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At a Glance:
Title:
453-01-2592-m4
Date:
May 13, 2002
Status:
Medical Fees

453-01-2592-m4

May 13, 2002

DECISION AND ORDER

Liberty Mutual Fire Insurance Company (Liberty Mutual) appealed the Findings and Decision issued by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (the Commission) in two fee dispute cases. In Docket No. 453-01-2592-M4, the MRD Decision ordered Liberty Mutual Fire Insurance Company to remit $4150.00, plus all accrued interest due at the time of payment to Southwest Houston Hand Center for providing carpal tunnel release surgery to an injured worker. In Docket No. 453-02-1771.M4, the MRD Decision ordered that Liberty Mutual Fire Insurance Company was not entitled to refund in the amount of $5,890.00, plus all accrued interest due at the time of payment which Liberty Mutual had previously paid to North Houston Hand Center for providing carpal tunnel release surgery to an injured worker. On February 7, 2002, Administrative Law Judge William G. Newchurch ordered the two cases consolidated because the Southwest Houston Hand Center and the North Houston Hand Center (collectively “Hand Center” are effectively the same entity and these cases primarily involve the same issues of fact and proof.

Liberty Mutual asserted that the Hand Center should have used a different billing code and that the correct reimbursement for each procedure was $860, the standard amount designated for carpal tunnel release under the Medical Fee Guidelines. The Hand Center did not properly appear at hearing, showed no basis for a continuance and was not ready to proceed. The MRD staff also did not appear at the hearing. The Administrative Law Judge (ALJ) finds that Liberty Mutual showed by a preponderance of the evidence that the Hand Center was not entitled to more than $860 for each of the procedures.

I.PROCEDURAL HISTORY, JURISDICTION, AND NOTICE

On April 19, 2002, ALJ William G. Newchurch convened the hearing at the William P. Clements Building, 301 W. 15th Street, Austin, Texas. Attorney Shannon Butterworth represented Liberty Mutual; no one represented the MRD staff (Staff). Attorney Kevin Corcoran had previously made an appearance in the case and had participated in a pretrial telephone conference on behalf of the Southwest Houston Hand Center and North Houston Hand Center. However, Mr. Corcoran did not appear at the hearing and never filed a motion to withdraw as representative for the Hand Center entities as required by SOAH Rule 155.21(c). Further, no other attorneys or agents had filed a Notice of Representation on behalf of the Hand Center entities as required by SOAH Rule 155.21(b). Further, the Hand Center failed to file a timely Request to Appear by Telephone as required by SOAH Rule 155.45(a) and 155.29(c)(1). Despite the foregoing, ALJ Newchurch received a call immediately prior to the hearing from attorneys Howard Rubenstein and Rob Todd, in Houston, who explained that they were attempting to call in for the hearing to represent the Hand Center by telephone.

As a result, ALJ Newchurch placed a call to Rob Todd’s office and was able to reach Mr. Rubenstein and Mr. Todd together by telephone. Mr. Todd explained that he was the General Counsel for the Hand Center and that he had hired Mr. Rubenstein as an expert in these types of case to represent the Hand Center. They both explained that they had been drafting a Class Action Petition to be filed in Travis County District Court, the purpose of which was to address the “pattern of delay and denial” that Liberty Mutual had exhibited in refusing to pay the claims generated by the Hand Center on behalf of its patients. Further, they objected to Liberty Mutual’s attempts to “appeal these issues on a piecemeal basis” through the worker’s compensation system and represented that they intended to file this Class Action lawsuit on behalf of all present and future claimants and patients who cannot get their surgeries paid for because of Liberty Mutual’s refusal to cooperate. Because this lawsuit would allegedly “supersede” any other forms of litigation or proceedings in which the fate of such claims would be decided, the attorneys argued that ALJ Newchurch should not go forward with the present cases.

Liberty Mutual attorney Butterworth responded that she had no notice of any such suit being filed prior to the beginning of the hearing and that it was doubtful that any such suit would have any effect on the matters pending before SOAH because the workers’ compensation statute clearly requires Liberty Mutual and any other parties having a dispute regarding the payment or denial of workers’ compensation medical benefits to first exhaust their administrative remedies on a “piecemeal” basis with SOAH before any suit could be filed in district court. As a result, any suit filed in district court that was not an appeal of a SOAH decision would be thrown out for lack of jurisdiction.

