             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Physical Therapy Institute, Inc.,
                                    :
                  Petitioner        :
                                    :
            v.                      : No. 1599 C.D. 2018
                                    : Submitted: May 6, 2019
Bureau of Workers’ Compensation Fee :
Review Hearing Office (Donegal      :
Mutual Insurance Company),          :
                  Respondent        :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                    FILED: July 10, 2019

             Before the Court is an application for summary relief filed by The
Physical Therapy Institute, Inc. (PTI), requesting a remand of this matter to the
Bureau of Workers’ Compensation, Fee Review Hearing Office (Hearing Office).
PTI asserts that a remand is required given our recent decision in Armour Pharmacy
v. Bureau of Workers’ Compensation Fee Review Hearing Office, 206 A.3d 660 (Pa.
Cmwlth. 2019). Donegal Mutual Insurance Company (Insurer) has joined in PTI’s
request. We agree and will grant summary relief.
             On February 21, 2018, Gregory F. Habib, D.O., directed Bryan Reisz
(Claimant) to undergo physical therapy for his work injury.        Thereafter, PTI
submitted two invoices to Insurer for the physical therapy given Claimant during the
period of March 1, 2018, through June 5, 2018. The first invoice sought payment of
$15,276.52; the second invoice sought payment of $651.40. Insurer denied PTI
payment for the stated reason that PTI was not a provider within the meaning of the
Workers’ Compensation Act (Act).1 Insurer’s denial stated as follows:

               The physical therapy services were billed by [PTI], which is a
               Medicare Part A provider, although the billed services were
               performed by a Medicare Part B provider and not by PTI. The
               payment due to PTI is $0.00, since PTI was not the provider of
               the physical therapy services represented by the submitted bill.
               Since this dispute involves the identity of the physical therapy
               provider, if an Application for Fee Review is filed by [PTI], it
               must be dismissed for lack of fee review jurisdiction….

Reproduced Record at 30a (R.R. __).2 Ultimately, Insurer issued seven separate
denials of payment for services rendered over different periods of time.
               In response, PTI filed two fee review applications with the Bureau’s
Medical Fee Review Section, requesting a review of Insurer’s refusal to pay its
invoices. Attached to both applications was a letter from the President of PTI stating
that Claimant received physical therapy from “The pt Group,” and on January 1,
2018, PTI acquired the assets of “The pt Group.” R.R. 151a. Further, PTI’s legal
counsel advised Insurer, in writing, that a reorganization of PTI had taken place that
includes former owners of “The pt Group.” Id. Thus, PTI was the “provider” of the
services rendered pursuant to the Act.3

1
  Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2710.
2
  “Medicare is comprised of two principle parts: Part A (for inpatient hospital and post-hospital
care), 42 U.S.C. §§1395c-1395i-5; and Part B (for physician services and outpatient services), 42
U.S.C. §§1395j-1395w-4.” Mulberry Square Elder Care and Rehabilitation Center v. Department
of Human Services, 191 A.3d 952, 955-56 (Pa. Cmwlth. 2018).
3
  Section 306(f.1)(1)(i) of the Act requires an employer to pay for “reasonable surgical and medical
services, services rendered by physicians or other health care providers ... medicines and supplies,
as and when needed.” 77 P.S. §531(1)(i) (emphasis added). Section 306(f.1)(5) of the Act allows
a “provider who ... disputes the amount or timeliness of [a] payment from the employer or insurer”
to file an application for fee review. 77 P.S. §531(5). Section 109 of the Act defines a “[h]ealth
care provider” as follows:
                                                 2
               The Medical Fee Review Section granted PTI’s applications, awarding
PTI full payment, plus 10 percent interest. Insurer then filed two requests for hearing
to contest the fee review determinations. Insurer argued that PTI did not submit
adequate proof of its purchase of The pt Group. Insurer also argued that the Medical
Fee Review Section lacked jurisdiction to determine whether PTI was a provider
within the meaning of the Act. Insurer requested its appeals to the Hearing Office
be dismissed for lack of jurisdiction.
               The Hearing Office assigned Insurer’s appeals to a hearing officer, who
directed the parties to brief the jurisdictional issue. On November 18, 2018, relying
on this Court’s holding in Selective Insurance Company of America v. Bureau of
Workers’ Compensation Fee Review Hearing Office (The Physical Therapy
Institute), 86 A.3d 300 (Pa. Cmwlth. 2014),4 the Hearing Office held that the issue
of whether PTI was a provider was beyond the jurisdiction of both the Medical Fee
Review Section and the Hearing Office. As such, the Hearing Office vacated the
determinations of the Medical Fee Review Section and dismissed Insurer’s appeals.
               PTI petitioned for review to this Court, raising three issues.5 First, it
argued that the Hearing Office’s conclusion that it lacks jurisdiction to decide the


