IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daisy A. Rodriguez, MD, :

: Petitioner :

:

v. : No. 869 C.D. 2019

: Submitted: November 22, 2019 Workers’ Compensation Appeal : Board (Adecco Group North : America), :

: Respondent :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge 1

HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY JUDGE WOJCIK FILED: January 6, 2021

Daisy A

. Rodriguez, MD ( Provider ) petitions for r eview of the June 14,

2019 order of the Workers’ Compensat ion Appeal Board (Board), which reversed

the decision of a workers’ compensation judge (WCJ) granting Provider ’s penalty

petition for lack of evidence . Upon review, w e affirm on other grounds.

John Irons (Claimant) was employed by Adecco Group North America

(Employer) as a warehouse worker. On January 6, 2015, Claimant was injured

1 The decision in this case was reached prior to January 4, 2021, when Judge Brobson became President Judge.2

during the course and scope of his employment when he slipped and fell on snow on
Employer’s premises.

Employer issued a notice of temporary compensation payable (NTCP)

describing the injury as a strain/sprain of the low back and left knee. On January 21,

2015, Claimant filed a claim petition alleging that, in addition to in juring his back

and knee, he also injured his neck and suffered from post

- concussion syndrome and

headaches. Claimant alleged ongoing total disability. Employer filed an answer

denying that Claimant sustained injuries other than those already acknowledge d in

the NTCP.

On February 24, 2015, Employer issued a notice stopping temporary

co mpensation along with a medical

- only notice of compensation payable (NCP)

accepting liability for the medical bills for a strain/sprain of the low back and left

knee but not wage loss benefits. R eproduced Record (R .R. ) at 68a. On May 8, 2015,

Employer filed a termination petition alleging that Claimant fully recovered from

his work injury as of April 8, 2015. Employer did not file a utilization review request

at any tim e.
During that litigation, Claimant submitted evidence including the

testimony of Provider . On February 4, 2016, WCJ Lawrence denied Claimant’s

claim petition, finding that Claimant did not sustain any other injuries in addition to

the strain/sprain o f the low back and left knee

, and did not experience wage loss due

to the work injury because Employer made work available to Claimant. WCJ

Lawrence rejected Provider ’s testimony as not credible . WCJ Lawrence gr anted

Employer’s termination petition, find ing that Claimant had fully recovered from his

wo rk injury as of April 8, 2015. Claimant appealed t o the Board, which affirmed

WCJ Lawrence’s decision on December 2, 2016. R.R. at 71a

- 82a.3 On June 26, 2017, Provider filed the instant penalty petition, a lleging

that Emp loyer violated the Workers’ Compensation Act ( Act ) 2 by issuing the

medical

- only NCP accepting as compensable low back and left knee injuries but

failing to pay medical bills related to those injuries up to WCJ Lawrence’s February

4, 201 6 d ecision and order terminating Claimant’s benefits. R.R. at 6a

- 9a.

Employer filed an answer denying that it violated the Act and averring that Provider

was seeking payment for treatments not causally related to the work injury as found

by WCJ Lawrence

. Id. at 13a.

On December 20, 2017, WCJ Di Lorenzo granted Provider ’s penalty

petition, concluding that Employer vio lated the Act by failing to pay Provider for

medical treatment rendered to Claimant from April 8, 2015

, up until February 4,

2016, when WCJ Lawrence terminated Claimant’s benefits. R.R. at 16a

- 24a. WCJ

DiLorenzo found that Employer was not required to pay for treatment from January

7, 2015

, through Apr il 7, 2015

, because Provi der wa s not a panel provider. Id. WCJ

DiLorenzo declined to assess a penalty, but ordered Employer to pay $39,341.93 for

medical expenses and to reimburse Provider ’s litigation costs. Id. Employer

appealed to the Board. Id. at 25a

- 29a.

On appeal, th e Board rev ersed. The Board found that

WCJ [DiLorenzo] erred in granting [Provider’s p enalty petition] by ordering [Employer] to pay medical bills up to February 4, 2016, in the amount of $39,341.93. An employer is only responsible to pay for medical e xpenses that are causally related to the recognized work injury. Moreover, if a medical provider disputes the amount or timeliness of payments, the provider “shall file an application for fee review.” Section 306 of the Act, 77 P.S. §531(5).

2 Act of June 12, 1915, P.L. 736, as amended , 77 P.S. §§1

- 1041.4, 2501

- 27 1 0

.4

Board O pini on at 7. Provider now petitions this Court for review. 3

Provider first argues that the Board erred in holding that she must file

an application for fee review prior to filing a penalty petition . Second, Provider

argues th at the Board exceeded i t s scope of review by making its own credibility

determi nations and weighing evidence.

Employer argues that the Board correctly held that WCJ DiLorenzo’s

decision was not supported by su bstantial evidence. Employer argues that the Board

properly determined Provider should have availed herself of the fee review process

under the Act pri or to filing a penalty petition. However, Employer asserts that the

Board’s decision ultimately rests on the lack of causal relation of the billed

treatments to Claimant’s wo rk injury

.

Section 306( f.1)(1)(i) of the Act requires the employer to pay for

“reasonable surgical and medical services, services rendered by physicians or other

health care providers .

. . as and when needed.” 77 P.S. §306(f.1)(1)(i). Section

306(f.1 )(5) of the Act provides, in relevant part:

A provider who has submitted the reports and bills required by this section and who disputes the amount or timeliness of payment from the employer or insurer shall file an application for fee review with the dep artment 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) (emphasis added).

Once an insurer or employer makes a payment to the extent it dee ms
itself liable, a provider must file her application for fee review within the provided

3 Our scope of review is limited to determining whether constitu tional rights were violated, whether the adjudication is in accordance with the law, and whether the necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.5

time limit or it will not be considered. Hospital of the University of Pennsylvania v.

