disregarded evidence 

and, as a result, her finding that Insurer’s reimbursement rate was correct is not 

supported by substantial evidence.

I. Procedural and Factual Background

Provider is a licensed psychologist. Notes of Testimony (N.T.), 6/20/17, at 5. 

As part of her practice, Provider treats patients suffering from a work injury. Id. at 

 

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4 – 2501-2710.
2

6. Individual psychotherapy sessions with these patients are generally 45 minutes 

in length and Provider bills $150 for her services. Id. at 7, 9. When submitting a 

bill to an insurer, Provider identifies the services rendered using a Current 

Procedural Terminology (CPT) code.2 Id. at 11. Provider bills for psychotherapy 

services under CPT code 90834 (2013 Code), which involves “[p]sychotherapy, 45 

minutes with patient and/or family member.”3Id., Ex. No. 2 at 3. Prior to 2013, 

Provider billed psychotherapy services under CPT code 90806 (Original Code) for

“[i]ndividual psychotherapy, insight oriented, behavior modifying and/or 

supportive, in an office or out-patient facility, approximately 45-50 minutes face-toface with the patient.” N.T., 6/20/17, at 11, Ex. No. 2 at 2.

Provider’s reimbursement rate for her services is calculated using the 

Medicare fee schedule (Fee Schedule) as a basis, per Section 127.103 of the 

Department of Labor and Industry’s (Department) Workers’ Compensation Medical 

Cost Containment Regulations (Regulations).

4

 34 Pa. Code § 127.103. The effective 

date of the CPT code under which a particular service is billed further influences the 

applicable reimbursement rate. Section 127.153 of the Regulations provides:

 

2 CPT codes are developed, maintained, and copyrighted by the American Medical 

Association (AMA) to help ensure uniformity among medical professionals and the health 

insurance industry. Liberty Mut. Ins. Co. v. Bureau of Workers’ Comp., Fee Review Hearing Office 

(Kepko, D.O., Lindenbaum, D.O. c/o East Coast TMR), 37 A.3d 1264, 1267 n.6 (Pa. Cmwlth. 

2012). These codes consist of a group of numbers assigned to every task and service a medical 

practitioner may provide to a patient, including medical, surgical, and diagnostic services. Id.

3 CPT descriptions are derived from the CPT Manual produced by the AMA. N.T., 

6/20/17, at 21.

4 Fee Schedules are published annually by the Department in the Pennsylvania Bulletin, 

effective January 1 of each year. 34 Pa. Code § 127.152(b).
3

(a) On and after January 1, 1995, outpatient providers 

whose payments under the act are based on the 

Medicare fee schedule under §§ 127.103--127.108 

shall be paid as follows: the amount of payment 

authorized shall be frozen on December 31, 1994, and 

updated annually by the percentage change in the 

Statewide average weekly wage.

(b)On and after January 1, 1995, adjustments and 

modifications by HCFA[5] relating to a change in 

description or renumbering of any HCPCS[

6

] code will 

be incorporated into the basis for determining the 

amount of payment as frozen in subsection (a) for 

services rendered under the act.

(c) On and after January 1, 1995, payment rates under the 

act for new HCPCS codes will be based on the rates 

allowed in the Medicare fee schedule on the effective 

date of the new codes. These payment rates shall be 

frozen immediately, and thereafter updated annually by 

the percentage change in the Statewide average weekly 

wage.

34 Pa. Code § 127.153 (emphasis added). 

In essence, if a CPT code has merely been renumbered, or its description 

changed, a provider’s reimbursement rate is not altered but remains the amount in 

effect and frozen as of December 31, 1994, adjusted annually by the percentage 

 

5 HCFA is an acronym for the Health Care Finance Administration (HCFA), an agency 

within the United States Department of Health and Human Services that administers Medicare 

payments. 42 C.F.R. §§ 400.200 – 600.715. While HCFA was renamed the Centers for Medicare 

and Medicaid Services (CMS), the Regulations have not been updated to reflect this change. 

Federal Register, https://www.federalregister.gov/agencies/centers-for-medicare-medicaidservices (last visited January 2, 2020).

