Liberty Mut. Ins. v. WORKERS'COMPENSATION
37 A.3d 1264
| Pa. Commw. Ct. | 2012Background
- Liberty Mutual petitions for review of a fee review decision involving six consolidated fee petitions for TMR treatments by Kepko and Lindenbaum to Claimant Kraemer.
- Hearing Officer had initially denied reimbursement in five cases and awarded $38.76 in one; later consolidated hearing resulted in a total award of $16,143.77 plus interest.
- Treatments were billed at $2,898 per service date under CPT code 76498; insurer previously downcoded or denied as research/experimental or duplicative.
- Insurer later began using CPT 97032 for TMR and downcoded other dates to 97032 with various small payments after the hearing notices.
- Regulatory downcoding procedures require written notice, response opportunity, and strict adherence; noncompliance favored Providers when downcoding was improper.
- Court affirmed the Hearing Officer's rulings granting Providers the actual charges in cases where downcoding procedures were not strictly followed and denying only untimely or properly downcoded claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Burden of proof for documentation | Providers: burden on insurer to prove proper reimbursement; burden not on Providers. | Insurer: burden on providers to show documentation supporting charges. | Insurer did not bear burden; record supports Providers with documentation. |
| Appropriate coding and estoppel | Code choice for TMR not determinative; prior decisions not binding here. | Codes 97032/97035 argued; estoppel from prior similar matters. | Not binding; issue of proper downcoding is case-specific and not precluded here. |
| Noncompliance with downcoding regulations | Insurer failed to follow 34 Pa.Code § 127.207 procedures; cases favor Providers. | Insurer followed procedures or argued bases for downcoding apply. | Hearing Officer correctly awarded Providers their actual charges in four cases due to procedural noncompliance. |
| Reasonableness of payments when no Medicare mechanism exists | Providers entitled to actual charges; no reliable usual/ customary rate in absence of Medicare. | Insurer should cap payments at 80% or 113% rules where applicable. | Regulatory downcoding noncompliance prevented applying usual cap; Providers awarded actual charges. |
| Remand unnecessary | Remand would clarify codes/reimbursement rates. | Remand needed for additional findings. | Remand not necessary; award already resolved the issues. |
Key Cases Cited
- Yablon v. Bureau of Workers' Compensation Fee Review Hearing Office, 20 A.3d 600 (Pa.Cmwlth. 2011) (distinguishes downcoding timing and procedure in fee reviews)
- Nationwide Mutual Fire Insurance Co. v. Bureau of Workers' Compensation Fee Review Hearing Office, 981 A.2d 366 (Pa.Cmwlth. 2009) (scope of review for fee review proceedings)
- Thomas Jefferson University Hospital v. Bureau of Workers' Compensation Medical Fee Review Hearing Office, 794 A.2d 933 (Pa.Cmwlth. 2002) (provider burden in utilization review context)
- CVA, Inc. v. Workers' Compensation Appeal Board (Riley), 29 A.3d 1224 (Pa.Cmwlth. 2011) (allocation of burden in utilization review proceedings)
- Barringer v. State Employees' Retirement Board, 987 A.2d 163 (Pa.Cmwlth. 2009) (administrative agencies may follow or distinguish their own precedent)
- Callowhill Center Associates, LLC v. Zoning Board of Adjustment, 2 A.3d 802 (Pa.Cmwlth. 2010) (principles of collateral estoppel and cause for review)