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Doctor's Choice Physical Med. & Rehab. Ctr., P.C. v. Travelers Personal Ins. Co.

Superior Court of Pennsylvania

May 2, 2014


Appeal from the Judgment Entered August 7, 2013. In the Court of Common Pleas of Dauphin County, Civil Division at No(s): 2008 CV 16214 CV. Before CLARK, J.

Robert F. Claraval, Harrisburg, for appellant.

Ernest F. Koschineg, III, Blue Bell, for appellee.



Page 814


Appellant, Doctor's Choice Physical Medicine & Rehabilitation Center, P.C. (Doctor's Choice), appeals from the August 7, 2013 judgment entered in its favor and against Appellee, Travelers Personal Insurance Company (Travelers), in the amount of $27,770.50 plus interest of 12 percent. Doctor's Choice challenges the trial court's failure to award statutory attorney fees. After careful review, we reverse the trial court's June 21, 2013 partial grant of Travelers' post-trial motions, vacate judgment, and remand for further proceedings consistent with this opinion.

The pertinent factual and procedural history of this case follows. On September 8, 2004, Angela LaSelva sustained personal injuries in a motor vehicle accident. At the time of the accident, Travelers insured LaSelva under an automobile insurance policy, which included first party medical benefits of $100,000.00. LaSelva received treatment for the injuries she incurred in the accident from various health care providers. Commencing on or around April 13, 2005, LaSelva treated with Dr. David Novatnak, a chiropractor with Doctor's Choice. Dr. Novatnak provided chiropractic treatment designed to alleviate LaSelva's ongoing pain.

In accordance with 75 Pa.C.S.A. § 1797(a), Doctor's Choice billed Travelers directly for the medical services it provided to LaSelva. Travelers submitted the bills from Doctor's Choice to IMX Medical Management Services (IMX) for peer review.[1] IMX designated Dr. Mark Cavallo, a chiropractor, to conduct the peer review.

On July 7, 2005, Dr. Cavallo submitted a report, citing his review of LaSelva's medical records, and self-selected medical literature.[2] In the report, Dr. Cavallo concluded that certain treatments provided by Dr. Novatnak, including " all surface EMG, range of motion, and/or muscle testing," as well as " passive therapy such as electrical stimulation, diathermy [and] massage," were unnecessary. N.T., 6/26/12, at 41, 99, Plaintiff's Exhibit #13 (Dr. Cavallo's Report at 4).

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Dr. Cavallo also concluded that, as of June 9, 2005, LaSelva " had achieved the point of maximum benefit" from the remaining types of treatments provided for LaSelva's care by Dr. Novatnak.[3] Id. at 5. Travelers subsequently refused payment of the bills for the treatments deemed unnecessary by Dr. Cavallo, including all treatment performed after June 9, 2005.

On November 20, 2008, Doctor's Choice filed a complaint against Travelers, averring Travelers improperly denied payment in violation of the Motor Vehicle Financial Responsibility Law (MVFRL)[4], specifically Sections 1716 and 1797. Doctor's Choice alleged in its complaint that the review conducted by Dr. Cavallo through IMX did not comport with the regulatory requirements for a peer review and therefore no peer review was performed. Complaint, 11/20/08, at 7-8, ¶ ¶ 17, 20-23. Doctor's Choice additionally averred the charges rejected by Travelers were for treatment of LaSelva that was reasonable and necessary. Id. at 6, ¶ ¶ 29-32. On June 26, 2012, the matter proceeded to a bench trial at which Dr. Novatnak and Dr. Cavallo testified.[5]

On December 13, 2012, the trial court issued an order, entering judgment in favor of Doctor's Choice in the amount of $82,287.06, " representing the unpaid medical expenses, plus statutory interest at 12% per annum, attorney's fees, and costs of suit." Trial Court Order, 12/13/12, at 1. In an opinion accompanying its order, the trial court specifically found that the report prepared by Dr. Cavallo was " invalid" as a peer review and that the disputed treatments provided by Dr. Novatnak were " reasonable and necessary." Trial Court Opinion, 12/13/12, at 5, 8.

On December 24, 2012, Travelers filed a post-trial motion for reconsideration, alleging, inter alia, that the trial court abused its discretion in awarding attorney fees. On June 21, 2013, the trial court entered an order denying in part and granting in part Travelers' post-trial motion. Specifically, relying on our Supreme Court's recent decision in Herd Chiropractic Clinic, P.C. v. State Farm Mut. Auto. Ins. Co., 64 A.3d 1058 (Pa. 2013), the trial court modified the verdict to $27,770.50, removing the attorney fee portion from its original verdict.

On July 1, 2013, Doctor's Choice filed a post-trial motion requesting the reinstatement of the attorney fee award, arguing the holding in Herd does not directly address the issue in the instant case. On

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August 1, 2013, the trial court denied Doctor's Choice's post-trial motion. Pursuant to a praecipe filed by Doctor's Choice, judgment was entered on August 7, 2013. Thereafter, Doctor's Choice filed a timely notice of appeal on August 28, 2013.[6]

On appeal, Doctor's Choice raises the following issues for our review.

1. Where an auto insurance carrier uses a records review, which is in fact an invalid peer review, to wrongfully deny payment of a health care provider's medical bills and the Court determines the care and bills were medically reasonable and necessary, does 75 Pa.C.S. § 1797(b)(4) & (6) and Levine v. Travelers[Prop. Cas. Ins. Co., 2013 PA Super. 129, 69 A.3d 671 (Pa. Super. 2013)] require an award of attorney fees to the provider?

2. Where an auto insurance carrier wrongfully sends a health care provider's bill to peer review, is the carrier responsible for attorney fees if the care is judicially determined to be reasonable and necessary?

3. Did the [t]rial [c]ourt commit an error of law when the [trial c]ourt failed to award attorney fees under 75 Pa.C.S. § 1716 or 75 Pa.C.S. § 1798 where the auto carrier violated the peer review procedure at § 1797, 31 Pa. Code § 69.52(a) and § 69.53(e)?

Doctor's Choice's Brief at 3-4 (footnotes omitted).[7]

The first issue raised by Doctor's Choice questions whether the trial court erred in declining to award attorney fees pursuant to 75 Pa.C.S.A. § 1797(b)(4) as part of its verdict against Travelers in favor of Doctor's Choice. The trial court's factual findings are not in dispute.[8] Accordingly, we are presented solely with an issue of statutory interpretation relative to the award of attorney fees.

Statutory interpretation presents a question of law subject to plenary review. The goal and purpose of statutory interpretation is to ascertain legislative intent and give it effect. 1 Pa.C.S.A. § 1921(a). In discerning that intent, our inquiry begins with the language of the statute itself. If the language of the statute unambiguously sets forth the legislative intent, this Court will apply that intent to the case at bar and not look beyond the statutory language to ascertain its meaning. 1 Pa.C.S. § 1921(b) (" When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." ). We will resort to the rules of statutory construction only when there is an ambiguity in the statutory language at issue.

Matharu v. Muir, 86 A.3d 250, 2014 PA Super 29, 2014 WL 688191, *11 (Pa. Super. 2014) ( en banc ) ...

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