After hearing these arguments, the ALJ questioned the Hand Center’s attorneys as to whether any type of suit had already been filed and whether any type of formal order enjoining these SOAH cases was in effect. After explaining that they had intended to file the suit prior to the beginning of this hearing, the Hand Center attorneys admitted that they had not been able to do so and were still investigating whether such a suit could be fax filed or whether overnight mail would be required. As a result, ALJ Newchurch found that there was no reason for the SOAH hearing to be abated since no restraining order was in effect and theHand Center would ultimately be required to exhaust itsadministrative remedies before pursuing a case in district court.

As a result, ALJ Newchurch called the hearing to order and asked whether there were any pretrial matters to address. Attorney Butterworth objected to the fact that counsel for the Hand Center had failed to comply with SOAH Rule 155.21(b), which states that all representatives must first file an appearance with SOAH and Rule 155.21(c) that any attorney of record will remain such until and unless a formal Motion to Withdraw is made and an ALJ enters an Order approving such a request. Second, Attorney Butterworth objected that the Hand Center should not be allowed to appear by telephone because they had failed to file a formal request to do so at least seven days in advance of the hearing under SOAH Rule 155.45(a) and 155.29(c)(1).

The ALJ asked why the new counsel for the Hand Center had failed to file an appearance with SOAH. Mr. Todd explained that the former counsel, Kevin Corcoran, had accepted employment with a firm that would not allow him to represent clients in front of SOAH, which is why he was no longer on the case. He apologized that no formal Motion to Withdraw had been filed and stated that he believed his own office had filed a Notice of Representation with SOAH more than six weeks ago. Neither SOAH nor Liberty Mutual’s counsel had received any evidence of such a filing. The ALJ asked Attorney Butterworth if she had any reason to dispute Mr. Todd’s status as General Counsel for the Hand Center to which she responded that she had no previous notice of the fact but had no specific reason to dispute it. The ALJ then denied Attorney Butterworth’s objections pursuant to SOAH Rule 155.21(b) and (c) and ruled that Mr. Todd would be allowed to represent the Hand Center for purposes of this hearing only but would be required to file a formal written notice for any future appearances.

Next, the ALJ asked the Hand Center’s counsel why they had not filed a request to appear by telephone for the hearing. Both attorneys plead complete ignorance of the SOAH rules in general and Mr. Rubenstein said his secretary had told him he could simply call in by phone to appear. Attorney Butterworth argued that ignorance of the SOAH rules was no excuse since all attorneys have a duty to familiarize themselves with local rules of practice in courts where they are not known.

Next, the ALJ explained that the SOAH rules provide that no party should be prejudiced in its ability to present evidence or cross-examine witnesses by having to appear by telephone. The ALJ asked the Hand Center counsel if they had any arguments to offer in this regard. Counsel for the Hand Center responded that they were not prepared to go forward with the hearing by telephone, or in any other format, because they had not lined up any witnesses or evidence and were not prepared to proceed with the trial of the case. Attorney Butterworth responded that this was, in effect, a request for a continuance. Further, she argued that they would not be prejudiced since thevast majority of providers appear by telephone at such hearings and are able to adequately present testimony, make argument and cross-examine witnesses telephonically. Further, Attorney Butterworth argued that Liberty Mutual would be the prejudiced party if a continuance was granted since they we were present and ready to proceed with a live witness who was ready to go forward with the case as well. Additionally, Mr. Todd had admitted that he had been aware of the case for at least six weeks and had failed to file a motion for continuance despite having had time to do so. Thus, no reason existed to continue the case and the Hand Center’s motion failed to comply withSOAH Rule 155.29(f)(1-5).

At this point, the ALJ granted Attorney Butterworth’s objections to the Hand Center’s counsel appearance by telephone pursuant to SOAH Rule 155.45(a) and 155.29(c)(1). Thus, the Hand Center would not be allowed to appear by telephone for the hearing because they had failed to file a request to do so pursuant to the rules. The ALJ also denied the Hand Center counsel’s request for a continuance since it failed to comply with SOAH Rule 155.29(f)(1-5) and no good basis for a continuance existed. As a result, the ALJ ruled that the Hand Center was in default and had failed to formally appear for the hearing.

