               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard Mandel, M.D.,                 :
                 Petitioner           :
                                      :        No. 1126 C.D. 2015
            v.                        :
                                      :        Submitted: October 16, 2015
Bureau of Workers’ Compensation       :
Fee Review Hearing Office (Penn       :
National Security Insurance Company), :
                   Respondent         :


BEFORE:      HONORABLE DAN PELLEGRINI, President Judge1
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE McCULLOUGH                                          FILED: January 27, 2016


             Richard Mandel, M.D., petitions for review of the decision of a fee
review hearing officer (Hearing Officer) involving nine consolidated fee review
petitions, all relating to therapeutic magnetic resonance (TMR) treatment provided to
Edward Tygh (Claimant) on multiple dates in 2009 and 2010. By decision and order
dated May 26, 2015, the Hearing Officer granted in part and denied in part eight fee
review applications, numbers 321567, 321442, 321449, 321451, 321466, 321443,




      1
          This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.
321563, and 322482, and directed that the same be paid under CPT code 97032.2, 3
The Hearing Officer also denied and dismissed another application, number 322391,
as untimely filed.
                Claimant sustained an injury in the course and scope of his employment
with Blasz Construction (Employer) on February 2, 2009.                      At that time, Penn
National (Insurer) provided Employer’s workers’ compensation insurance coverage.
Claimant eventually came under the care of Dr. Mandel, who applied TMR therapy
on multiple dates in 2009 and 2010. After billing, numerous disputes arose between
Dr. Mandel and Insurer regarding the appropriate coding and reimbursement for this
treatment.4       Dr. Mandel submitted these disputes to the Bureau of Workers’
Compensation Fee Review Office, which decided the disputes in Insurer’s favor. Dr.
Mandel then filed multiple requests for review of these fee review determinations.
These requests were consolidated and assigned to the Hearing Officer for de novo
review. (Hearing Officer’s Findings of Fact Nos. 1-4.)
                In the course of hearings before the Hearing Officer, Dr. Mandel
stipulated that Insurer had properly downcoded the TMR therapy claims relating to
fee review application numbers 321567, 321442, 321449, 321451, 321466, 321443,
and 322482, to CPT code 97032.                Dr. Mandel also stipulated that fee review

       2
          CPT code refers to a “Current Procedural Terminology” code developed, maintained, and
copyrighted by the American Medical Association to help ensure uniformity among medical
professionals and the health insurance industry. CPT 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.

       3
         The Hearing Officer further awarded Dr. Mandel interest at the rate of 10% of the charges
with respect to four treatment dates, February 8, 15, 19, and 22, 2010, encompassed under
application number 321563.

       4
           Dr. Mandel sought payment of $3,298.00 for each treatment.



                                                  2
application number 322391 was untimely filed and that the only fee review
application in which a material issue needed to be resolved was number 321563.
(Hearing Officer’s Findings of Fact Nos. 5-6.)
              Insurer alleged that fee review application number 321563 was untimely
because it was not filed within thirty days following notification of a disputed fee.5
Insurer noted that the explanation of benefits denying the charges related to this fee
review application was dated November 18, 2011, but the application was not filed
until December 23, 2011. In response, Dr. Mandel referenced the documentation
submitted to the Fee Review Office, which included Insurer’s explanation of benefits
(EOB) and the envelope containing the same, which bore a postmark of November
23, 2011. (Hearing Officer’s Finding of Fact No. 7.)
              Insurer presented the deposition testimony of Linda Lengle, RN, a
medical bill review repricing manager for a third party that processed bills for
Insurer.6 Lengle testified regarding the November 2011 EOB. She explained that the
original bills received from Dr. Mandel for the relevant dates of service were coded
01999, which was a code that applied to unlisted anesthesia, and were missing
required information specifying exactly what was done on the relevant treatment
dates. Lengle stated that, as a result, these bills were denied and not repriced. While


       5
         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), provides, in relevant part, that “[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.”

       6
         Counsel for Dr. Mandel did not attend the deposition. Counsel for Insurer noted at the
beginning of the deposition that counsel for Dr. Mandel was advised of the deposition two weeks
prior and, despite repeated attempts, he was unable to reach said counsel.



