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At a Glance:
Title:
453-01-2492-m5
Date:
January 8, 2002
Status:
Retrospective Medical Necessity

453-01-2492-m5

January 8, 2002

DECISION AND ORDER

The University of Texas System (UTS) appealed the findings and decision of the Texas Workers= Compensation Commission's (Commission) Medical Review Division (MRD) in MDR Docket No. M5-00-0294-01, which ordered reimbursement of $403.00 for a MMI exam provided to____________ (Claimant). In this decision, the Administrative Law Judge (ALJ) finds that Cesar A. Sevilla, M.D. (Provider) is not entitled to reimbursement of $403.00 for the MMI evaluation provided to Claimant.

I. JURISDICTION, NOTICE, AND PROCEDURAL HISTORY

There were no contested issues of jurisdiction, notice or venue. Therefore, those issues are addressed in the findings of fact and conclusions of law without further discussion here.

The hearing in this matter was held November 13, 2001, at the Hearings Facility of the State Office of Administrative Hearings, Stephen F. Austin Building, Suite 1100, 1700 North Congress Avenue, Austin, Texas, with ALJ Steven M. Rivas presiding. UTS appeared through Bradley D. McClellan, Assistant Attorney General. Provider appeared through Sue Sanders, the officer manager for Provider. The Commission waived appearance at this hearing. The record closed the same day.

II. APPLICABLE LAW

The Texas Labor Code contains the Texas Workers= Compensation Act (the AAct) and provides the relevant statutory requirements regarding compensable treatment for workers= compensation claims. In particular, Tex. Lab. Code Ann. ' 408.021 provides in pertinent part:

(a)An employee who sustains a compensable injury is entitled to all health care reasonably required by the nature of the injury as and when needed. The employee is specifically entitled to health care that:

  1. cures or relieves the effects naturally resulting from the compensable injury;
  2. promotes recovery; or
  3. enhances the ability of the employee to return to or retain employment.

Under Tex. Lb. Code Ann. '401.011(19) health care Aincludes all reasonable and necessary medical aid, medical examinations, medical treatment, medical diagnoses, medical evaluations, and medical services. The Labor Code also requires the Commission, by rule, to establish medical policies and guidelines relating to fees charged or paid for medical services, including guidelines for specific services. Tex. Lab. Code Ann. '413.011(a)(1).

The statute that governs MMI certification is Title 28 Tex. Admin. Code '130.1, and provides for the following:

(a)Certifying Doctor. Maximum medical improvement (MMI) shall be determined and certified by a doctor as defined in ''401.011 (17) of the Texas Workers' Compensation Act.

(b) Certification of Maximum Medical Improvement.

(1) Maximum medical improvement (MMI) is:

(A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;

(B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or

(C) the date determined as provided by Texas Labor Code ''408.104.

(2) MMI must be certified before an impairment rating is assigned.

(3) Certification of MMI is a finding made by a doctor that an injured employee (employee) has reached MMI as defined in subsection (b)(1) of this section.

(4) To certify MMI the certifying doctor shall:

(A) review medical records;

(B) perform a complete medical examination of the employee for the explicit purpose of determining MMI (certifying examination);

(C) assign a specific date at which MMI was reached.

(i) The date of MMI may not be prospective or conditional.

(ii) The date of MMI may be retrospective or the date of the certifying exam; and

(D) complete and submit required reports and documentation.

(c) Assignment of Impairment Rating.

(1) An impairment rating is the percentage of permanent impairment of the whole body resulting from the current compensable injury. A zero percent impairment may be a valid rating.

If, after MMI certification, a dispute arises over the impairment rating, Tex. Lab. Code Ann. ' 408.122, in pertinent part provides:

(c)If a dispute exists as to whether the employee has reached maximum medical improvement, the commission shall direct the employee to be examined by a designated doctor chosen by mutual agreement of the parties. If the parties are unable to agree on a designated doctor, the commission shall direct the employee to be examined by a designated doctor chosen by the commission.

Furthermore,Tex. Lab. Code Ann. '408.125, directs the following:

(a)If an impairment rating is disputed, the commission shall direct the employee to be examined by a designated doctor chosen by mutual agreement of the parties.

(b)If the parties are unable to agree on a designated doctor, the commission shall direct the employee to be examined by a designated doctor chosen by the commission.

