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Title: 

453-04-5193-m4

Date: 

December 22, 2004

Type: 

Medical Fees

453-04-5193-m4

DECISION AND ORDER

ACIG Insurance Company (Carrier) has challenged a decision of the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC/Commission) determining that reimbursement to King Chiropractic (Provider) for designated doctor’s examinations provided to ___ (Claimant) on November 8, 2002, and on April 4, 2003, was fair and reasonable. This decision agrees with that of the MRD, concluding that Provider is entitled to reimbursement, since the amount in dispute is fair and reasonable for the services at issue.

I. JURISDICTION, NOTICE, AND HEARING

ALJ Penny Wilkov convened a hearing in this case on October 13, 2004, at the State Office of Administrative Hearings, Austin, Texas. Provider was represented by Kelsie McQuiston King who appeared by telephone. Carrier was represented by Attorney David L. Swanson. Both parties presented evidence and argument. The record was reopened to include the submission of additional briefing and response and closed on November 5, 2004. The parties did not contest notice or jurisdiction, which are addressed in the Findings of Fact and Conclusions of Law.

II. DISCUSSION

Background

Claimant sustained a compensable injury on ___, when he pulled on a bucket weighing 50-60 pounds and felt sharp pain in his upper back.

On March 29, 2002, Claimant was notified that Provider was selected by TWCC as the Designated doctor and an examination was scheduled with Dr. Kelsie King. After the examination, Dr. King submitted a written report dated April 15, 2002, and billed Carrier for the services which were reimbursed and not considered by the MRD, and therefore, is not addressed in this decision.

A second examination was performed on November 8, 2002, by Dr. King, who submitted a report and billed Carrier for the services. Based on the medical records, Dr. King examined two specific areas, the spine and wrists, stating that the wrist injury evolved from the spinal injury.[1] She then submitted to Carrier a bill for $750.00, including $300.00 as the base fee, $300.00 for the first

area examined, the spine, and $150.00 for the second area examined, the wrists. Carrier paid $600.00 for this examination stating that the wrists were not compensable. The MRD agreed and recommended reimbursement of $600.00, including the $300.00 base fee and $300.00 for examination of one body area only.

A third examination was performed on April 4, 2003, by Dr. King, who submitted a report and billed Carrier $850.00, including $400.00 as the base fee since it was two years after the injury, $300.00 for the first area examined, the spine, and $150.00 for the second area examined, the wrists. Carrier denied the entire claim for this examination. The MRD disagreed and recommended reimbursement of $700.00, including payment of the $400.00 base fee and $300.00 for examination of one body area only.

Therefore, the dispute involves whether there should be reimbursement for the designated doctor examinations conducted on November 8, 2002 and April 4, 2003, denied by Carrier using denial code F.[2] The basis for the denial by Carrier was that Provider did not assign an impairment rating for the compensable body part and condition at issue, and used the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (1993), rather than the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Third Edition (1991)(“AMA Guide”).

Applicable Law

The Commission has the authority to appoint a designated doctor to recommend a resolution of a dispute as to the medical condition of an injured employee. Tex. Lab. Code Ann.§ 401.011(15). Upon request of Carrier or an employee, the Commission shall order a medical examination by the designated doctor to resolve any question about the impairment caused by the compensable injury or the attainment of maximum medical improvement (MMI). Tex. Lab. Code Ann.§ 408.0041. The Commission is also given broad authority to adopt rules necessary to implement and enforce statutory provisions and procedures. Tex. Lab. Code Ann.§ 402.061. The treating doctor and the Carrier are both responsible for sending to the designated doctor all of the Claimant’s medical records relating to the issue to be evaluated in their possession. Tex. Lab. Code Ann.§ 408.0041(b). Pursuant to this authority, the Commission is required to issue an order appointing a designated doctor, explaining the purpose of the examination and requiring the treating doctor and Carrier to forward all medical records to the designated doctor. 28 Tex. Admin. Code § 130.5. The treating doctor and Carrier may also send the designated doctor an analysis of the medical condition and functional abilities, including supporting information and medical records. 28 Tex. Admin. Code § 130.5(3)(B). However, to avoid undue influence, communication with the designated doctor regarding medical condition or history may be made only through Commission staff after the examination is completed. 28 Tex. Admin. Code § 130.5(4)(B). If either party requires clarification concerning the report of the designated doctor, the party shall file a request for clarification with the Commission. 28 Tex. Admin. Code § 130.5(f).

Reimbursement for medical services using guidelines must be fair and reasonable and designed to ensure the quality of medical care and to achieve effective medical cost control. Tex.