                                                3
Dr. Mandel’s fee review application included revised claim forms dated December
22, 2011, for the relevant treatment dates identifying the TMR therapy as CPT code
76498, Lengle testified that she did not believe that Dr. Mandel had ever resubmitted
these bills to Insurer. Lengle explained that the system used by her employer would
have indicated that duplicate bills were submitted, but she acknowledged that she did
not know if they were in fact resubmitted by Dr. Mandel. (Hearing Officer’s Finding
of Fact No. 8.)
             Ultimately, the Hearing Officer issued a decision and order granting in
part and denying in part Dr. Mandel’s fee review application number 321563. The
Hearing Officer concluded that Dr. Mandel’s December 23, 2011 fee review
application was timely filed, noting that the envelope containing the relevant EOB
was postmarked November 23, 2011, and, hence, Dr. Mandel could not have received
the same before November 24, 2011. The Hearing Officer also concluded that
Insurer had properly responded to Dr. Mandel’s billing by providing a written
explanation as to why it was denying, and not downcoding, the bills. Additionally,
the Hearing Officer concluded that reimbursement for the treatment dates
encompassed within each fee review application, with the exception of untimely
number 322391, was proper under CPT code 97032. Finally, the Hearing Officer
concluded that Dr. Mandel was estopped from arguing that any other CPT code was
applicable to TMR therapy based upon prior fee review hearing officer decisions.
             With respect to any purported resubmission of the relevant medical bills,
the Hearing Officer noted that “[a]s far as the undersigned knows, this new
billing/submission of December 12 [sic], 2011 has not been denied and is the
responsibility of carrier, payable as CPT Code #97032.” (Hearing Officer’s Finding
of Fact No. 11(e).) Dr. Mandel thereafter filed a petition for review with this Court.



                                           4
              On appeal,7 Dr. Mandel argues that the Hearing Officer erred in
concluding that the proper CPT code with respect to fee review application number
321563 was 97032. More specifically, Dr. Mandel argues that he should be entitled
to his actual charges because Insurer failed to strictly adhere to the downcoding
regulations or avail itself of other remedies under the Act following his resubmission
of the bills with CPT code 76498 in December 2011. We disagree.
              Section 306(f.1)(1)(i) of the Act, 77 P.S. §531(1)(i), requires employers
to provide payment for reasonable surgical and medical services rendered by
physicians or other health care providers to claimants entitled to workers’
compensation.      Section 306(f.1)(2) requires any provider who treats an injured
employee to file periodic reports with the employer on a form prescribed by the
Bureau of Workers’ Compensation (Bureau) which shall include, where pertinent,
history, diagnosis, treatment, prognosis, and physical findings. 77 P.S. §531(2).
Additionally, section 306(f.1)(3)(i)-(viii) caps a provider’s charge at 113% of the
applicable Medicare reimbursement rate and requires providers to use the appropriate
Medicare procedure codes to identify the provided treatment. 77 P.S. §531(3)(i)-
(viii).
              The Bureau has set forth specific procedures for the submission of
medical bills in its Medical Cost Containment Regulations (Regulations). 34 Pa.
Code §§127.1-127.755. A medical provider must submit requests for payment of



          7
         Our scope of review is limited to determining whether constitutional rights were violated,
an error of law was committed, or whether necessary findings of fact were supported by substantial
evidence. National Mutual Fire Insurance Co. v. Bureau of Workers’ Compensation Fee Review
Hearing Office, 981 A.2d 366, 368 (Pa. Cmwlth. 2009), appeal denied, 990 A.2d 731 (Pa. 2010).