6 HCPCS stands for the Healthcare Common Procedure Coding System, which contains 

the codes and terminology used for billing Medicare and other health insurance programs.

CMS.gov, HCPCS General Information. 

https://www.cms.gov/Medicare/Coding/MedHCPCSGenInfo/index.html (last visited January 2, 

2020). Level I of the HCPCS utilizes the AMA CPT codes. Id.
4

change in the statewide average weekly wage. However, if a new CPT code is 

established, the reimbursement rate for the related service is determined as of the 

new code’s effective date. This rate is thereafter adjusted annually by the percentage 

change in the statewide average weekly wage. 

Provider’s rate of reimbursement for psychotherapy services decreased after 

implementation of the 2013 Code, although the services she provided had not 

changed. N.T., 6/20/17, at 12. Her rate of reimbursement in 2012 under the Original 

Code was $132. Id. at 15. In 2016, Provider received $96.05 for each psychotherapy 

session billed under the 2013 Code. Id. at 13, 16. 

In conjunction with treatment provided in 2017 and 2018 to a workers’ 

compensation claimant, Provider billed Insurer $150 per session for psychotherapy 

services. Supplemental Reproduced Record (S.R.R.) at 9b, 15b. Insurer issued 

explanations of benefits which reduced Provider’s charges. Id. Provider was paid 

$97.68 for services rendered on December 7, 2017. Id. at 9b. For services rendered

March 15, 2018 and March 22, 2018, Provider received $100.61 for each session, 

for a total reimbursement in the amount of $201.22. Id. at 15b. Provider sought 

review of these payments by the Bureau’s Medical Fee Review Section, which

determined that no additional payment was due. Id. at 33b-36b, 57b-60b. Provider 

sought further review by a hearing officer.

In support of her application for fee review, Provider submitted testimony 

taken before Hearing Officer Thomas Kuzma in an unrelated workers’ compensation 

fee review hearing during which Provider similarly contested her rate of 

reimbursement under the 2013 Code. During that hearing, Provider testified 

generally as to the services she provides and her billing practices. Provider asserted 

that the psychotherapy services she rendered under the Original Code were the 

“exact same service[s]” billed under the 2013 Code. N.T., 6/20/17, at 23. As to the 
5

differences between the two codes, Provider opined that the CPT Manual’s 

descriptive language for the 2013 Code had not changed much from the Original 

Code and psychotherapy was described “in almost exactly the same verbiage.”

7

 Id. 

at 11, 22. Provider believed some language was removed from the Original Code 

description to avoid confusion. Id. at 31. 

Provider also presented the January 3, 2018, decision of Hearing Officer 

Kuzma (Kuzma Decision), who found that the 2013 Code was not a new code but 

 

7 Provider submitted a document which set forth the CPT Manual definitions for both the 

Original and 2013 Codes. The Original Code defined psychotherapy as: 

the treatment of mental illness and behavioral disturbances in which 

the clinician establishes a professional contact with the patient, 

through definitive therapeutic communication, attempts to alleviate 

the emotional disturbances, reverse or change maladaptive patterns 

of behavior, and encourage personality growth and development. 

The codes for reporting psychotherapy are divided into two broad 

categories: interactive psychotherapy; and insight oriented, behavior 

modifying and/or supportive psychotherapy.

Insight oriented, behavior modifying and/or supportive 

psychotherapy refers to the development of insight or affective 

understanding, the use of behavioral modification techniques, the 

use of supportive interactions, the use of cognitive discussion of 

reality, or any combination of the above to provide therapeutic 

change.

N.T., 6/20/17, Ex. No. P-2 at 1.

Psychotherapy is defined as the following in full in the 2013 CPT Manual as:

the treatment of mental illness and behavioral disturbances in which 

the physician or other qualified healthcare professional, through 

definitive therapeutic communication[,] attempts to alleviate the 

emotional disturbances, reverse or change maladaptive patterns of 

behavior, and encourage personality growth and development.