Notice and jurisdiction were not contested and will be addressed in the findings of fact and conclusions of law. The hearing notice, MRD official record and Liberty Mutual’s prefiled evidence including affidavits and accompanying material from two physicians, Dr. Gary Pamplin and Dr. Jeffery W. Hall, were admitted into evidence after the hearing, without objection from the Hand Center, pursuant to Order No. 6, which was signed on April 29, 2002. The discussion and decision below are based on the evidence.

II. DISCUSSION

A. Background

_____________

On __________, ____________ sustained a compensable workers’ compensation injury. A physician at the Hand Center performed surgery on __________ hand on July 27, 1999, as preauthorized by Liberty Mutual. The Hand Center submitted a claim for reimbursement in the amount of $4,150.00, using CPT Code 26989, described as “Unlisted procedure, hands or fingers.”[1] Liberty Mutual denied the claim under the denial code of “N,” which stands for “not documented.” The Hand Center requested medical dispute resolution. MRD issued its amended findings and decision on March 7, 2001, ordering Liberty Mutual to remit an additional $4,150.00, plus accrued interest to the provider. Thereafter, Liberty Mutual timely appealed the MRD decision.

____________

In the consolidated matter, _____________ sustained a compensable workers’ compensation injury on _________. A physician at the Hand Center performed surgery on ________ hand on March 13, 2001, as preauthorized by Liberty Mutual. The Hand Center submitted a claim for reimbursement in the amount of $6,750.00, using CPT Code 26989, described as “Unlisted procedure, hands or fingers.” Liberty Mutual paid the claim in full on May 11, 2001. On June 1, 2001, Liberty Mutual requested a full refund on the basis that the claim had been overpaid in error. Liberty Mutual issued a second request for a refund on the same basis on July 23, 2002. Liberty Mutual requested medical dispute resolution. MRD issued its amended findings and decision on January 10, 2002, denying Liberty Mutual’s request for a refund. Thereafter, Liberty Mutual timely appealed the MRD decision.

General

On each occasion, the Hand Center billed its procedure under CPT Code 26989, which is a documentation of procedure (DOP) code. When a provider seeks reimbursement under a DOP code, the value of the service is determined by written documentation submitted by the provider with the bill. According to the 1996 Medical Fee Guideline General Instructions III (A), a DOP is used when the provided services are not specifically listed in the medical fee guidelines or when the services are unusual or too variable to have an assigned MAR (maximum allowable reimbursement). When a DOP code is used, the provider must provide information of the following factors listed in the medical fee guidelines: (1) an exact description of the procedure or service provided, (2) the nature, extent and need (diagnosis and rationale) for the service or procedure, (3) the time required to perform the service or procedure, (4) the skill level necessary for performance of service or procedure, (5) the equipment used (if applicable), and (6) other information as necessary.

B. Liberty Mutual Evidence and Argument

Liberty Mutual claimed that Dr. Brown’s documentation: (1) did not describe why these patients’ conditions justified the use if the “Brown procedure” (an allegedly more complicated procedure developed and used by Dr. Brown) instead of another carpal tunnel release procedure, (2) failed to describe how long it took to perform the procedure, (3) supported the claim that it did not require unique skill to perform the procedure since any surgeon could receive training on it, and (4) failed to provide any information regarding the cost of the cannulas used during the procedure. Liberty Mutual claims that, after review of the operative report and description of the procedure provided by the carrier, it concluded that the carpal tunnel surgery in issue was an internal carpal ligament release surgery, a form of arthroscopic carpal tunnel release, for which the medical fee guidelines has established a code, CPT code 29848 (release of transverse carpal ligament). The maximum allowable reimbursement for CPT code 29848 is $860. Liberty Mutual contended the provider should be reimbursed the $860 amount allowed under the medical fee guidelines for CPT Code 29848 and that the Hand Center should bill this procedure under the CPT Code 29848.