        [A]ny person, corporation, facility or institution licensed or otherwise authorized
        by the Commonwealth to provide health care services, including, but not limited
        to, any physician, coordinated care organization, hospital, health care facility,
        dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor
        or pharmacist and an officer, employe or agent of such person acting in the course
        and scope of employment or agency related to health care services.
77 P.S. §29.
4
  This Court overruled Selective Insurance to the extent it was inconsistent with our decision in
Armour Pharmacy, 206 A.3d at 672.
5
  This Court’s review of a decision by the Hearing Office is limited to determining whether the
necessary findings of fact are supported by substantial evidence, whether constitutional rights were
violated, and whether the Hearing Office committed an error of law. 2 Pa. C.S. §704; Walsh v.
                                                 3
matter violates due process.6 Second, it argued that Selective Insurance was wrongly
decided. Third, it argued that the Hearing Office erred by refusing to allow PTI to
submit into evidence “the original Applications for Fee Review as well as complete
sets of the bills and supporting documentation” subsequent to the close of the
hearing. PTI Brief at 14-15.
              Thereafter, PTI filed the instant application for summary relief.
Pennsylvania Rule of Appellate Procedure 1532(b) states:

              Summary relief. At any time after the filing of a petition for
              review in an appellate or original jurisdiction matter the court
              may on application enter judgment if the right of the applicant
              thereto is clear.

PA. R.A.P. 1532(b). “An application for summary relief is properly evaluated
according to the standards for summary judgment.” Myers v. Commonwealth, 128
A.3d 846, 849 (Pa. Cmwlth. 2015) (quoting McGarry v. Pennsylvania Board of
Probation and Parole, 819 A.2d 1211, 1214 n.7 (Pa. Cmwlth. 2003)). We have held
“an application for summary relief may be granted if a party’s right to judgment is
clear ... and no issues of material fact are in dispute.” Myers, 128 A.3d at 849


Bureau of Workers’ Compensation Fee Review Hearing Office (Traveler’s Insurance Co.), 67
A.3d 117, 120 n. 5 (Pa. Cmwlth. 2013). Regarding questions of law, our scope of review is plenary
and our standard of review is de novo. Sedgwick Claims Management Services, Inc. v. Bureau of
Workers’ Compensation, Fee Review Hearing Office (Piszel and Bucks County Pain Center), 185
A.3d 429, 433 n.2 (Pa. Cmwlth. 2018).
6
 The Due Process Clause of the Fourteenth Amendment to the United States Constitution states
as follows:
        No State shall make or enforce any law which shall abridge the privileges or
        immunities of citizens of the United States; nor shall any State deprive any person
        of life, liberty, or property, without due process of law; nor deny to any person
        within its jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV, §1. The Pennsylvania Constitution also provides this protection. PA.
CONST. art. I, §9.
                                               4
(quoting McGarry, 819 A.2d at 1214 n.7). PTI contends that its application meets
the exacting standards for summary relief, and we agree.
                 In Armour Pharmacy, the Hearing Office dismissed the employer’s
challenge to a fee determination for the stated reason that it lacked jurisdiction to
decide the issue. 206 A.3d at 664. This Court reversed, specifically holding that the
Hearing Office has jurisdiction to determine the threshold question whether an entity
is a “provider” under the Act. Id. at 671. As such, the matter was remanded to the
Hearing Office to determine the pharmacy’s provider status. We agree that Armour
Pharmacy is dispositive.
                 Because PTI’s right to relief is clear, we grant its application for
summary relief. Accordingly, as in Armour Pharmacy, we reverse the Hearing
Office’s adjudication and remand for a determination of whether PTI is a “provider”
within the meaning of Section 109 of the Act, 77 P.S. §29.7


                                          _____________________________________
                                          MARY HANNAH LEAVITT, President Judge




7
    Because we reverse and remand for hearing, PTI’s third issue is moot.
                                                 5
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

The Physical Therapy Institute, Inc.,
                                    :
                  Petitioner        :
                                    :
            v.                      : No. 1599 C.D. 2018
                                    :
Bureau of Workers’ Compensation Fee :
Review Hearing Office (Donegal      :
Mutual Insurance Company),          :
                  Respondent        :

                                    ORDER

             AND NOW, this 10th day of July, 2019, the application for summary
relief filed by The Physical Therapy Institute, Inc., is hereby GRANTED, the
November 16, 2018, adjudication of the Bureau of Workers’ Compensation Fee
Review Hearing Office is REVERSED and the matter is REMANDED in
accordance with the attached opinion.
             Jurisdiction relinquished.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