Lab. Code Ann.§ 413.011(d). Fair and reasonable reimbursement is defined as reimbursement that is the lesser of the maximum allowable reimbursement (MAR) established in a Commission guideline, or the provider’s usual and customary charge, or an amount determined when there is no fee guideline. 28 Tex. Admin. Code §133.1(8). The commission has adopted guidelines concerning MMI and Impairment Rating (IR) examinations by a designated doctor. 28 Tex. Admin. Code §134.202(e)(6). The reimbursement for the MMI examination includes examination, review of records, reports, responding to requests for clarification, and all tests. 28 Tex. Admin. Code § 134.202 (e)(6)(A).[3]

  1. Evidence and Argument
  2. Carrier

Carrier argues that there should be no reimbursement for the designated doctor examinations of November 8, 2002 and April 4, 2003, given that the designated doctor’s IR and MMI examination did not address Claimant’s compensable injury. Carrier relies on a TWCC Contested Case Hearing Decision and Order entered on September 21, 2001,[4] which contained findings of fact on the compensability of Claimant’s injury, determining that the cervical region injury was not a compensable condition but the thoracic region injury was compensable.[5] Carrier argues that none of the three examinations performed by Provider addressed the compensable injury. Carrier points to the first examination by Dr. King on April 15, 2002, which assigns an impairment rating of 14% for the left median neuropathy, a cervical-related injury of the upper extremity and neck, without addressing the compensable thoracic region injury. An identical report was issued on November 8, 2002, with a duplicate source of impairment and impairment rating. On April 4, 2003, the examination and subsequent report identified the source of impairment as cervical-related, again without mention of the impairment attributable to the thoracic region injury. Carrier does not agree that reimbursement for examinations on November 8, 2002, and April 4, 2003, that did not address the compensable injury is fair and reasonable.

Carrier pointed to the TWCC-21 form that they filed with the Commission on April 22, 2002, asking for clarification, by stating that the “(designated doctor’s) report is based on cervical; per CCH, compensable body part is thoracic . . . and asks that TWCC get clarification from DD regarding appropriate rating for thoracic.”[6]

Moreover, Carrier argues that since the designated doctor applied an incorrect AMA Guide in determining MMI, the Carrier should not have to reimburse for the November 8, 2002, and April 4, 2003, examinations using the Fourth Edition AMA Guides, although the latter examination was revised to include the Third Edition AMA Guide. Lastly, Carrier challenges whether an examination even occurred on November 8, 2002, since the report is identical, including typographical errors, to the report made for the first designated doctor examination on April 15, 2002.

Provider

Provider testified that on April 15, 2002, in the capacity of the Commission’s designated doctor, she initially examined Claimant and prepared a report that assigned an IR of 14% to Claimant using the AMA Guide, Fourth Edition. According to Provider, she was not made aware by the Commission or Carrier that there was any compensability issue and made her decision based on the supplied medical records, including a neurological consultation report from Richard A. Sawyers, M.D. In the report, Dr. Sawyers noted that the cervical region was the area of chief complaint, stating “MRI of the cervical area is clearly abnormal with two-level disc disease . . . (and) C 5-6 and C 6-7 both show herniated disc.”[7] Provider testified that, as the designated doctor, she had to determine the medical condition and functionality and since she was not provided with a copy of the Contested Case Hearing Decision and Order, she was not made aware by Carrier, the Commission, or the treating doctor of any existing compensability issue. Therefore, according to Dr. King, she based all three examinations on the medical records that she had before her concerning Claimant’s injuries.

As to the controversial use of the AMA Guides, Provider pointed to the letter she received on October 31, 2002, from the Commission concerning the scheduled November 8, 2002 examination, which stated, “(t)o determine the existence and degree of the employee’s impairment, you must use the -Guides to the Evaluation of Permanent Impairment’ Fourth Edition . . . “[8] Provider testified that she was aware that the Third Edition, AMA Guide, would have been more appropriate since the certified MMI date fell before October 1, 2001,[9] but after verifying with TWCC, she completed the report using the Fourth Edition as instructed.[10] Similarly, the letter she received on March 13, 2003, from TWCC concerning the scheduled April 4, 2003 examination, also stated, “(t)o determine the existence and degree of the employee’s impairment, you must use the Guides to the Evaluation of Permanent Impairment’ Fourth Edition . . . “[11] She testified that she did not receive notice to use the AMA Guide, Third Edition, until August 25, 2003, after the dates of disputed services, notifying her that “(t)he commission needs for you to assign a whole body impairment rating for the thoracic spine

only utilizing the AMA third edition of the guides.”[12] The Commission asked her to make the necessary amendments to her report. On August 28, 2003, she prepared a report assigning Claimant a 0% impairment based on the thoracic spine injury using the Third Edition AMA Guides.[13]

Lastly, Provider states that the identical reports of April 15, 2002, and November 8, 2002, were simply due to the lack of change in Claimant’s condition but that Dr. King traveled to from Houston to Victoria to examine Claimant.

