INSURANCE – FINANCIAL RESPONSIBILITY LAW – MEDICAL BILLS – PEER REVIEW PROCESS

Pierchalski v. Mid-Century Ins. Co., 2021 U.S. Dist. LEXIS 118648 (June 25, 2021) Colville, Judge.
Plaintiffs cannot receive attorney’s fees under § 1798 when Mid-Century utilized the PRO process. That said, Plaintiffs argue that Mid-Century failed to conduct a valid peer review because Mid-Century withheld pertinent information from the PRO reviewers. Specifically, Plaintiffs argue that Dr. Pierchalski requested reconsideration of both PRO reports and provided Mid-Century with Dr. Franco’s narrative report, which was not made available to the reviewer. Br. in Opp. 7. Additionally, Plaintiffs argue that Dr. Pierchalski was not given the opportunity to discuss her reconsideration with the reviewers as required by 31 Pa. Code § 69.52(j). Id.
Even considering Plaintiffs’ arguments that Mid-Century did not conduct a valid peer review, the Court still finds that Plaintiffs are not entitled to attorney’s fees under § 1798. The courts in Doctor’s Choice and Turnpaugh are clear that if the PRO process is utilized, an insured is not entitled to attorney’s fees, whether or not the insurer conducts a proper peer review. See Doctor’s Choice, 128 A.3d at 1189 (finding that attorney’s fees could not be recovered pursuant to § 1797(b)(6) where the insurer timely challenges the reasonableness of treatment to a PRO, whether or not the PRO process was valid); Turnpaugh, 297 A.2d at 422 (finding that attorney’s fees could not be recovered pursuant to §§ 1716 and 1798 in the peer review process despite a finding that the insurer had unreasonably referred the matter to peer review). Therefore, it is of no consequence whether Mid-Century violated the peer review process. The sole fact that Mid-Century referred the matter to peer review means that attorney’s fees cannot be recovered. The Court, however, joins the Herd, Doctor’s Choice, and Turnpaugh courts in acknowledging the policy concerns at issue with this decision.
For these reasons, the Court will grant Mid-Century’s Partial Motion for Summary Judgment, to the extent that the Court finds that Plaintiffs may not recover attorneys’ fees.
The Court finds that Plaintiffs are not entitled to treble damages pursuant to §
1797(b)(4) for two reasons. First, treble damages are only available where the insurer has not challenged the reasonableness or necessity of medical treatment before a PRO. Here, as stated above when discussing attorney’s fees, Mid-Century challenged the 11 reasonableness of Dr. Pierchalski’s medical treatment before a PRO and, for that reason alone, treble damages are not available. See Doctor’s Choice, 128 A.3d at 1185.
Pursuant to § 1797(b)(4), treble damages are not available where an insurer utilizes the PRO process. Further, for the reasons stated above, even considering Plaintiffs’ arguments that Mid-Century did not conduct a valid peer review, the Court still finds that Plaintiffs are not entitled to treble damages pursuant § 1797(b)(4). See Doctor’s Choice, 128 A.3d at 1189; Turnpaugh, 297 A.2d at 422.
For these reasons, the Court will grant Mid-Century’s Partial Motion for Summary Judgment to the extent that the Court finds that Plaintiffs are not entitled to treble damages.
There remain disputed questions of material fact as to whether or not Mid-Century waived the three-year statute of limitations and as to whether Mid-Century should be stopped from arguing the three-year statute of limitations. Additionally, the Court has remaining questions as to whether Defendant can waive the statute of limitations based on a one-time payment, regardless of the letter, and as to what effect the letter has on the issue of waiver. The Court will invite further briefing on this issue and will discuss the opportunity for further briefing with the parties.
Mid-Century’s Partial Motion for Summary Judgment will be denied to the extent the Court finds that there remain genuine issues of material fact as to whether the three-year statute of limitations remains a viable defense. There are material facts as to whether Pierchalski was totally disabled prior to the 2017 accident. The reports of Dr. Franco present conflicting evidence as to whether Dr. Pierchalski was disabled prior to the 2017 accident.
Material issues of fact remain as to whether Mid-Century has paid the wrap around wage loss at issue and as to whether any additional medical and wage loss benefits should be paid by workers’ compensation and not Mid-Century. For this reason, Mid-Century’s Partial Motion for Summary Judgment is denied to the extent that the Court finds there remain genuine issues of material fact as to whether Dr. Pierchalski can recover additional benefits relating to the 2016 accident.