                                                5
medical bills on Health Care Financing Administration (HCFA)8 Form 1500, the
UB92 Form (HCFA Form 1450), or any successor forms required by the HCFA for
submission of Medicare claims. 34 Pa. Code §127.201(a). In addition, the provider
must identify the treatment using the appropriate code under the Healthcare Common
Procedure Coding System (HCPCS)-HCFA Common Procedure Coding System. 34
Pa. Code §§127.3, 127.201(b). Employers and insurers are not required to pay for
treatment billed until a medical provider submits bills on one of the specified forms.
34 Pa. Code §127.202(a).          The Regulations mirror the Act’s requirement that
providers who treat injured employees submit periodic medical reports on a form
prescribed by the Bureau. 34 Pa. Code §127.203. Further, providers are required to
state their actual charges for the treatment rendered, and it is the insurer’s
responsibility to calculate the proper amount of payment for that treatment, which
may include the downcoding of a provider’s assigned treatment code. 34 Pa. Code
§§127.205, 127.207.
               In medical fee disputes, the burden is initially upon the provider to
establish that its application for fee review was timely filed. Pittsburgh Mercy Health
System v. Bureau of Workers’ Compensation, Fee Review Hearing Office (US Steel
Corporation), 980 A.2d 181, 184 (Pa. Cmwlth. 2009). Once a provider meets this
burden, the burden then shifts to the insurer to establish by a preponderance of the
evidence that it properly reimbursed the provider. 34 Pa. Code §127.259(f); Thomas
Jefferson University Hospital v. Bureau of Workers’ Compensation Medical Fee
Review Hearing Office, 794 A.2d 933, 935 (Pa. Cmwlth. 2002).
               As noted above, the Hearing Officer found that fee review application
number 321563 was timely filed and this finding is not disputed on appeal. Hence,

      8
          The HCFA is now known as the Centers for Medicare & Medicaid Services, or CMS.



                                              6
the burden shifted to Insurer to establish that it properly reimbursed Dr. Mandel. In
order to meet this burden, Insurer presented the testimony of Lengle, a medical bill
review repricing manager for a third party that processed bills for Insurer. Lengle
testified that the original bills submitted by Dr. Mandel identified the TMR therapy as
CPT code 01999, a code that applied to unlisted anesthesia, and were missing
required information specifying exactly what was done on the relevant treatment
dates.       As a result, Insurer denied these bills and Dr. Mandel received zero
reimbursement. Hence, Insurer provided sufficient testimony to meet its burden that
it properly reimbursed Dr. Mandel.
                As the Hearing Officer noted, Dr. Mandel did not present any evidence
to contradict Lengle’s testimony or to establish that CPT code 01999 was the proper
code for TMR therapy. See Hearing Officer’s Finding of Fact No. 9. While Dr.
Mandel currently argues that he was entitled to full reimbursement in light of his
resubmission of the relevant bills in December 2011 with CPT code 76498, he
presented no evidence that these bills were ever submitted to Insurer. At most, the
record reveals that these revised bills were simply attached to Dr. Mandel’s fee
review application as exhibits. In this regard, to the extent that the Hearing Officer
found that the resubmitted bills had not been denied and were the responsibility of
Insurer, we note that the record does not support such a finding. Consistent with the
Regulations, an insurer has no obligation to pay or downcode a bill until it is
submitted by the provider on the proper forms. 9 Furthermore, while Insurer’s denial

         9
          The Regulations with respect to downcoding require an insurer to notify a provider in
writing of the proposed changes and the reasons supporting the changes. 34 Pa. Code
§127.207(a)(1). Insurers also must give a provider 10 days to respond to the notice of proposed
changes as well as the opportunity to discuss the proposed changes and offer support for the original
coding decisions. 34 Pa. Code §127.207(a)(2), (b). Had the bills been properly resubmitted to
Insurer, and Insurer taken no further action, Dr. Mandel would have been entitled to reimbursement
(Footnote continued on next page…)

                                                 7
of the original bills in their entirety appears proper, Insurer did not appeal the Hearing
Officer’s decision directing that payment for the treatment dates included within fee
review application number 321563 be made under CPT code 97032.
              Because the record lacks evidence that Dr. Mandel resubmitted the
relevant bills to Insurer with CPT code 76498, Insurer was under no obligation to
issue an EOB regarding the same or otherwise initiate the downcoding process.
Hence, Dr. Mandel was not entitled to his actual charges for these bills.
              Next, Dr. Mandel contends that the Hearing Officer erred in concluding
that he was estopped from arguing that any CPT code other than 97032 was
applicable to the TMR therapy he provided to Claimant. We agree, but conclude that
such error was harmless.
              Dr. Mandel relies upon our previous decision in Walsh v. Bureau of
Workers’ Compensation Fee Review Hearing Office, 67 A.3d 117 (Pa. Cmwlth.
2013), for support. In Walsh, which also involved a dispute over charges for TMR
therapy, a hearing officer granted an insurer’s motion to dismiss multiple fee review
applications filed by multiple providers on the basis that the decisions from another
hearing officer, which resolved the identical downcoding issue in favor of the insurer
relating to this treatment, collaterally estopped the providers from challenging this
same downcoding in the future.             However, the hearing officer did so without
considering whether the insurer had properly complied with the downcoding


