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At a Glance:
Title:
453-01-3393-m5
Date:
May 15, 2002
Status:
Retrospective Medical Necessity

453-01-3393-m5

May 15, 2002

DECISION AND ORDER

William Strinden, M.D. (Petitioner) appealed the findings and decision of the Texas Workers’ Compensation Commission’s (Commission) Medical Review Division (MRD) in MDR Docket No. M5-00-0575-01 which denied reimbursement for an office visit, x-ray, and TWCC-64 form provided _____ (Claimant) prior to the time the Commission had approved Claimant’s request that Petitioner be designated her treating doctor. This decision finds Petitioner is entitled to the requested reimbursement.

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 April 4, 2002, at the State Office of Administrative Hearings, 300 W. 15th Street, Austin, Texas, with Administrative Law Judge (ALJ) Ann Landeros presiding. Petitioner appeared through his designated representative, Sarah Strinden. Respondent Provider was represented by attorney Steven Tipton. The Commission waived its appearance in this matter. After receipt of evidence and argument, the record closed that same day.

II. DISCUSSION

A. Background Facts

While working as a ___ at _____, Claimant exacerbated a degenerative joint disease in her hand that left her unable to lift even light objects, a condition that was compensable under the Texas Workers’ Compensation Act (Act), TEX. LAB. CODE ANN., ch. 401 et seq. At the time of the compensable injury, Gates McDonald (Carrier) was the administrator for _____ self-insurance for workers’ compensation.

Petitioner was asked by Carrier’s nurse case-manager to see Claimant to determine if anything else could be done for her after an impairment rating had been given by another doctor. (Exh. 1, pp. 7,53). After Petitioner agreed to see Claimant, the nurse manager sent Claimant’s records on May 17, 1999. Claimant changed her first appointment with Petitioner from June 21 to July 12, 1999. During the July 12th appointment, Claimant gave Petitioner her request to change treating doctors on the Commission’s form, which Petitioner signed. During that visit, Petitioner provided Claimant with the following services: a new patient office visit, x-rays, and completion of a TWCC-64 form.

For some reason, the request to change treating doctor form was not received at the Commission until July 26, 1999, and the request was not approved by the Commission until August 2, 1999. Carrier denied reimbursement for Petitioner’s services to Claimant on July 12, 1999, on the basis that Petitioner was not Claimant’s treating doctor on that date and Claimant had not been referred to Petitioner for treatment by her treating doctor. The MRD affirmed the basis of Carrier’s denial of reimbursement.

B. Applicable Rules and Statutes

The Commission rule at 28 TEX. ADMIN. CODE (TAC) § 126.9 sets forth the process for requesting a change of treating doctor. The first doctor who provides health care is considered the initial treating doctor. 28 TAC § 126.9(c). The employee may change treating doctors by request made in writing to and approved by Commission. Act at § 408.022(b).The Commission’s rule requires the patient, not the provider or carrier, send the completed request to change doctor form to the Commission.

A doctor recommended by the carrier or employer is not a treating doctor unless the employee continues to receive treatment from a doctor for a period over sixty days. 28 TAC § 126.9(c)(2). Obtaining of a second or subsequent opinion only on the appropriateness of the diagnosis or treatment is not the functional equivalent of changing treating doctors. Act at 408.022(e)(3). According to the Act at §408.025(c) and the Commission rule at 28 TAC § 133.3, the purpose of having a treating doctor is to maintain efficient utilization of health care by having one provider coordinate all health care for the claimant.

The Commission’s Evaluation/Management Ground Rule IX, at 28 TAC § 134.201(A), recognizes a consulting category of doctor who participates in the patient’s care at the request of a carrier. The rule defines consultation as:

A consultation is a type of service provided by a doctor whose opinion or advice regarding evaluation and/or management of a specific problem is requested by the treating doctor, TWCC, or the insurance carrier; reimbursement includes preparation of appropriate reports. A consulting doctor shall only initiate diagnostic and/or therapeutic services with approval from the treating doctor.

Pursuant to the rule at 28 TAC §§ 126.9(h)(2), the Commission may, after holding a benefit contested case hearing as provided by Chapter 142 of this title (relating to Benefit Contested Case Hearing), relieve the carrier of liability for health care furnished by a doctor or health care provider at the doctor's direction if the employee failed to comply with commission rules regarding a change in treating doctor. If a carrier seeks to avoid liability for health care provided by a particular provider, the carrier must obtain an order from the Commission which identifies the health care provider and expressly states the time period for which the carrier is relieved of liability and whether the health care provider may submit the bill to the employee for those treatments or services. 28 TAC § 126.9(j).