Bureau of Workers’ Compensation (Tyson Shared Serv ices

, Inc.) , 932 A.2d 1010

,
1014 (Pa. Cmwlth. 2007). After a provider has filed an application for fee review

with the Bureau of Workers’ Compensation (Bureau) , an administrative decision

shall be made within 30 days. 34 Pa. Code §127.256. A provider or insurer has the

right to contest an adverse administrative decision by filing a written request for a

hearing with the Bur eau. 34 Pa. Code §127.257. A party aggrieved by a fee review

adjudicat ion may appeal to this Court. 34 Pa. Code §127.261.

Notably, where the insurer i ssues an NCP, the insurer may still contest

liability for medical care or for a particular treatment on several grounds. If the NCP

and the insurer’s accompanying liability for medical compensation has not been

modified or terminated, the insurer may none theless question liability for a particular

treatment. 77 P.S. § 531(5).

In this case, Employer is responsible for paying Claimant’s medical

bills for the accepted strain/sprain of the low back and left knee

. Employer made

payments for treatments relate d to the work injury, as required by Section

306(f.1)(1)(ii) of the Act, totaling $1,704.59. R.R. at 200a. However , Provider had

billed Employer for treatment that Employer asserts is not related to the work injury

, totaling $ 73,188.00. Id. at 206a

- 47a. This resulted in a genuine dispute over the

amount due to Provider, imp licating the fee review process outlined above

. Section

306(f.1) of the A ct. 4

4 We note that the facts of this case potentially implicate the Act’s utilization review (UR) process. However, the Act does not give Provider standing to file for utilization review; only an employer, employee

, or insurer may file an initial request for U R. After an adverse UR determination, a provider has standing to appeal to the WCJ. Section 306(f.1)(6)(iv) of the Act,

77 P.S. § 531(6).6 Provider is attempting to resolve a fee dispute, but failed to follow the

procedure and timeline provided by the Ac t. As the Board notes, there is no record

evidence of Provider availing herself of the fee review process. R.R. at 44a. T he

B ureau and its hearing examiners have jurisdiction over fee disputes, not the WCJs.

34 Pa. Code §§127.256, 127.257. If a provider was able to settle a fee dispute

through the use of a penalty petition, it would render the fee review provisions of the

Act meaningless. 5 Therefore, the Act required Provider to file for fee review prior

to filing a penalty p etition for nonpayment.

W e distinguish our holding in this case from our decision in Hough v.
Workers’ Compensation Appeal Board (AC&T Companies) , 928 A.2d 1173 (P a.

Cmwlth. 2007). Contrary to Provider’s assertions, Hough does not hold that a

provider may file a penalty petition prior to availing it self of the fee review process.

Rather, this Court held in Hough that Section 306(f.1)(5) of the Act does not require

th at a provider seek fee review before a claimant can file a penalty petition for

unpaid medical bills. 928 A.2d at 1179. In this case, Provider is the party filing the

penalty petition and has failed to avail herself of the Act’s fee review process. A s a

result, WCJ DiLorenzo could not properly dispose of the instant fee dispute

, and the

Board’s order will be affirmed

. 6
, 7

5 There is a presumption that the General Assembly does not intend a result that is absurd, impossible of executio n or unreasonable when enacting a statute. Enterprise Rent

- A

- Car v. Workers’ Compensation Appeal Board (Clabaugh) , 934 A.2d 124, 130 (Pa. Cmwlth. 2007).

6 We “may affirm on other grounds where grounds for affirmance exist.” Kutnyak v. Department of Corrections , 748 A.2d 1275, 1279 n.9 (Pa. Cmwlth. 2000); accord Sloane v. Workers’ Compensation Appeal Board (Children’s Hospital of Philadelphia) , 124 A.3d 778, 786 n.8 (Pa. Cmwlth. 2015).

7 Moreover, we would affirm the Board’s order even if we were to reach the merits of this appeal. “[L]iability for an injury is distinct from liability for a particular treatment or its cost. The (Footnote continued on next p age...)7 Accordingly, the Board’s order is affirmed.

MICHAEL H. WOJCIK, Judge

NCP, even if ‘open’ and bin ding with respect to liability for the injury, is not dispositive as to the medical care provider’s claim for reimbursement for the cost of a particular treatment.” Crozer Chester Medical Center v. Department of Labor & Industry , Bureau of Workers’ Compen sation,
Health Care Services Review Division , 22 A.3d 189, 197 (Pa. 2011). Under the Act, an employer

is only liable for payment of medical bills arising out of work

- related injuries. Mulholland v. Workmen’s Compensation Appeal Board (Bechtel Construction ) , 669 A.2d 465, 469 (Pa. Cmwlth. 1995). The moving party bears the burden of proof. 34 Pa. Code § 131.121(g). The Board properly held that WCJ DiLorenzo’s decision was not supported by substantial and competent evidence

. T he testimony regarding the cod ing of unpaid bills of Provider’s director of billing and collections, Ms. Angelini, is insufficient to establish a causal relation between the treatment and the work injury. Thus, Provider’s failure to introduce any competent testimony in this regard lef t WCJ

DiLorenzo with no basis upon which to grant the penalty petition.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Daisy A. Rodriguez, MD, :

: Petitioner :

:

v. : No. 869 C.D. 2019

: Workers’ Compensation Appeal : Board (Adecco Group North : America), :

: Respondent :

O R D E R

AND NOW, this 6 th day of January , 20 21

, the June 14, 2019 order of

the Workers’ Compensation Appeal Board in the above

- captioned matter is hereby

AFFIRMED.

__________________________________ MICHAEL H. WOJCIK, Judge