814 A.2d 1275

Mark T. ALLEN, M.D., Petitioner, v. BUREAU OF WORKERS’ COMPENSATION (American Interstate Insurance Company), Respondent.

Commonwealth Court of Pennsylvania.

Submitted on Briefs Oct. 18, 2002.

Decided Jan. 8, 2003.

*1276Mark W. Voigt, Philadelphia, for petitioner.

Kacey C. Wiedt, Harrisburg, for respondent.

BEFORE: COLINS, President Judge, and SMITH-RIBNER, Judge, and FLAHERTY, Senior Judge.

OPINION BY

Senior Judge FLAHERTY.

Mark T. Allen, M.D. (Dr. Allen) petitions for review of the decision and order of the Department of Labor and Industry (Department), Bureau of Workers’ Compensation Fee Review Hearing Officer (hearing officer). The hearing officer denied and dismissed Dr. Allen’s Application for Fee Review after finding that the application was premature pursuant to Section 306(f.l)(5) of the Workers’ Compensation Act (Act)1 and 34 Pa.Code Section 127,255(3) which sets forth the Workers’ Compensation Medical Cost Containment Rules and Regulations regarding premature applications for fee review.2 The hearing officer’s decision notified Dr. Allen to appeal to the Commonwealth Court within 30 days from the mailing date of its decision.

Dr. Allen provided services to Michael Scott (Claimant) on various occasions between January 2, and March 2, 2001. Thereafter, on April 9, 2001, Dr. Allen *1277sought review with the Bureau of Workers’ Compensation (Bureau) concerning the timeliness of payment with regard to bills for services provided to Claimant on those dates. Dr. Allen’s application reflected an address of “1911 Arch Street, Lower Level, Philadelphia, PA 19103.”

The Bureau in an administrative decision dated June 11, 2001, granted Dr. Allen’s application concluding that the American Interstate Insurance Company (AIIC) had been “untimely in its payment/denial of the medical bill(s) submitted for foe review.” Bureau Administrative Decision, June 11, 2001, at 1. AIIC requested a hearing before the Department.

A hearing was scheduled for March (>, 2002. The Bureau mailed notice of the hearing to Dr. Allen at the address on his application. Dr. Allen contends that neither he nor his counsel of record received the notice. Dr. Allen did relocate his office prior to the time of the hearing but his counsel did not.

A hearing was conducted on March 6, 2002. Neither Dr. Allen nor his counsel were present at the hearing. Counsel for AIIC introduced documents into evidence and presented the testimony of Claimant. Claimant testified that AIIC had not received Dr. Allen’s bills prior to the filing of the application for fee review. AIIC then asked that Dr. Allen’s application for fee review be denied as premature.

The hearing officer accepted the unre-butted testimony as credible and concluded that because AIIC had not received Dr. Allen’s bills and records that the 30 day period for payment had not yet begun. The hearing officer denied and dismissed Dr. Allen’s application without prejudice as untimely and vacated the Bureau’s administrative decision approving Dr. Allen’s fee review application. Dr. Allen appealed to our Court.3

Dr. Allen contends that the hearing officer violated his constitutional rights and/or erred as a matter of law in denying his fee review application without affording him either proper notice of the hearing or an opportunity to be heard regarding his fee review petition.

Section 504 of Pennsylvania’s Administrative Agency Law, 2 Pa.C.S. § 504 states in pertinent part as follows:

No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of the hearing and an opportunity to be heard.

In Callahan v. Pennsylvania State Police, 494 Pa. 461, 431 A.2d 946 (1981), our Supreme Court determined that an administrative agency’s adjudication is invalid where it “failed to comply with the statutory requirements of notice of a hearing and an opportunity to be heard.” Id., at 465, 431 A.2d at 948. The notice of a hearing and an opportunity to be heard requirement is met when proper notice of the action is mailed to the party’s last known address. Higgins v. Public School Retirement System, 736 A.2d 745 (Pa.Cmwlth.1999).

In the present controversy, Dr. Allen contends that neither he nor his attorney received proper notice. A review of the record reveals that notice was sent to the address that Dr. Allen provided in his application for fee review. The record also reveals that Dr. Allen left that portion of the fee review application blank that asked *1278if Dr. Allen had a representative and who that representative was, as well as who the Bureau was to correspond with if Dr. Allen did not wish to be the contact.

Dr. Allen also contends that the Bureau violated Rule 3.5 and Rule 3.3 of the Pennsylvania Rules of Professional Conduct when it held the hearing without Dr. Allen or his counsel being present.4 Dr. Allen was properly notified of the hearing. The fact that Dr. Allen failed to attend the hearing does not make it ex parte.5 The Bureau’s obligation ended when it properly notified Dr. Allen of the hearing, as Dr. Allen did not have counsel of record. It was not the duty of the Bureau to speculate as to who Dr. Allen would most likely hire as his representative in this action.

Accordingly, we must affirm the hearing officer’s decision.

President Judge COLINS dissents.

ORDER

AND NOW, this 8th day of January 8, 2003 the order of the Bureau of Workers’ Compensation in the above captioned matter is affirmed.

Allen v. Bureau of Workers’ Compensation
814 A.2d 1275

Case Details

Name
Allen v. Bureau of Workers’ Compensation
Decision Date
Jan 8, 2003
Citations

814 A.2d 1275

Jurisdiction
Pennsylvania

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