Title 28 Tex. Admin. Code ' 130.2 Certification of Maximum Medical Improvement by the Treating Doctor.

(a)A treating doctor shall examine the employee and certify that an employee has reached maximum medical improvement and assign an impairment rating, if any, as soon as the doctor anticipates that the employee will have no further material recovery from or lasting improvement to the work-related injury or illness, based on reasonable medical probability.

(b)A treating doctor who certifies that the employee has reached maximum medical improvement shall assign an impairment rating and shall:

  1. (1)complete the report required by '130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment); and
  2. (1)send it, no later than seven days after the examination, to the commission, the employee, or the employee's representative, if any, and the insurance carrier.

(c)The commission shall mail a notice to a treating doctor on the expiration of 98 weeks from the date the injured employee's temporary income benefits began to accrue if the employee is still receiving temporary income benefits. The commission's notice shall advise the treating doctor of the requirements the Texas Workers= Commission Act, '4.26, and this rule, and require that an impairment rating report be mailed to the commission no later than 104 weeks from the date temporary income benefits began to accrue.

Under Title 28 Tex. Admin. Code'133.3:

(a)The treating doctor is the doctor who is primarily responsible for coordinating the employee's health care for an injury.

(b)Except in the case of an emergency, the treating doctor shall approve or recommend all health care rendered to the injured employee. This includes, but is not limited to, referrals to consultants made by the treating doctor. The referral shall be medically reasonable and necessary.

(c)The treating doctor shall be responsible for maintaining efficient utilization of health care.

(d)The treating doctor shall complete and submit required medical reports as specified in '' 133.100-133.103 of this title (relating to Required Medical Reports; Initial Medical Report; Subsequent Medical Report; Specific Medical Reports).

(e)The treating doctor shall:

  1. (1)certify when maximum medical improvement (MMI) has been reached, and assign an impairment rating as described in '130.2 of this title (relating to Certification of Maximum Medical Improvement by Treating Doctor); and
  2. (1)complete the report required under '130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment).

(f)However, if a doctor other than the treating doctor is certifying MMI, the treating doctor shall indicate agreement or disagreement with the certification and evaluation of the certifying doctor as specified in '130.3 of this title (relating to Certification of Maximum Medical Improvement by Doctor Other Than Treating Doctor).

(g)The treating doctor shall be responsible for recommending spinal surgery, if medically necessary.

III. DISCUSSION

A. Background Facts

On_______, Claimant sustained an injury to her left shoulder that was compensable under the Act. Thereafter, Claimant began seeing Provider for treatment of her injury.

On May 12, 1999, a Carrier-selected doctor (Steve Thompson, M.D.) performed an MMI exam on Claimant and assigned a 5 percent impairment rating. On June 2, 1999, Provider asserted his disagreement with the Carrier-selected doctor's impairment rating of Claimant. On August 17, 1999, Provider administered another MMI exam on Claimant and assigned a 16 percent impairment rating. Provider then sought reimbursement for the MMI exam performed on August 17, 1999. Carrier refused to reimburse Provider claiming this exam was not proper because the applicable rules require a designated doctor, rather than the treating doctor, to perform an MMI exam on the Claimant if there is a disagreement over the impairment rating. It was stipulated at the hearing that on August 20, 1999, the Commission sent a letter to all parties setting up an appointment for Claimant's MMI exam with a designated doctor.

After Carrier refused to reimburse Provider the cost of the MMI exam performed on August 17, 1999, Provider filed a request with MRD for a medical dispute resolution. After conducting the medical dispute resolution process, MRD determined that Provider was entitled to reimbursement of $403.00 for the MMI exam performed on August 17, 1999. Carrier then appealed this matter to SOAH, resulting in this proceeding.

B. Party Positions

Carrier refuses to reimburse Provider for the cost of the MMI exam performed on August 17, 1999, because a designated doctor should have performed the MMI exam rather than the treating doctor. Carrier asserts the proper procedure in this case was for a designated doctor to perform the MMI exam on Claimant rather than the Provider because the impairment rating assigned by the Carrier-selected doctor was in dispute. Therefore, Carrier believes Provider is not entitled reimbursement because Provider performed an improper MMI exam on Claimant.