Liberty Mutual introduced pre-filed evidence in the form of Affidavits from two physicians, Dr. Gary Pamplin and Dr. Jeffrey W. Hall, to support its claim that the procedure performed by Dr. Brown should be considered a transection of the transverse carpal ligament which does not differ substantially from other endoscopic carpal tunnel release procedures. Additionally, Dr. Hall attended the hearing to give live testimony on these issues. Dr. Pamplin has been practicing hand surgery for over 30 years. He received his medical degree from the University of Texas Medical Branch at Galveston, Texas, in 1962. He is certified in Orthopedic Surgery with Special Qualifications in Hand Surgery by the American Board of Orthopedic Surgery. He has served as a clinical professor in the Department of Surgery, Division of Orthopedic Surgery, at the University of Texas Health Science Center in San Antonio, Texas. He established the Hand Clinic at Brackenridge Hospital in Austin, Texas, where he served as director for thirteen years.

According to the affidavit of Dr. Pamplin, the common denominator in all carpal tunnel release procedures is the transection of the transverse carpal ligament in which incisions are made, the transverse carpal ligament is identified and exposed, and the ligament transected. The transection can be performed through the following surgical procedures: (1) an open carpal tunnel release; (2) a one-portal endoscopic carpal tunnel release; and (3) a dual-portal endoscopic carpal tunnel release. The Brown procedure is a dual-portal endoscopic carpal tunnel release. According to Dr. Pamplin, the success and complication rates of endoscopic carpal tunnel release surgery and open carpal tunnel release surgery are similar, as reported in standard peer-reviewed medical journals. Dr. Pamplin stated that the charges related to the equipment used by Dr. Brown do not appear to be reasonable and/or standard since carpal tunnel procedures are performed daily using other equipment. Dr. Papmlin also questioned whether the procedure, with its accompanying costs, promotes cost savings since: (1) therapy after carpal tunnel release is rarely required regardless of the type of procedure, (2) the large cost of Dr. Brown’s charges when he uses his equipment and requires the presence of a surgical assistant offsets savings, if any, resulting from decreased therapy and lost time from work, (3) Dr. Brown’s claims that patients return to work earlier are not sufficiently documented and most patients require 10-12 weeks of healing and restricted physical activity regardless of the procedure used, (4) there was insufficient data upon which to conclude that Dr. Brown has a superior success rate with his procedure, and (5) the use of a surgical assistant does not appear justified.

Dr. Jeffrey Hall is a physician in private practice in the area of hand and plastic surgery. He received his medical degree from Texas Tech University Health Sciences Center School of Medicine in 1988. He is Board certified in General Surgery and Plastic Surgery. He has received training in the Agee endoscopic carpal tunnel release and is trained as an instructor in endoscopic carpal tunnel release surgery.

According to the affidavit of Dr. Hall, the Brown procedure is similar to another carpal tunnel release procedure referred to as the “Chow Procedure” which is also a dual-portal procedure. The Agee procedure is a single portal procedure. Dr. Hall stated that the significant difference between the single and dual portal procedures is that the single portal procedure uses only one incision site through which both the scope and the cutting instrument are inserted, as opposed to the two incision sites in a dual portal procedure. According to Dr. Hall, the Brown procedure does not differ significantly from the Chow dual portal procedure or any other type of endoscopic carpal tunnel release procedure, nor does it appear to take significantly longer to perform than the other procedures.

Dr. Hall stated that it is infrequent that the patient needs any physical therapy after an endoscopic carpal tunnel release procedure, regardless of the type of procedure. It is also common for a “time off of work” period to be limited to two weeks of a “no lifting” restriction after which the patient can return to work as tolerable after any of the various carpal tunnel procedures. Dr. Hall noted that the endoscopic techniques can result in less healing ti me than an open surgical technique in some cases. He also noted that the Brown procedure has a comparable success rate to the other endoscopic techniques and that the Brown procedure does not appear to vary in length or intensity with each patient since a standard operative report seems to have been used.

Dr. Hall also stated that the applicable standard of care for an endoscopic carpal tunnel release procedure did not require the services of a surgical assistant. Dr. Hall noted that Dr. Brown called his procedure an “endoscopic decompression carpal canal (carpal tunnel release) for decompression median nerve with decompressive volar forearm fasciotomy.” He stated that this description can be used to describe all endoscopic carpal tunnel release procedures and that the Brown procedure cannot be distinguished on this basis. Dr. Hall concluded that the amount charged by Dr. Brown did not appear to be reasonable and necessary for the procedure he performs; it should be billed under the same category and code as other types of endoscopic carpal tunnel release procedures; and thus compensated at the same rate.