III. ANALYSIS

Carrier bears the burden of proof that reimbursement for the disputed services rendered on November 8, 2002, and on April 4, 2003, as recommended by the MRD, would not be fair and reasonable. The central controversy in this case resolves around whether the designated doctor has the obligation, pursuant to statute or rule, to ascertain the legal status of the compensability of an injury and to apply proper AMA guides. The ALJ believes that the designated doctor may, instead, rely on the completeness of the records, including any notification or clarification from the Commission on the issue of compensability or the proper AMA Guides to apply in the examination. The testimony and exhibits established that a Decision and Order was rendered by a Commission Hearing Officer on September 21, 2001 concerning compensability. Subsequently, examinations occurred on April 15, 2002, November 8, 2002, and April 4, 2003, with the compensable body part, the thoracic region, not addressed in any report by Provider in assigning an MMI or IR rating. Although Carrier sent the Commission an appropriate form in April 2002 to request clarification of the assessment of MMI, it was not shown to have been received by Provider. Instead, the only evidence produced by either party that Provider was notified directly was the Commission letter of August 25, 2003, notifying Provider that “(t)he commission needs for you to assign a whole body impairment rating for the thoracic spine only utilizing the AMA third edition of the guides.” This letter was received after the dates of disputed services on November 8, 2002, and on April 4, 2003. Similarly, the evidence supports that the Commission repeatedly informed the designated doctor that she was to use the Fourth Edition, AMA Guides. Although Dr. King testified that Claimant had a certified MMI date that fell before October 15, 2001, which would have made the Third Edition AMA Guides more appropriate, she used the AMA Guide as instructed by the Commission. Again, the evidence established that no contradicting instructions were remitted to Provider until after the disputed services were rendered.

An analysis of the appropriate statute and rules also supports the decision that the designated doctor does not bear any obligation to seek out any medical records.[14] Although, as Carrier points out, Carrier was prohibited from communicating directly with the designated doctor, and had to instead rely on Commission staff, Carrier was in a better position to insure that the clarification request was remitted to the designated doctor rather than to withhold payment for a request the

evidence shows was never received until after the disputed services.

Therefore, in conclusion, Provider is entitled to reimbursement for the examinations on November 8, 2002, and on April 4, 2003, since the amount is fair and reasonable for the services at issue.

IV. FINDINGS OF FACT

  1. ___ (Claimant) sustained a compensable injury on ___, when he pulled on a bucket weighing 50-60 pounds and felt sharp pain in his upper back.
  2. On March 29, 2002, Claimant was notified that King Chiropractic (Provider) was selected by the Texas Workers’ Compensation Commission (TWCC/ Commission) as the designated doctor and an examination was scheduled with Dr. Kelsie King.
  3. On April 15, 2002, Claimant was examined by Provider, who submitted a written report and billed ACIG Insurance Company (Carrier) for the services, which were fully reimbursed.
  4. On November 8, 2002, Claimant was examined by Provider, who submitted a report and billed Carrier $750.00 for the services, including $300.00 as the base fee, $300.00 for the first area examined, and $150.00 for the second area examined.
  5. On April 4, 2003, Dr. King examined Claimant, submitted a report, and billed Carrier $850.00, including $400.00 as the base fee, $300.00 for the first area examined, and $150.00 for the second area examined.
  6. Carrier reimbursed Provider $600.00 for the examination noted in Finding of Fact No. 5, and did not reimburse Provider for the examination noted in Finding of Fact No. 6.
  7. Petitioner subsequently sought medical dispute resolution before the Texas Workers’ Compensation Commission (“Commission”).
  8. On March 12, 2004, the Commission’s Medical Review Division (“MRD”) issued a decision determining that the examination noted in Finding of Fact No. 4, was reimbursable at $600.00, including $300.00 as the base fee and $300.00 for the first area examined and no additional reimbursement was recommended.
  9. The MRD also issued a decision determining that the examination noted in Finding of Fact No. 5, was reimbursable at $700.00, including $400.00 as the base fee and $300.00 for the first area examined and additional reimbursement was recommended.
  10. Carrier made a timely request for review of the MRD decision before the State Office of Administrative Hearings (“SOAH”).
  11. After proper notice, a hearing in this action was convened before SOAH on October 13, 2004, in Austin, Texas. Provider was represented by Kelsie McQuiston King who appeared by telephone. Carrier was represented by Attorney David L. Swanson. The record was
  12. reopened to include the submission of additional briefing and response and closed on November 5, 2004.
  13. The Commission’s Medical Fee Guideline (“MFG”), 28 Tex. Admin. Code § 134.202 (e)(6), includes Maximum Medical Improvement (MMI) and Impairment Rating (IR) examinations by a designated doctor and includes examination, review of records, reports, responding to requests for clarification, and all tests.
  14. Provider was not informed by the Commission or Carrier that there was any compensability issue until after the examinations noted in Findings of Fact Nos. 3, 4, and 5, and she had assigned Maximum Medical Improvement and an Impairment Rating based on the supplied medical records.
  15. Provider was not informed by the Commission or Carrier that there was any issue concerning the use of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (1993), rather than the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Third Edition, (AMA Guide) until after the examinations noted in Findings of Fact Nos. 3, 4, and 5.
  16. Provider did not receive notice to use the AMA Guide, Third Edition, until August 25, 2003, after the examinations noted in Findings of Fact Nos. 3, 4, and 5, notifying her that the Commission requests that Provider assign a whole body impairment rating for the thoracic spine only utilizing the AMA Third Edition of the guides.
  17. Provider can rely on the completeness of the records, including any notification or clarification from the Commission on the issue of compensability or the proper AMA Guides to apply in the examinations.
  18. Provider is entitled to reimbursement for the examination noted in Finding of Fact No. 4, as reimbursement is fair and reasonable.
  19. Provider is entitled to reimbursement for the examination noted in Finding of Fact No. 5, as reimbursement is fair and reasonable.

V. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issue presented pursuant to the Texas Workers’ Compensation Act (“the Act”), Tex. Lab. Code Ann. §413.031.
  2. The State Office of Administrative Hearings has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a final decision and order, pursuant to §§ 402.073(b) and 413.031(k) of the Act and Tex. Gov’t Code Ann., Ch. 2003.
  3. The hearing was conducted pursuant to the Administrative Procedure Act, Tex. Gov’t Code Ann. ch. 2001 and the Commission’s rules, 28 Tex. Admin. Code (TAC) § 133.305(g) and §§ 148.001-148.028.
  4. Adequate and timely notice of the hearing was provided in accordance with Tex. Gov’t Code Ann.. §§ 2001.051 and 2001.052. Carrier, the party seeking relief, bore the burden of proof in this case, pursuant to 28 TAC § 148.21(h).
  5. Based upon the foregoing Findings of Fact, Carrier did not appropriately deny “fair and reasonable” reimbursement for the designated doctor examination, in accordance with § 413.011(d) of the Act and 28 TAC 134.202.
  6. Based upon the foregoing Findings of Fact and Conclusions of Law (and consistent with the prior decision of the Commission’s MRD), Carrier’s request for denial of reimbursement is not supportable and should not be approved.

ORDER

IT IS, THEREFORE, ORDERED that Carrier’s request for denial of reimbursement for the examination of November 8, 2002, and April 4, 2003, is denied and Provider is entitled to reimbursement.

Signed December 22, 2004.

PENNY WILKOV
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. Respondent’s Exhibit 1, page 23.↑
  2. Denil Code AF is used when the insurance carrier is reducing payment from the billed amount in accordance with the appropriate TWCC fee guideline maximum allowable reimbursement.↑
  3. Under the workers’ compensation system, an employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury. The employee is specifically entitled to health care that: (1) cures or relieves the effects naturally resulting from the injury; (2) promotes recovery; or (3) enhances the ability to return to or retain employment. Tex. Lab. Code Ann. § 408.021. “Health care” includes “all reasonable and necessary medical . . . services.” Tex. Lab. Code Ann.§ 401.011(19).↑
  4. Respondent’s Exhibit 1, pages 1-12 (Docket No. VT-01-186255-01-CC-SA45, Robert M. Richards, Hearings Officer).↑
  5. The Decision and Order, Finding of Fact No. 4 recites that Claimant’s injury to his neck, or cervical region, did not arise out of or in the scope of his employment and is not a compensable injury; meanwhile, Finding of Fact No. 3 finds that the injury to the thoracic region of his spine arose out of and was in the scope of his employment and is therefore, a compensable injury.↑
  6. Respondent’s Exhibit 1, page 17.↑
  7. Petitioner’s Exhibit 1, pages 1-3 (January 8, 2002).↑
  8. Respondent’s Exhibit 1, page 25.↑
  9. 28 Tex. Admin. Code §130.1 (c) (2) (A) provides that the appropriate edition for all certifying examinations conducted before October 15, 2001 is the Third Edition, AMA Guides.↑
  10. Respondent’s Exhibit 1, page 23.↑
  11. Respondent’s Exhibit 1, page 26.↑
  12. Petitioner’s Exhibit 3, page 1.↑
  13. Respondent’s Exhibit 1, page 30.↑
  14. Tex. Lab. Code Ann.§ 408.0041(b) specifically states that “(t)he treating doctor and the insurance carrier are both responsible for sending to the designated doctor all the injured employee’s medical records relating to the issue to be evaluated. . .” The Commission rule, 28 Tex. Admin. Code 130.5, further defines this duty by providing that an order appointing the designated doctor shall “require the treating doctor and insurance carrier to forward all medical records. . .”↑