Id. at 2.
6

represented a change in the description and numbering of the Original Code. Kuzma 

Decision, Finding of Fact (F.F.) No. 14. As such, Hearing Officer Kuzma concluded 

that the reimbursement rate for psychotherapy services was not altered by the 2013 

Code and Provider was entitled to reimbursement in the amount of $132, adjusted 

annually by the percentage change in the statewide average weekly wage. Id., 

Conclusion of Law (COL) No. 6.

Having reviewed the evidence and the Kuzma Decision, Hearing Officer 

Colleen Pickens issued a decision on November 6, 2018, denying Provider’s fee 

review (Pickens Decision). Pickens Decision at 13. Provider’s testimony was 

deemed credible in regards to her description of the services provided, her billing 

procedures, and the amount of payments Provider received between 1993 and 2013. 

Pickens Decision, F.F. No. 14(b). Provider’s testimony that the language in the 

Original Code and the 2013 Code are “almost exactly the same,” however, was 

rejected as not credible, as there existed clear differences between the descriptions 

of psychotherapy in the Original Code and the 2013 Code. Id. Hearing Officer 

Pickens further rejected Provider’s opinion that she should continue to receive $132, 

plus cost of living increases, for psychotherapy sessions billed under the 2013 Code. 

Id. 

Hearing Officer Pickens determined that substantial changes were made from 

the Original Code such that the 2013 Code should be considered “an entirely new 

code,” and not merely a change in the description or numbering of the Original

Code.

8 Pickens Decision, COL No. 6. As the 2013 Code represented a new code,

Section 127.253(c) of the Regulations applied. F.F. No. 14(c). According to the 

applicable Fee Schedules, the 2017 and 2018 reimbursement rates for the 2013 Code 

 

8 Hearing Officer Pickens expressly found that she was not bound by the Kuzma Decision. 

Pickens Decision, F.F. No. 14(d).
7

were $97.68 and $100.61, respectively. F.F. No. 14(b). Insurer paid these amounts

for Provider’s 2017-18 services and Provider offered no evidence which proved 

different rates applied. Id. Insurer thus met its burden of proof9that it appropriately 

reimbursed Provider and she was not due any additional payment. F.F. No. 14(e), 

COL No. 6. This appeal followed.

II. Issue on Appeal

On appeal,10 Provider argues that Hearing Officer Pickens erred in 

determining that Insurer’s reimbursement rate was appropriate as she capriciously 

disregarded Provider’s testimony and, consequently, Hearing Officer Pickens’

findings of fact are not based on substantial evidence. 

III. Analysis

Provider argues that Hearing Officer Pickens capriciously disregarded her 

uncontradicted testimony that the medical services she provided were exactly the 

same, regardless of the code under which they were billed. Provider submits that 

the purpose of the Regulations is to establish procedures for reimbursing providers, 

not to reduce a provider’s rate of reimbursement following a “minor administrative 

change[,]” when the services rendered have remained the same. Provider’s Br. at 

 

9 During a fee review hearing, the insurer bears the burden of proving by a preponderance 

of the evidence that it properly reimbursed the provider. 34 Pa.Code § 127.259(f). 

10 This Court's scope of review of a decision by the Bureau's Hearing Office determines 

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’ Comp. Fee Review Hearing Office (Traveler's Ins.

Co.), 67 A.3d 117, 120 n.5 (Pa. Cmwlth. 2013). Substantial evidence is such relevant evidence as 

a reasonable person might accept as adequate to support a conclusion. Washington v. Workers’ 

Comp. Appeal Bd. (Pa. State Police), 11 A.3d 48, 54 n.4 (Pa. Cmwlth. 2011). Regarding questions 

of law, our scope of review is plenary and our standard of review is de novo. Sedgwick Claims

Mgmt. Serv., Inc. v. Bureau of Workers’ Comp., Fee Review Hearing Office (Piszel and Bucks Cty.

Pain Ctr.), 185 A.3d 429, 433 n.2 (Pa. Cmwlth. 2018).
8

13. Provider maintains that the 2013 Code represents a change in the description to, 

and renumbering of, the Original Code. In that regard, Provider urges this Court to 

accept the findings of Hearing Officer Kuzma that a new code was not established 

and Provider is entitled to reimbursement in the amount of $132, adjusted annually 

by the statewide average weekly wage. 