C. Issues Presented and ALJ Analysis

Reasonable and Necessary. The ALJ has reviewed the MRD file and the documents submitted in support of the claims by Staff and the Center that the Brown procedure differs significantly from other carpal tunnel procedures. From the review of the file, it appears that the Brown procedure and equipment have been patented. There are also several articles discussing the procedure, including articles that were written by Dr. Brown or one of his associates. However, there was no evidence to controvert the conclusions of Dr. Pamplin or Dr. Hall, or to further explain or provide additional information as to why and how the Brown procedure is different from other endoscopic carpal tunnel release procedures. Liberty Mutual produced expert testimony from two physicians, Drs. Pamplin and Hall, who stated that the Brown procedure was not substantially different from other carpal tunnel procedures using a dual portal technique.

There was also no explanation in the MRD file as to why these patients’ conditions justified the use of the Brown procedure as opposed to other procedures. The only evidence in the MRD file on this point came from the operative reports from the July 26th procedure on ________ which indicated that the patient “was specifically advised of alternatives of treatment and their associated risks and benefits and the patient requested this procedure be performed and gave informed consent for this procedure.” ________ MRD file, pp.00025. The report does not give more information about the basis for the decision to use the Brown procedure rather than another; however, since Dr. Brown was performing the surgery, it stands to reason that he would choose his own technique. Neither Dr. Brown nor any other representative of the Hand Center appeared at the hearing. Based on the Hand Center’s failure to present any additional evidence explaining or distinguishing the Brown procedure from other similar procedures, or delineating the reasons why the Brown procedure was necessary in this instance, the ALJ finds that Liberty Mutual met its burden of proof in showing that the amount of $4,150.00 was not a reasonable and necessary medical charge for the procedures performed on __________. Further, the ALJ finds that Liberty Mutual met its burden of proof in showing that the amount of $6,750.00 was not a reasonable and necessary medical charge for the procedure performed on _________.

