67 A.3d 117
Pa. Commw. Ct.2013Background
- eleven consolidated petitions for review of fee review orders filed by Providers (nine physicians via East Coast TMR and WJO Inc.) seeking review of fee review decisions denying downcoding challenges for TMR treatments; downcoding was performed by Travelers Insurance and challenged in 61 fee review applications; the Fee Review Hearing Officer dismissed those applications, relying on collateral estoppel from prior Lengler decisions; Providers argued Regulation 34 Pa.Code § 127.207 requires strict compliance and precludes collateral estoppel absent compliance; Kepko held that code determination for TMR was not binding on review; the Commonwealth Court reverses and remands for a full de novo hearing to address compliance and potential collateral estoppel after compliance is established; the matter involves CPT/TMR coding disputes and regulatory compliance under the Bureau of Workers’ Compensation rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether collateral estoppel was proper before assessing compliance with §127.207. | Providers: compliance must be assessed first | Insurer: prior Lengler decisions control; estoppel applies | Collateral estoppel invalid pre-compliance; remand for compliance review |
| Whether the regulation requires strict compliance before downcoding and affects outcome. | Regulation mandates strict compliance; noncompliance favors providers | Regulation does not bar collateral estoppel if outcome same | Regulation requires compliance review; remand to determine compliance and potential estoppel |
| Whether the hearing officer erred in applying collateral estoppel at all. | Hearing officer should first determine compliance | Past determinations bind under collateral estoppel | Yes, error; remand for de novo hearing to address merits after compliance |
Key Cases Cited
- Liberty Mutual Ins. Co. v. Bureau of Workers’ Comp., Fee Review Hearing Office (Kepko, D.O.), 37 A.3d 1264 (Pa. Cmwlth. 2012) (collateral estoppel not binding on TMR code issue; preclusion not controlling)
- Legion Ins. Co. v. Bureau of Workers’ Comp., Fee Review Hearing Office, 42 A.3d 1151 (Pa. Cmwlth. 2011) (regulatory framework and review standards cited)
- City of Philadelphia v. Medical Fee Review Hearing Office (RJS Indus.), Til A.2d 356 (Pa.Cmwlth. 1999) (regulatory and fee review considerations cited)