          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Workers’ Compensation Security            :
Fund,                                     :
                      Petitioner          :
                                          :
                   v.                     :   No. 429 C.D. 2018
                                          :   SUBMITTED: August 3, 2018
Bureau of Workers’ Compensation,          :
Fee Review Hearing Office (Scomed         :
Supply, Inc.),                            :
                       Respondent         :


BEFORE:     HONORABLE ANNE E. COVEY, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION BY
SENIOR JUDGE LEADBETTER                                   FILED: October 5, 2018


            The Workers’ Compensation Security Fund (Insurer) appeals from the
order of the Bureau of Workers Compensation, Fee Review Hearing Office (Bureau)
awarding payment to Scomed Supply, Inc. (Provider) for medical supplies provided
to Tammy Hudson (Claimant). We affirm.
            The facts, set forth in the Hearing Officer’s decision, are not in dispute.
Claimant uses a medically-prescribed neuromuscular electrical stimulation (NMES)
device. Provider dispensed supplies for Claimant’s NMES device, pursuant to a
prescription by Claimant’s doctor. Provider dispensed, among other supplies, two
replacement lead wires on a bimonthly basis four times to Claimant from December
23, 2016 to June 23, 2017 and billed Insurer on the same basis. Insurer denied
payment for the lead wires, stating that Provider was only entitled to payment for
lead wires annually.
               After denial by Insurer, Provider filed applications for fee review for
the amount and timeliness of payment.1 Insurer denied the applications and Provider
appealed to the Medical Fee Review Hearing Office. Insurer presented evidence in
the form of a Medicare Advantage Policy statement to the effect that lead wires more
often than yearly would “rarely” be medically necessary (Reproduced Record at
125a). The Hearing Officer awarded payment for the four sets of lead wires, holding
as follows:
               The evidence offered suggests that replacement of lead
               wires may not be filled more often than once every 12
               months, unless documentation exists to demonstrate that
               replacement more often than once every 12 months is
               medically necessary. The scope of the Fee Review arena
               is limited to timeliness of payment and amount of
               payment. The medical necessity and reasonableness of
               treatment is determined through the Utilization Review
               Process. Therefore, the Fee Review arena lacks the
               jurisdiction to determine the reasonableness and necessity
               of treatment. Case law has established that it is the
               employer and its insurer that bear the burden of proof in a
               Utilization Review proceeding. As such, Provider does
               not bear the burden of proving lead wires dispensed more
               often than annually are medically necessary in order to be
               paid for the lead wires. Accordingly, in the absence of a
               Utilization Review Determination that replacement lead
               wires are medically necessary only once every twelve
               months, the lead wires are payable in their entirety.

(Hearing Officer’s Conclusion of Law at No. 7).
               Insurer filed a petition for review with this Court.2 Insurer argues that
the payment for lead wires supplied more often than annually is contrary to Medicare

    1
      Initially, more appeals were filed and more codes were at issue, but the only items still in
dispute are the lead wires.

    2
       This Court's review of a decision by a Bureau fee review hearing officer is limited to
determining 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


                                                2
policy, which the Insurer states preempts the issue of reasonableness and/or
necessity, which in turn removes that issue from the arena of utilization review and
puts it into the arena of medical fee review (Insurer’s Brief at 10-11). This suggested
preemption of the utilization review process is a novel argument, but not a winning
one.
                 To begin, Section 306(f.1)(3)(1) of the Workers’ Compensation Act
(Act),3 cited by Insurer as authority for the application of Medicare billing policy to
workers’ compensation billing, limits rates of reimbursement but does nothing to
preempt determinations of reasonableness and necessity of treatment under the
utilization review process. 77 P.S. § 531(3)(1). Further, the Act and regulations
have not “removed” the issue of reasonableness and necessity from the utilization
review process, which is not available to Provider.                       Section 306(f.1)(6)(i)
specifically provides in relevant part as follows:
                 The reasonableness or necessity of all treatment provided
                 by a health care provider under this act may be subject to
                 prospective, concurrent or retrospective utilization review
                 at the request of an employe, employer or insurer.

77 P.S. § 531(6)(i) (emphasis supplied). Thus, between the parties, the remedy of
seeking utilization review belongs to Insurer, and not Provider. Insurer,
acknowledging the unavailability of the utilization review process to Provider,
suggests that Provider “could have asked the Claimant to file a prospective
utilization review” before dispensing the lead wires (Insurer’s Brief at 12).
However, this ignores that in this case it is Insurer, and not Provider or Claimant,



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). Based on the issue raised, the scope of our review
is limited to determining whether there was an error of law, a question over which we exercise
plenary review.

    3
        Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531(3)(i).

                                                 3
who is challenging the reasonableness and necessity of the lead wire supply
schedule.
             The fee review process for Provider to dispute the amount and
timeliness of payment is set forth by Section 306(f.1)(5) of the Act, 77 P.S. § 531(5),
which is tolled if the insurer disputes the reasonableness and necessity of the
treatment under the utilization review process. Id. The fee review process
“presupposes that liability has been established,” Nickel v. Worker's Compensation
Appeal Board (Agway Agronomy), 959 A.2d 498, 503 (Pa. Cmwlth. 2008), and is
“not designed to encompass … an inquiry into the insurer’s reasons for denying
liability,” Crozer Chester Medical Center v. Department of Labor and Industry,
Bureau of Workers' Compensation, 22 A.3d 189, 197 n.8 (Pa. 2011).
             Insurer argues that the Hearing Officer’s conclusion that she lacked
jurisdiction to determine reasonableness and necessity required that she dismiss the
applications for fee review, citing Selective Insurance Company of America v.
Bureau of Workers’ Compensation Fee Review Hearing Office (Physical Therapy
Institute), 86 A.3d 300 (Pa. Cmwlth. 2014). However, Selective Insurance involved
the unrelated issue of whether a physical therapy facility was a “provider” (i.e.,
“whether [it] had provided therapy treatment”) for purposes of filing a fee review
petition, which this Court ruled must be determined by a workers’ compensation
judge; reasonableness and necessity were not at issue. See id. at 304-05. In the
instant case, Insurer’s remedy would have been through the utilization review
process, not as a defense in the fee review process.

             For the above reasons, we affirm.


                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Senior Judge


                                          4
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Workers' Compensation Security         :
Fund,                                  :
                       Petitioner      :
                                       :
                 v.                    :   No. 429 C.D. 2018
                                       :
Bureau of Workers' Compensation,       :
Fee Review Hearing Office (Scomed      :
Supply, Inc.),                         :
                       Respondent      :


                                    ORDER


           AND NOW, this 5th day of October, 2018, the order of the Bureau of
Workers’ Compensation, Fee Review Hearing Office is AFFIRMED.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Senior Judge