III. FINDINGS OF FACT

  1. On _________, ___________ sustained a compensable workers’ compensation injury.
  2. On July 27, 1999, a physician at the North Houston Hand Center (the Hand Center) performed surgery on __________ hand.
  3. The hand center submitted a claim of $4,150.00 to Liberty Mutual Fire Insurance Company (Liberty Mutual) for __________ surgery.
  4. The Hand Center used CPT Code 26989 to submit the claim for ___________ surgery.
  5. Liberty Mutual denied the claim on _____________ surgery using denial code “N” for “not documented.”
  6. The Hand Center requested medical dispute resolution from the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) on __________ claim.
  7. On March 7, 2001, MRD issued its decision ordering Liberty Mutual to remit $4150.00, plus accrued interest to the Hand Center for __________ surgery.
  8. On March 20, 2001, Liberty Mutual filed a request for a hearing on the MRD decision regarding _________ surgery.
  9. On __________, ____________ sustained a compensable workers’ compensation injury.
  10. On March 13, 2001, a physician with the North Houston Hand Center (the Hand Center) performed surgery on __________ hand.
  11. The hand center submitted a claim of $6,750.00 to Liberty Mutual Fire Insurance Company (Liberty Mutual) for _____________ surgery.
  12. The Hand Center used CPT Code 26989 to submit the claim for _________ surgery.
  13. Liberty Mutual remitted payment of $6,750.00 to the Hand Center on May 11, 2001 for _____________ surgery.
  14. On June 1, 2001, Liberty Mutual requested a full refund of ___________ claim from the Hand Center on the basis that the claim had been overpaid in error.
  15. On July 23, 2001, Liberty Mutual made a second request for a refund of the amount paid over $860 in ___________ claim from the Hand Center on the basis that the claim had been overpaid in error.
  16. Liberty Mutual requested medical dispute resolution from the Texas Workers’ Compensation Commission’s Medical Review Division (MRD) with regard to __________ claim.
  17. On January 10, 2002, MRD issued its decision denying Liberty Mutual’s request for full refund of _____________ claim from the Hand Center.
  18. On January 22, 2002, Liberty Mutual filed a request for a hearing on the MRD decision regarding ___________ claim.
  19. On April 11, 2001, TWCC sent notice to the parties of the hearing for the _______ matter scheduled for November 14, 2001, at 9:00 a.m., and a Statement of Matters Asserted on November 7, 2001, and Amended Statement on April 19, 2002. The hearing notice and the statement of matters asserted informed the parties of the matter to be determined, the right to appear and be represented by counsel, the time and place of the hearing, and the statutes and rules involved.
  20. On July 18, 2001, Liberty Mutual filed a Motion for Substitution of Counsel and Appearance of New Counsel wherein Catherine Hanna and Shannon Butterworth asked to become counsel of record.
  21. On October 24, 2001, Liberty Mutual filed a Motion for Continuance of the November 14, 2001, hearing date due to a scheduling conflict with another trial.
  22. On November 7, 2001, ALJ Gary Elkins entered Order No. 1 Granting Substitution of Counsel, Granting a Continuance pending the entry of a Decision in SOAH Docket No. 453‑01-0929.M4, and requesting status reports from the parties every thirty days until a Decision is rendered in that docket number.
  23. On December 3, 2001, Liberty Mutual filed a Status Report stating that no decision had yet been rendered in Docket No. 453-01-0929.M4 and asking that this case be set for hearing due to distinguishing facts and proof from Docket No. 453-01-0929.M4.
  24. On December 6, 2001, ALJ Gary Elkins entered Order No. 2 granting Liberty Mutual’s request to move forward with a hearing and asking the parties for agreeable dates for the same.
  25. On December 17, 2001, Liberty Mutual filed a Supplemental Status Report and Request for Summary Disposition pursuant to SOAH Docket No. 453-01-1434.M4 which involved identical issues of fact and proof.
  26. On December 19, 2001, the Hand Center requested hearing dates for the hearing of the cause.
  27. On December 21, 2001, Liberty Mutual filed Objections to the Hand Center’s requested dates and provided alternative dates for the hearing.
  28. On January 10, 2002, ALJ William Newchurch convened a telephonic prehearing conference with the parties. Kevin Corcoran appeared on behalf of the Hand Center, Shannon Butterworth appeared on behalf of Liberty Mutual, and Jacqueline Harrison appeared on behalf of TWCC. The parties agreed on March 15, 2002, 9:00 a.m. for a rescheduled hearing date.
  29. On January 11, 2002, ALJ William Newchurch entered Order No. 3 denying Liberty Mutual’s Motion for Summary Disposition and scheduling the cause for hearing on March 15, 2002, at 9:00 a.m.
  30. On January 30, 2002, Liberty Mutual filed a Motion for Consolidation with regard to a new case being appealed to SOAH involving identical issues of fact and proof and, in the alternative, Motion for Continuance to allow the new case to be processed at SOAH and consolidated for purposes of a hearing.
  31. On February 7, 2002, ALJ William Newchurch entered Order No. 4 Granting Liberty Mutual’s Motion to Consolidate SOAH Docket No. 453-01-2592.M4 _________ and Docket No. 453-02-1771.M4 __________ and setting both matters for hearing on March 15, 2002.
  32. On February 19, 2002, Liberty Mutual filed a Motion for Continuance of the hearing date due to a scheduling conflict with Liberty Mutual’s expert witness.
  33. On March 7, 2002, ALJ William Newchurch entered Order No. 5 Granting Liberty Mutual’s Motion for Continuance and scheduling the matter for hearing on April 19, 2002, at 9:00 a.m.
  34. Dr. Brown developed and patented a carpal tunnel release procedure referred to as the “Brown” procedure as well as the instruments used to perform the procedure at the Hand Center.
  35. The Brown procedure is a dual-portal endoscopic carpal tunnel release.
  36. The Brown procedure is similar to another dual-portal procedure referred to as the “Chow” procedure.
  37. The success and complication rates of the Brown procedure do not differ substantially from other endoscopic carpal tunnel release surgeries.
  38. The Brown procedure does not result in a decrease in post-operative symptoms, time away from work or the need for physical therapy as compared with other endoscopic carpal tunnel release techniques.
  39. The Brown procedure does not take significantly longer to perform than other endoscopic carpal tunnel release procedures.
  40. The Brown procedure does not vary in length and intensity with each patient.
  41. The large costs associated with the Brown procedure offset any savings which could result from decreased therapy and lost time from work.
  42. A surgical assistant’s services are not normally required during an endoscopic carpal tunnel release surgery and increase the costs of the procedure.
  43. Liberty Mutual established that the Brown procedure was not distinctive in nature.
  44. The Medical Fee Guidelines contain a CPT code for a carpal tunnel release procedure in CPT Code 29848, “Endoscopy, wrist surgery with release, transverse carpal ligament.”
  45. The amount of reimbursement established in CPT code 29848 is fair and reasonable for the Brown technique of an endoscopic carpal tunnel release surgery.
  46. Dr. Brown performed an endoscopic wrist surgery with release of the transverse carpal ligament.
  47. Liberty Mutual correctly denied the Hand Center’s billing of the Brown Procedure for _________ under code 26989 as “not documented” under the TWCC Medical Fee Guidelines since the procedure should have been billed as an endoscopic carpal tunnel release, pursuant to CPT Code 29848 in order to be correctly documented.
  48. Liberty Mutual correctly requested a refund in the ___________ case since the procedure billed under code 26989 was “not documented” as provided and a refund should have been issued for the same.