Insurer contends that Hearing Officer Pickens correctly applied the 

controlling regulations and Fee Schedules. In accordance with Section 127.153(b) 

of the Regulations, the rate of reimbursement under a CPT code which has merely 

changed or been renumbered is based on the rate in effect and frozen on December 

31, 1994. The basis for reimbursement under a new CPT code, however, is 

determined by the effective date of the new code. 34 Pa. Code § 127.153(c). Insurer 

maintains that the 2013 Code is an entirely new code as the description of services

differs from those described in the Original Code, and the 2013 Code reduced the 

therapy session from a flexible period of 45-50 minutes to a set period of 45 minutes. 

Payment for Provider’s 2017-18 services was governed by the 2017 and 2018 Fee 

Schedules, and the Hearing Officer’s determination in that regard was not in error. 

Insurer rejects the Kuzma Decision as irrelevant and non-binding, and asserts 

Hearing Officer Pickens was not required to make the same credibility findings, 

particularly in light of the fact that Provider’s deposition was taken in an unrelated 

case involving a different claimant. Furthermore, the Kuzma Decision represents an 

error of law, as Hearing Officer Kuzma ignored the plain language of the applicable 

regulations when he determined the 2013 Code was merely a modification of the 

Original Code. Finally, Insurer contends that Provider’s argument that her testimony 

was capriciously disregarded by the Hearing Officer has no merit. Rather, Hearing 
9

Officer Pickens considered Provider’s testimony and explained her reasons for 

discrediting portions of it. 

A capricious disregard of evidence is a deliberate disregard of competent 

evidence which a person of ordinary intelligence could not possibly have avoided in 

reaching the result. Frankford Hosp. v. Workers’ Comp. Appeal Bd. (Walsh), 906 

A.2d 651, 655 (Pa. Cmwlth. 2006). Capricious disregard of competent evidence 

may also be described as the willful, deliberate disbelief of an apparently trustworthy 

witness, whose testimony one has no basis to challenge. CRL of Maryland, Inc. v. 

Workmen’s Comp. Appeal Bd. (Hopkins), 627 A.2d 1238, 1242 (Pa. Cmwlth. 1993). 

Where substantial evidence exists to support the factual findings, and those findings 

support the legal conclusions, it should remain a rare instance in which an appellate 

court disturbs an adjudication based upon capricious disregard. Wintermyer, Inc. v. 

Workers’ Comp. Appeal Bd. (Marlowe), 812 A.2d 478, 487 n.14 (Pa. 2002). 

Reversal based on this type of review should occur only where it is clear beyond 

doubt that an agency's legal conclusions were based upon a capricious disregard of 

evidence. Id. at 486. This might occur if “the agency expressly refused to resolve 

conflicts in the evidence and make essential credibility determinations.” Id.

In arguing Hearing Officer Pickens capriciously disregarded her testimony, 

Provider points to the rejection, “without any contrary evidence or testimony, that 

the medical service provided to the claimant was exactly the same[,]” regardless of 

the code by which it was billed. Provider’s Br. at 13. 

Provider’s argument misapprehends the findings and lacks merit, as Hearing

Officer Pickens carefully summarized the testimony presented and set forth her 

credibility determinations. Provider’s testimony that the code descriptions, and not 

the services rendered, were “almost exactly the same” was discredited, as Hearing 
10

Officer Pickens found that the definitions for the Original and 2013 Codes clearly 

differed. Pickens Decision, F.F. No. 14(b). Provider attributed these differences to 

an attempt by the drafter to avoid confusion, however, this testimony appears to be 

pure speculation, as there is no evidence to suggest Provider was involved in drafting 

the 2013 Code or that she has special knowledge regarding the decision to replace 

the Original Code. Moreover, contrary to Provider’s assertion her testimony was 

deliberately ignored, Hearing Officer Pickens did indeed credit Provider’s 

“description of the psychotherapy sessions she provides[.]” Id. 