Carrier additionally argues it does not have the burden of proof in this matter. Carrier submitted a brief in support of this contention during closing argument. Since the Provider is the party seeking to recover expenses, Carrier believes Provider is charged with the responsibility of proving its case at the Medical Resolution Dispute hearing and the hearing before SOAH, regardless of the MRD decision.

Provider's main point is that the MMI in question was performed before the Commission notified all parties of the designated doctor (Suzanne Page, M.D.). Provider argues under 28 tex. Admin. Code ' 133.3, Provider, in its position as treating doctor, is authorized to perform an MMI exam and assign an impairment rating. Therefore, Provider believes it was in compliance with the applicable statute by properly administering the MMI exam and assigning an impairment rating of Claimant. For performing its duties under applicable statutes, Provider argues it should be reimbursed.

Analysis and Conclusion

The LJ finds that the MMI exam performed by the Provider on August 17, 1999, is not reimbursable because the impairment rating of Claimant assigned by the Carrier-selected doctor was in dispute. Therefore, the Claimant should have undergone an MMI exam by a designated doctor and not the Provider. The parties could have agreed on a designated doctor or, in the absence of an agreement, the Commission would have chosen a designated doctor for Claimant. In any event, the Provider was not allowed to administer an MMI exam on the Claimant and is therefore not entitled to reimbursement of this service. Under Title 28 tex. Admin. Code' 133.3 (f), Aif a doctor other than the treating doctor is certifying MMI, the treating doctor shall indicate agreement or disagreement with the certification and evaluation of the certifying doctor. . .. There is no dispute that the Provider properly asserted his disagreement of the impairment rating assigned to Claimant by the Carrier-selected doctor. However, under Tex. lab. Code ann. ' 408.125(a), if there is a disagreement over the impairment rating, a claimant is supposed to be examined by a designated doctor agreed upon by the parties or as directed by the commission.

IV. FINDINGS OF FACT

  1. On___________, Claimant,_________, sustained an injury to her left shoulder that was compensable under the Act.
  2. On May 12, 1999, Steven Thompson M.D., a doctor selected by the University of Texas System (Carrier) administered a Maximum Medical Improvement exam on Claimant and assigned a 5 percent impairment rating.
  3. On June 2, 1999, the Claimant's treating doctor, Cesar A. Sevilla, M.D. (Provider), disagreed with the 5 percent impairment rating assigned by the Carrier-selected doctor.
  4. On August 17, 1999, Provider administered an MMI exam on Claimant and assigned a 16 percent impairment rating.
  5. On August 20, 1999, the Commission notified the parties that Suzanne Page, M.D., would be the designated doctor who would administer Claimant's MMI exam.
  6. Carrier refused to reimburse Provider the cost of the MMI exam performed on August 17, 1999.
  7. After being refused reimbursement, Provider filed a request with MRD for a medical dispute resolution and after conducting the medical dispute resolution process, MRD determined that Provider was entitled to reimbursement of $403.00.
  8. Carrier appealed the MRD decision.

V. CONCLUSIONS OF LAW

  1. The Texas Workers= Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (the Act), TEX. LABOR 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 decision and order, pursuant to ' 413.031(d) 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.
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV=T CODE ANN. '' 2001.051 and 2001.052.
  5. Under 28 tex. Admin. Code ' 148.21(h), the appealing party has the burden of proof in hearings conducted pursuant to ' 413.031 of the Act, under which this case is brought. Thus, Carrier (UTS) must prove, by a preponderance of the evidence, that Provider is not entitled to reimbursement of $403.00 for an MMI evaluation of Claimant.
  6. Under Tex. Lab. Code Ann. ' 408.122(c), and ' 408.125(a)(b), Carrier is not liable to reimburse Provider the sum of $403.00 for the MMI exam administered to Claimant on August 17, 1999.
  7. Based on the foregoing, Provider's claim for reimbursement from Carrier for the MMI exam provided to Claimant on August 17, 1999, should be denied.

ORDER

IT IS ORDERED that Dr. Cesar Sevilla's claim for reimbursement of $403.00 from University of Texas System for a MMI exam provided to Claimant on August 17, 1999, is DENIED.

Signed this 8th day of January, 2002.

State office of administrative hearings

Steven M. Rivas
Administrative Law Judge

End of Document
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