C. Analysis

Petitioner is entitled to be paid for the services rendered to Claimant on July 12, 1999. In this case, Carrier refused to pay Petitioner, claiming Petitioner provided services without the required approval of Claimant’s prior treating doctor. But Carrier, not Petitioner, is the party that should have obtained the prior treating doctor’s approval for Petitioner’s services to Claimant on July 12, 1999. By agreeing to see Claimant at Carrier’s request, Petitioner became a consulting doctor; at least until Claimant’s request to change treating doctors was approved by the Commission. Before soliciting Petitioner to evaluate Claimant, Carrier should have obtained the necessary approval from Claimant’s treating doctor. In this case, Carrier was at least as much at fault as Petitioner for creating a situation where consulting diagnostic services were provided without the treating doctor’s approval. Any rule violation should not adhere to Carrier’s benefit.

It was undisputed that (1) Carrier referred Claimant to Petitioner for treatment; (2) the services rendered by Petitioner to Claimant on July 12, 1999, were reasonable and medically necessary; (3) Claimant, not Petitioner, controlled submission of the change of treating doctor form to the Commission. Claimant was entitled to medically necessary health care services as needed. She needed the services Petitioner provided on July 12, 1999. As Petitioner became Claimant’s treating doctor a few weeks later, Carrier cannot claim that he was not qualified to serve in that capacity on July 12, 1999.

The purpose of the treating doctor requirement is to ensure that one health care provider oversees the efficient utilization of health care resources for the patient. In this case, it would have been inefficient to delay Claimant’s care from July 12, 1999, until the Commission had approved the change of treating doctors. It took Claimant two months to get into see Petitioner. Waiting for change of treating doctor approval would have further delayed care. Carrier’s nurse manager referred Claimant for the specific purpose of evaluating the possibility of improving her condition with further treatment. There would have been little reason to delay Petitioner’s evaluation of Claimant’s medical condition until after the change of doctors was approved. If Petitioner had found Claimant’s condition untreatable, changing the treating doctor would have been unnecessary.

Petitioner provided the services billed on July 12, 1999. Carrier referred Claimant to Petitioner for the specific purpose of getting a second opinion as to the efficacy of further treatment, in effect using Petitioner as a consulting doctor. The July 12, 1999, services were all related to evaluating Claimant’s treatment options. Until the evaluation was done, neither Petitioner nor Claimant knew whether a change of treating doctor would be necessary. At the very least, Petitioner should have been reimbursed as being a consultant.

Carrier claimed TEX. LAB. CODE ANN. § 413.106 prohibited payment to Petitioner unless he was the treating doctor or had a referral from the treating doctor at the time the services were rendered. Carrier’s interpretation of the rules is unnecessarily restrictive. In fact, that statute simply prohibits payment of charges in excess of the Commission’s medical policies or fee guidelines. Carrier failed to show that Petitioner’s charges were either unreasonable or higher that the Commission’s rules allowed. Carriers routinely pay consulting (or designated) doctors for services, including second opinions. On July 12, 1999, Petitioner was closer to being a consulting or designated doctor rendering a second opinion than he was to being a treating doctor as those terms are used in the Commission’s rules.

As written, the rules required that Carrier could avoid payment to Petitioner only by having a written order from the Commission releasing it from liability after a hearing under the Commission’s rules at 28 TAC ch. 142. There was no evidence Carrier requested such a hearing or obtained such an order. Under the procedure set out in the rules, Carrier appeared to have waived its right to withhold reimbursement in this situation. Carrier is not entitled to escape liability for services rendered at its specific request because a technical requirement (beyond Petitioner’s control) was not satisfied.

Based on the specific facts of this case, an equitable application of the Commission’s rules entitles Petitioner to be reimbursed for his services to Claimant on July 12, 1999.