Provider’s argument may be more fairly characterized as disagreement with 

the credibility findings made by Hearing Officer Pickens. As matters of credibility 

and evidentiary weight are within the sole province of the fact-finder, Pittsburgh

Mercy Health System v. Bureau of Workers' Compensation, Fee Review Hearing

Office (U.S. Steel Corporation), 980 A.2d 181, 184-85 (Pa. Cmwlth. 2009), we will 

not reweigh the evidence or substitute our credibility determinations for those of 

Hearing Officer Pickens. 

As to whether the 2013 Code constituted the establishment of a new code or 

merely a revision of the Original Code, a question arises as to Hearing Officer 

Pickens’ jurisdiction to make such a determination, given the limited scope of the 

fee review process, which is limited to the timeliness of an insurer’s payment and 

the correct amount of reimbursement owed to the provider. 34 Pa. Code § 127.251; 

Crozer Chester Med. Ctr. v. Bureau of Workers’ Comp. Health Care Review Div., 

22 A.3d 189, 196 (Pa. 2011). 

Section 306(f.1)(5) of the Act provides in part as follows:

All payments to providers for treatment provided 

pursuant to [the Act] shall be made within [30] days of 

receipt of such bills and records unless the employer or 

insurer disputes the reasonableness or necessity of the 
11

treatment . . . 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 [D]epartment. 

77 P.S. § 531(5) (emphasis added).

Therefore, Section 306(f.1)(5) mandates the prompt payment of any 

undisputed treatment within 30 days of a bill’s receipt. In the event payment is not 

made, or the amount paid is disputed, an application for fee review is filed. The fee 

review process presupposes that liability for payment of medical bills has been 

established. Nickel v. Workers’ Comp. Appeal Bd. (Agway Agronomy), 959 A.2d 

498, 503 (Pa. Cmwlth. 2008). 

Presently, Provider has not alleged her bills were not paid in a timely manner. 

Provider has not argued that the fees paid were not calculated in accordance with the 

applicable Fee Schedules, or that Insurer applied the incorrect CPT code in 

determining her rate of reimbursement. Rather, Provider presents a challenge to the 

classification of the 2013 Code as a new code subject to Section 127.153(c) of the 

Regulations, which relies on the effective date of the new code to determine the 

appropriate reimbursement rate. A determination of whether the classification is 

appropriate or not is quite simply outside the jurisdiction of the medical fee review 

process. Hearing Officer Pickens’ review was therefore limited to determining 

whether Provider was appropriately compensated under the Fee Schedules. 

Focusing on that narrow issue, we discern no error in her conclusion that 

Provider was owed no additional payment. Based on the applicable Fee Schedules, 

the reimbursement rate for the 2013 Code was $97.68 in 2017 and $100.61 in 2018. 

There is no dispute that Insurer paid these amounts for Provider’s 2017-18 services. 

Accordingly, we affirm the November 6, 2018 order of Hearing Officer Pickens, but 
12

only to the extent she concluded Provider was appropriately reimbursed for

psychotherapy services rendered. We decline to address whether she correctly

concluded the 2013 Code was governed by Section 127.153(c) of the Regulations, 

as that issue lies outside the limited jurisdiction of the medical fee review process.11 

__________________________________

ELLEN CEISLER, Judge

 

11 Following oral argument on November 14, 2019, Insurer submitted an application to 

amend its brief for purposes of correcting an outdated web link. Having received no objection 

from Provider, Insurer’s application is hereby granted. 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sherri Landes, Ph.D., :

Petitioner :

:

v. : No. 1519 C.D. 2018

:

Bureau of Workers' Compensation :

Fee Review Hearing Office (Vigilant :

Insurance Company), :

Respondent :

O R D E R

AND NOW, this 13th day of January, 2020, the November 6, 2018 order of 

Bureau of Workers’ Compensation Fee Review Hearing Office is hereby affirmed. 

Vigilant Insurance Company’s Application to Amend Brief is hereby granted.

__________________________________

ELLEN CEISLER, Judge