(continued…)

of his actual charges. See 34 Pa. Code §127.207(d) (an insurer’s failure to strictly comply with the
downcoding requirements will result in the resolution of an application for fee review in favor of a
provider); Liberty Mutual Insurance Co. v. Bureau of Workers’ Compensation, Fee Review Hearing
Office, 37 A.3d 1264 (Pa. Cmwlth.), appeal denied, 53 A.3d 51 (Pa. 2012) (an insurer’s failure to
follow the procedures for downcoding entitled the providers to their actual charges).



                                                 8
requirements in each case.             Ultimately, we held that section 127.207 of the
Regulations was clear in requiring an insurer’s mandatory compliance with the
downcoding requirements and that a demonstration of compliance must be made
before a hearing officer may address the merits of the downcoding. In other words,
we stated that “it was improper for the hearing officer to consider the application of
the doctrine of collateral estoppel before considering first whether Insurer complied
with the requirements of Section 127.207.” Id. at 123. Thus, we reversed the hearing
officer’s decision and remanded for a full de novo hearing.
               In the present case, however, Dr. Mandel stipulated before the Hearing
Officer that Insurer had properly downcoded the TMR therapy claims to CPT code
97032 in relation to fee review application numbers 321567, 321442, 321449,
321451, 321466, 321443, and 322482. Additionally, as noted above, fee review
application number 321563 did not involve a downcoding of the TMR therapy, but
instead involved a denial by Insurer, and there was no evidence that any revised bills
were ever submitted to Insurer. Hence, Walsh is distinguishable from the present
case and a remand is not warranted herein.
               Dr. Mandel correctly notes in his brief that administrative agency
decisions are not binding on this Court or even on the agency itself.10 Liberty Mutual

       10
           Dr. Mandel also correctly notes that the Hearing Officer did not address the elements for
collateral estoppel in his decision and order. The doctrine of collateral estoppel operates to preclude
the re-litigation of issues of fact or law determined in a prior proceeding. Mason v. Workmen’s
Compensation Appeal Board (Hilti Fastening Systems Corp.), 657 A.2d 1020, 1023 (Pa. Cmwlth.),
appeal denied, 668 A.2d 1140 (Pa. 1995). Collateral estoppel applies if: (1) the issue decided in the
prior case is identical to one presented in the later case; (2) there was a final judgment on the merits;
(3) the party against whom the plea is asserted was a party or in privity with a party in the prior
case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and
fair opportunity to actually litigate the issue in the prior proceeding; and (5) the determination in the
prior proceeding was essential to the judgment. Callowhill Center Associates, LLC v. Zoning Board
of Adjustment, 2 A.3d 802, 809 (Pa. Cmwlth. 2010), appeal denied, 20 A.3d 489 (Pa. 2011).



                                                   9
Insurance Co. v. Bureau of Workers’ Compensation, Fee Review Hearing Office, 37
A.3d 1264, 1270 (Pa. Cmwlth.), appeal denied, 53 A.3d 51 (Pa. 2012). Thus, the
Hearing Officer erred in concluding that prior hearing officer decisions served to
collaterally estop Dr. Mandel from challenging the proper coding for TMR therapy.
Nevertheless, given Dr. Mandel’s stipulation discussed above and the lack of any
downcoding by Insurer with respect to fee review application number 321563, we
conclude that such error was harmless.
            Accordingly, the order of the Hearing Officer is affirmed.



                                         ________________________________
                                         PATRICIA A. McCULLOUGH, Judge




                                         10
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Richard Mandel, M.D.,                 :
                 Petitioner           :
                                      :    No. 1126 C.D. 2015
            v.                        :
                                      :
Bureau of Workers’ Compensation       :
Fee Review Hearing Office (Penn       :
National Security Insurance Company), :
                   Respondent         :


                                   ORDER


            AND NOW, this 27th day of January, 2016, the order of the Bureau of
Workers’ Compensation Fee Review Hearing Officer, dated May 26, 2015, is
hereby affirmed.




                                          ________________________________
                                          PATRICIA A. McCULLOUGH, Judge