III. FINDINGS OF FACT

  1. William Strinden, M.D. (Petitioner) appealed the denial of reimbursement for services to ______ (Claimant) on July 12, 1999.
  2. At the time of Claimant’s compensable injury while working for ____., Gates McDonald (Carrier) was the administrator of ______ self-insured workers’ compensation insurance coverage.
  3. In May 1999, Carrier’s nurse case manager referred Claimant to Petitioner for an evaluation to see if she would benefit from further treatment as a workers’ compensation patient. Petitioner agreed to see Claimant and the nurse case manager provided Petitioner with Claimant’s medical records.
  4. Carrier did not obtain the approval of Claimant’s treating doctor before it had Petitioner provide consultation services to Claimant on July 12, 1999.
  5. Petitioner entered into an agreement with Carrier to perform a consultation on Claimant as a workers’ compensation patient.
  6. Claimant was not able to have her initial appointment with Petitioner until July 12, 1999, almost two months after the referral.
  7. On July 12, 1999, Petitioner signed the request to change treating doctor form provided to him by Claimant so that she could have him become her treating doctor.
  8. On July 12, 1999, Petitioner provided Claimant the following reasonable and medically necessary services: a new patient office visit; x-rays; and completion of a TWCC-64 form.
  9. On July 12, 1999, Petitioner was not Claimant’s treating doctor as defined in the Commission’s rules, although he was qualified to serve as such on that date..
  10. On July 12, 1999, Petitioner was the functional equivalent of a consulting doctor, having agreed to see Claimant to evaluate her and give a second opinion about her need for further treatment.
  11. Until he had evaluated the need for further treatment for Claimant, there was no need to submit the request to change treating doctors to the Commission.
  12. Delaying Claimant’s evaluation by Petitioner until her request to change treating doctors was approved by the Commission would have prevented Claimant from receiving medically necessary health care when and as needed and been an inefficient utilization of health care resources.
  13. In late July 1999, Claimant submitted to the Commission her request to have Petitioner named her treating doctor.
  14. On August 2, 1999, the Commission approved Petitioner as Claimant’s treating doctor.
  15. Carrier did not request a benefits hearing from the Commission to determine whether it was liable for the health care services Petitioner rendered Claimant on July 12, 1999.
  16. Carrier did not receive an order from the Commission after a benefits hearing relieving it of liability for the health care services Petitioner rendered Claimant on July 12, 1999.

IV. CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission (Commission) has jurisdiction related to this matter pursuant to the Texas Workers' Compensation Act (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 and the Commission’s rules, 28 TEX.ADMIN.CODE (TAC) § 133.305(g).
  4. Adequate and timely notice of the hearing was provided in accordance with TEX. GOV’T CODE ANN. §§ 2001.051 and 2001.052.
  5. Petitioner has the burden of proof in this proceeding. 28 TAC §§ 148.21(h) and (i).
  6. Pursuant to the Act, an employee who has sustained 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 cures or relieves the effects naturally resulting from the compensable injury, promotes recovery, or enhances the ability of the employee to return to or retain employment. TEX. LAB. CODE ANN. § 408.021(a).
  7. Health care includes all reasonable and necessary medical services, including a medical appliance or supply. TEX. LAB. CODE ANN. §401.011(19)(A). A medical benefit is a payment for health care reasonably required by the nature of the compensable injury. TEX. LAB. CODE ANN. § 401.011(31).
  8. A doctor recommended by the carrier or employer is not a treating doctor unless the employee continues to receive treatment from a doctor for a period over sixty days. 28 TAC §126.9(c)(2).
  9. Obtaining a second or subsequent opinion only on the appropriateness of the diagnosis or treatment is not the functional equivalent of changing treating doctors. Act at 408.022(e)(3).
  10. According to the Act at § 408.025(c) and the Commission rule at 28 TAC § 133.3, the purpose of having a treating doctor is to maintain efficient utilization of health care by having one provider coordinate all health care for the claimant.
  11. A consulting doctor is one who provides an opinion or advice regarding evaluation or management of a specific problem when requested by the treating doctor, the Commission, or the carrier. Evaluation/Management Ground Rule IX, 28 TAC § 134.201.
  12. Pursuant to the rule at 28 TAC § 126.9(h)(2), the Commission may, after holding a benefit contested case hearing as provided by Chapter 142 of this title (relating to Benefit Contested Case Hearing), relieve the carrier of liability for health care furnished by a doctor or health care provider at the doctor's direction if the employee failed to comply with commission rules regarding a change in treating doctor.
  13. If a carrier seeks to avoid liability for health care provided by a particular provider, the carrier must obtain an order from the Commission which identifies the health care provider and expressly states the time period for which the carrier is relieved of liability and whether the health care provider may submit the bill to the employee for those treatments or services. 28 TAC § 126.9(j).
  14. Petitioner provided efficient utilization of health care by acting as a consulting doctor or a second opinion doctor and evaluating Claimant’s need for further treatment prior to being named Claimant’s treating doctor.
  15. On July 12, 1999, Petitioner provided Claimant services reimbursable under the Texas Workers’ Compensation Act.
  16. By not providing Petitioner with Claimant’s treating doctor’s approval for the consultation, Carrier failed to comply with the rule at 28 TAC § 134.201, EvaluationManagement Ground Rule IX.
  17. Carrier cannot use its own failure to comply with the Commission’s rule to avoid reimbursing Petitioner for services to Claimant on July 12, 1999.
  18. The ______., self-funded insurance plan, through its administrator, should reimburse Petitioner for services provided to Claimant on July 12, 1999.

ORDER

IT IS ORDERED that _____., self-funded insurance plan, through it workers’ compensation administrator, reimburse William Strinden, M.D. for services rendered Claimant _____ on July 12, 1999.

Signed the 15th day of May 2002.

ANN LANDEROS
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

End of Document
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