IV. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented, pursuant to the Texas Workers’ Compensation Act (the Act), Tex. Lab. Code Ann. §413.031 (Vernon Supp. 2000).
  2. The State Office of Administrative Hearings has jurisdiction over matters relating to the hearing in this proceeding, including the authority to issue a decision and order, pursuant to §§ 402.073 and 413.031(d) of the Act and Tex.Gov’t Code Ann. ch. 2003 (Vernon 2000).
  3. Liberty Mutual timely filed its request for a refund as specified in Rule 133.304(a) in the ____________ matter.
  4. Liberty Mutual timely filed requests for hearing, as specified in 28 Tex. Admin. Code (TAC) § 148.3 in both instances.
  5. Proper and timely notice of the hearing was effected upon the parties according to Tex. Govt. Code Ann. ch. 2001 (Vernon 2000) and 28 TAC §148.4(b).
  6. Liberty Mutual had the burden of proving the cases by a preponderance of the evidence, pursuant to 28 TAC §148.21 (h) and (i).
  7. Based on Findings of Fact Nos. 34-44, and 46, Liberty Mutual showed that the amount billed by the Hand Center was not reasonable and necessary and the code used by the Hand Center was not documented.
  8. Based on Findings of Fact 34-44 and 46 Liberty Mutual showed that the fair and reasonable amount for the services provided by Dr. Brown was equivalent to that charged under CPT Code 29848.
  9. Based on the foregoing findings of fact and conclusions of law, Liberty Mutual met its burden of proof to show it should not be required to reimburse the Hand Center for the billed amount under the code billed.

ORDER

It is hereby ordered that the MRD’s Decision in SOAH Docket No. 453-01-2592.M4 (__________), ordering Liberty Mutual Fire Insurance Company to remit $4150.00, plus all accrued interest due at the time of payment to Southwest Houston Hand Center, is hereby reversed as provided by Tex. Lab. Code Ann. §413.016(b). No reimbursement is due.

It is further ordered that the MRD’s Decision in SOAH Docket No. 453-02-1771.M4 (___________), denying the request of Liberty Mutual Fire Insurance Company that the North Houston Hand Center be ordered to refund $5,890, plus all accrued interest, to Liberty Mutual, is hereby reversed as provided by Tex. Lab. Code Ann. § 413.016(b). The Hand Center is therefore ordered to process a refund to Liberty Mutual in the amount of $5890.00, plus all accrued interest at the time of payment.

This decision is final on the date when the party is notified of the decision according to 28 TEX. ADMIN. CODE §148.22(H). If the decision was mailed, a party or the party’s representative is presumed to have been notified on the date on which the notice was sent.

Signed on the 13th day of May, 2002.

WILLIAM G. NEWCHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. CPT stands for Current Procedural Terminology. The Commission adopted the five-digit numeric codes from the Physicians’ Current Procedural Terminology, Fourth Edition, by the American Medical Association. The codes are used to identify billing procedures.
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