On the Pulse…Marshall Dennehey Is Happy to Celebrate Our Recent Appellate Victories*

In a workers’ compensation Fee Review appeal, Audrey Copeland (King of Prussia, PA) convinced the Commonwealth Court to create a new standard for review as to what constitutes “a significant and separately identifiable service performed in addition to another procedure,” which, according to 34 Pa. Code § 127.105(e), are the only “same day” office visits that can be billed separately and are not included in the value of the procedure. The provider/chiropractor argued the “same day” office visits he billed separately were not included in the value of the code for the service performed that day. The provider/chiropractor submitted an affidavit and office notes, which the Hearing Officer credited, ordering payment. The Commonwealth Court stated that the issue of what constitutes “a significant and separately identifiable service” is not defined in the Medicare Cost Containment Regulations and has not been interpreted by any court in this Commonwealth. The court looked to materials, including a CMS “MLN Matters” publication, which we brought to their attention. The court concluded that an examination involving no new medical condition, change in medical condition, or other circumstances that require an examination and assessment above and beyond the usual examination or evaluation for the treatment performed on the same date does not constitute “a significant and separately identifiable service” for which a chiropractor must be paid under Section 105(e). Therefore, the court remanded for the Hearing Officer to determine whether any of these circumstances existed. Sedgwick Claims Management Services, Inc. v. Bureau of Workers Compensation, Fee Review Hearing Office (Piszel and Bucks County Pain Center), 185 A.3d 429 (Pa.Cmwlth. April 11, 2018).

Audrey also obtained the Superior Court’s affirmance of a trial court order denying the plaintiff’s motion to invalidate the settlement of the case in which the plaintiff demanded payment but then refused to sign the settlement agreement. The court determined the settlement was valid as the plaintiff himself had agreed to the settlement on the open record. Because there was a valid settlement agreement, the trial court did not err by refusing to schedule a jury trial. Hatchigian v. Carrier Corporation and Peirce-Phelps, Inc., 2018 Pa.Super. Unpub. LEXIS 1665 (Pa.Super. May 21, 2018).

John Hare and Shane Haselbarth (Philadelphia, PA), who were retained as appellate counsel shortly before trial, obtained a victory in the Pennsylvania Superior Court, which vacated a $39 million judgment against their client. ​While driving our client’s truck, an employee struck a car from behind that had stopped in the middle of the road after its hood flew open. The collision injured three members of a family and killed a six-year-old child. The Superior Court vacated the judgment and remanded for a new trial on the basis that the Pittsburgh trial judge had improperly granted summary judgment to several vehicle repair shops and to the decedent’s father, all of whom knew of but failed to repair the condition that made the car’s hood fly open.

*Prior Results Do Not Guarantee a Similar Outcome

_{Defense Digest, Vol. 24, No. 3, September 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}