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1033 C.D. 2017 – Filed April 11, 2018


By Jeffrey D. Snyder, Esquire

The Commonwealth Court, referring to the matter as an issue of first impression, framed the issue here as “… what constitutes ‘a significant and separately identifiable service performed in addition to the other procedure’ under Workers’ Compensation Medical Costs Containment Regulation 34 Pa. Code §127.105(e), for which a chiropractor is entitled to payment for an office visit in addition to his charges for the treatment provided at the same visit”.  The Commonwealth Court remanded the case to the Bureau of Fee Review Hearing Office on this mixed question of fact and law to determine whether the office visit charges in question were for routine examinations involving a known medical condition, change in medical condition, or other circumstances that required an examination and assessment above and beyond the usual examination and evaluation for the treatment performed on that date.

The Claimant sustained a work injury on February 28, 2005 and thereafter entered into a Compromise and Release Agreement that left medical expense open with the Employer thus obligated to pay reasonable and necessary medical expenses for the work injury, described as right shoulder partial thickness tear and superior labrum tear with post-operative scarring, rotator cuff inflammation and left shoulder overuse rotator cuff inflammation.

The Claimant received chiropractic treatment for shoulder and neck pain approximately three times a week.  The chiropractic billed Sedgwick $78.00 per visit for office visits on dates in which the Claimant was the recipient of chiropractic treatment that was billed.  Sedgwick denied payment for the offices visit charges, but paid Provider for other treatments that were provided on the subject dates.  The Provider filed a Fee Review.

The Bureau administratively determined that the Provider’s claim for the office visit charges were to be denied.  The Provider filed a Request for Hearing before a Hearing Officer.  The chiropractor argued that: “Each time I treat Claimant, I perform a physical exam, I take a history of his subjective complaints, identified the objective findings on my exam, assess his conditions and treatment recommendations, and give a plan”.  The chiropractor further asserted that these examinations were not included in the value of another procedure.

On July 5, 2017, the Hearing Officer issued a Decision ordering Sedgwick to pay all of the presented office visit charges.  The Hearing Officer recognized that payment for office visits on the same day that another procedure is performed is permitted only when the office visit represents a significant and separately identifiable service performed in addition to the other procedures.  The Commonwealth Court noted, however, that the Hearing Officer made no factual findings as to the nature of any of the examinations and evaluations for which an office visit charge was billed, and made no findings as to whether any of them were non-routine or involved new medical conditions, or evaluations for new or different treatments.  Sedgwick argued that §127.105 of the Medical Cost Containment Regulations prohibit payment of office visit charges for routine physical examinations and evaluations on the same day as other treatment is performed where there is no new medical condition and that all of Provider’s office visit charges were for routine examinations for the same medical conditions.  The Commonwealth Court cited to the Workers’ Compensation Act, as well as to Medicare procedure codes.  The Court noted that the burden was on Sedgwick to prove by a preponderance of the evidence that it fully paid Provider the amounts to which Provider was entitled, citing the 34 Pa. Code §127.259(f).  The Commonwealth Court observed that the meaning of the phrase “significant and separately identifiable service” performed in addition to the other procedures in §127.105(e) is a question of law, not an issue of fact, citing Commonwealth v. Kerstetter, 62 A.3d 1065, 1068, note 4 (Pa. Cmwlth. Ct., 2013),affirmed, 94 A.3d 991 (Pa. 2014).  The Court noted that the Medical Cost Containment Regulations do not define any of the terms at issue and that no Court in the Commonwealth has interpreted §127.105(e) as to the phrase “significant and separately identifiable service”. 

Interpreting the regulations, the Court noted that the rules of statutory construction apply to administrative regulations and that no words of a regulation are to be treated as mere surplusage.  Federal decisions and regulatory interpretations addressing the same issue may be considered as well.  Federal Medicare case law suggests that an examination or evaluation on the same date as another procedure does not constitute a “significant and separately identifiable service” unless it is above and beyond the usual evaluation performed in conjunction with that procedure, or is unrelated to the procedure that was performed on the same day, citing toUnited States v. Chen (USD Nevada No. 2:04 C.V. 00859, PMPPAL, filed May 30, 2006).

The Center for Medicare and Medicaid Services has stated with respect to chiropractors that chiropractors should not bill for an examination every time they treat a patient. MLN Matters No. SE0514, a CMS Publication.  The Commonwealth Court observed that Federal law shows a clear intent to make payment for same day examination the exception, not the rule. 

The take away here is that physical examinations billed separately for dates of treatment where other treatment/procedures are billed for the same day should be carefully reviewed in context to analyze whether payment for those examinations should be made or refused.


ConnorsO’Dell LLP

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