Opinion
No. 1023 C.D. 2012
12-04-2012
Brian Walsh, D.O., Petitioner v. Bureau of Workers' Compensation Fee Review Hearing Office (State Workers' Insurance Fund), Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Brian Walsh, D.O. (Petitioner) petitions for review of the order of the Workers' Compensation Office of Adjudication (Office) dismissing his fee review application as untimely pursuant to Section 306(f.1)(5) of the Workers' Compensation Act (Act). Because Petitioner did not actually receive notice until eight days before filing his appeal, we reverse the Office's determination and remand for a hearing on the merits.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §531(5). Section 306(f.1)(5) provides, in relevant part:
A provider who has submitted the reports and bills required by this section and who disputes the amount or timeliness of the payment from the employer or insurer 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 following the original billing date of treatment.
Following a February 16, 2009 work injury, workers' compensation claimant Sherri White (White) sought treatment with Petitioner on five different occasions in early 2009. On March 3, 2010, Petitioner submitted a bill in the amount of $15,690 for services provided from March 2009 through May 2009. On March 29, 2010, the State Workers' Insurance Fund issued a payment of $240 based upon its determination of the proper coding for the services provided by Petitioner, but the envelope in which the check was sent was postmarked June 15, 2010. (Reproduced Record [R.R.] at 12a-15a.) A letter detailing the downgrade of benefits dated June 16, 2010, was also sent to Petitioner.
On June 23, 2010, Petitioner filed an application for review seeking an adjudicatory review of the payment. The application was denied by the Department of Labor and Industry, Health Care Services Review Division, because it determined that Petitioner's application was untimely because it was not filed within 30 days of the payment of the reduced amount. Petitioner then filed an application for fee review which was dismissed by the hearing officer as untimely. This appeal followed.
Our scope of review is limited to determining whether there has been a violation of constitutional rights, whether errors of law were committed, and whether necessary findings of fact are supported by substantial evidence. Nationwide Mutual Fire Insurance Co. v. Bureau of Workers' Compensation Fee Review Hearing Office (Hospital of University of Pennsylvania), 981 A.2d 366, 368 n.5 (Pa. Cmwlth. 2009), appeal denied, 605 Pa. 703, 990 A.2d 731 (2010). --------
On appeal, Petitioner argues that his application was not untimely because he did not receive the check and final notice of a change of coding until the check was sent on June 15, 2010. Respondent, the State Workers' Insurance Fund, "do[es] not oppose the Petitioner's prayer for relief in this matter that the decision of the Hearing Officer be reversed on the untimeliness issue and remanded for a full trial on the merits." (Respondent's Letter dated October 22, 2012, at 1.) Nonetheless, because the matter goes to jurisdiction of the agency to act, we will address the merits of the appeal.
An application for fee review must be filed within 30 days of receipt of being notified of the downgraded payment. See 77 P.S. §531(5). Where it is alleged that the notice was not received or, in an instance such as this, received more than two months after being issued, application of the common law "mailbox rule" is appropriate. When a letter is written and signed in the normal course of business, evidence of the custom of the mailing creates a rebuttable presumption that the letter was, in fact, mailed. Sheehan v. Workmen's Compensation Appeal Board (Supermarkets General), 600 A.2d 633, 636 (Pa. Cmwlth. 1991), appeal denied, 530 Pa. 663, 609 A.2d 170 (1992).
Here, Petitioner's application was deemed untimely because the check from the mail carrier was dated March 29, 2010. However, the envelope which contained the check was postmarked June 15, 2010. (R.R. at 12a.) This sufficiently serves to rebut the presumption that the check and, therefore, notice of the change of coding, was received closer to the check's origination date. Since it is apparent that the check was not received until June 15, 2010, and the application for fee review was filed eight days later, the application was timely filed and the hearing officer's order dismissing it for untimeliness was improper.
Accordingly, we reverse the determination of the Office and remand for a hearing on the merits.
/s/_________
DAN PELLEGRINI, President Judge ORDER
AND NOW, this 4th day of December, 2012, the order of the Workers' Compensation Office of Adjudication, dated April 30, 2012, is reversed. This matter is remanded for a hearing on the merits.
Jurisdiction relinquished.
/s/_________
DAN PELLEGRINI, President Judge
77 P.S. §531(5).