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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Temple University Hospital,
:

Petitioner

:

:

v.

: No. 1327 C.D. 2004

: Submitted: December 10, 2004
Pennsylvania Department of Labor and :
Industry, Bureau of Workers'
:
Compensation, Fee Review Hearing :
Office and American Protection
:
Insurance Company,

:

Respondents

:
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE
JIM
FLAHERTY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE FLAHERTY

FILED: February 9, 2005

Temple University Hospital (Provider) petitions for review from an
order of the hearing officer of the Department of Labor and Industry, Bureau of
Workers' Compensation (Bureau) Fee Review Hearing Office, which determined
that Provider failed to timely file its fee dispute application in accordance with
Section 306(f.1)(5) of the Workers' Compensation Act (Act).1 We affirm.

Walter Michaelczyk (Claimant) an employee of Mike Spano & Sons
(Employer) was admitted to Provider's facility on December 19, 2000 for the
treatment of work-related burns and remained there until January 8, 2001.

1 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 531(5).

On May 3, 2001, Provider submitted a bill for services provided to
Claimant to Kemper Insurance Company (Kemper) in the amount of $106,119.81.
Kemper issued checks to Provider on May 7, 2001 and October 26, 2001 in the
amounts of $20,190.69 and $13,965.65 respectively. Along with the checks,
Kemper sent to Provider on each occasion an audit of medical charges. These
audit forms listed Claimant's name, his employer and also listed the carrier as
American Protection Agency (American). The audit forms also explained
Kemper's review of the charges and notification of the amount determined to be
reimbursable. The audit forms directed that all future bills for the Claimant be sent
to Kemper and listed its address.

Nearly a year after it initially sent a bill to Kemper, Provider, on May
8, 2002, submitted a bill to American for services provided to Claimant, for the
amount not paid by Kemper, totaling $71,963.47. American did not respond to the
request. Thereafter, on July 15, 2002, Provider filed an application for fee review
with the Bureau pursuant to Section 306(f.1) of the Act, requesting review of the
amount and timeliness of payment for medical services with regard to Claimant.
On the application, Provider listed American as the insurer.

The Bureau issued a decision on December 4, 2002, denying
Provider's application finding that it failed to file the application within the time
limits prescribed by Section 306(f.1)(5) of the Act because it failed to file an
application for fee review within 90 days of the billing date. Provider contested
the decision and filed a request for a de novo hearing with the Bureau's Fee
Review Hearing Office contending that its application was timely filed.

The hearing officer determined that, in accordance with Section
306(f.1)(5) of the Act, Provider had at most 90 days from the date it originally
2

submitted its bill to the insurance company to challenge the amount or timing of
the payment. Here, Provider originally billed Kemper on May 3, 2001 for services
rendered to Claimant. Thus, Provider had 90 days, or until August 2, 2001, to
challenge the amount or timeliness of the payments via an application for fee
review. However, Provider did not file its application for fee review until July 15,
2002, after American failed to pay the bill Provider had submitted to American on
May 8, 2002. Because Provider waited until May 8, 2002 to file its application for
fee review, the hearing officer determined that it was untimely and denied and
dismissed the application. This appeal followed.2

On appeal, Provider argues that its application for fee review was
timely, arguing that the 90 days within which to file an application for fee review
began on May 8, 2002, when Provider sent American, the responsible insurer, a
bill for Claimant's services. Provider claims that, inasmuch as Kemper was not the
responsible insurer, Provider, having originally submitted a bill to Kemper on May
7, 2001, did not start the 90 day period referenced in Section 306(f.1)(5) of the
Act.3 We disagree.

Section 306(f.1)(5) of the Act governs the initiation of fee disputes
and states that a provider who has submitted reports and a bill to an employer or
insurer and disputes the amount of payment rendered or the timeliness of the
payment "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

2 Our review is limited to determining whether constitutional rights were violated, an
error of law committed and whether the necessary findings are supported by substantial
evidence. Harburg Medical Sales Company v. Bureau of Workers' Compensation (PMA
Insurance Company), 784 A.2d 866 (Pa. Cmwlth. 2001).
3 The hearing examiner made no findings with respect to the relationship between
Kemper and American.
3

following the original billing date of treatment." The medical cost containment
regulations provided by the Department state that the application shall be filed no
more than 30 days following notification of a disputed treatment or ninety days
following the original billing date of the treatment, which ever is later. 34 Pa.
Code § 127.252(a). The provider has 90 days from the original billing date to file
a petition for fee review. Thomas Jefferson University Hospital v. Bureau of
Workers' Compensation Medical Fee Review Hearing Office, 794 A.2d 933 (Pa.
Cmwlth. 2002).

Both the Act and the Code refer to "the original billing date" of the
treatment. The hearing officer concluded that the original billing date was May 3,
2001. Provider argues, however, that the 90 day statute of limitations did not begin
to run until May 8, 2002, when it sent a bill to the insurer it claims was actually
responsible for paying the claim, American.

Here, Kemper made payment to Provider after it was billed for
services provided to Claimant. The audit forms sent by Kemper with the checks
requested that further inquiries be sent to Kemper but also listed the insurance
carrier as American and also provided its address. If Provider had a dispute as to
the amount or timeliness of the payment, as it did here, it was required to file a
petition within 90 days of the original billing date. For Provider to argue that the
time period did not begin to run until it sent American a bill ignores the fact that
payment was in fact made to and accepted by Provider and, in accordance with the
Act, if it had a dispute as to the amount paid, it had 90 days after submission of the
bill to file a petition.

Moreover, this is not a case where the insurer was not known to
Provider. The audit forms sent by Kemper stated that the insurer was American.
4

The forms further provided that all additional billing was to be sent to Kemper and
Kemper, in fact, was the party who sent payment to Provider, which payment was
accepted by Provider.

In accordance with the above, the decision of the Bureau's fee review
hearing officer is affirmed.

JIM FLAHERTY, Senior Judge
5

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Temple University Hospital,
:

Petitioner

:

:

v.

: No. 1327 C.D. 2004

:
Pennsylvania Department of Labor and :
Industry, Bureau of Workers'
:
Compensation, Fee Review Hearing :
Office and American Protection
:
Insurance Company,

:

Respondents

:

O R D E R

Now, February 9, 2005, the decision of the Bureau's fee review
hearing officer, in the above-captioned matter, is affirmed.

JIM FLAHERTY, Senior Judge