DECISION AND ORDER
The Insurance Company of the State of Pennsylvania (Carrier) sought review of a decision by the Medical Review Division (MRD) of the Texas Workers’ Compensation Commission (TWCC or Commission) awarding Advanced Rehabilitation (Provider) $538.00 in reimbursement for fourteen sessions of spinal manipulation provided on behalf of __ (Claimant) and for an office visit. Based on the evidence, the reimbursement amount awarded to the Provider by the MRD represented fair and reasonable compensation, consistent with agency fee guidelines.
Administrative Law Judge (ALJ) Cassandra Church convened a hearing on these issues on August 13, 2002, and the record closed that day. Steve Tipton appeared for the Carrier; the Provider did not appear. The Carrier moved for summary disposition of the case on the basis that Provider, being the initiator of the medical review, had failed to prosecute its case. 1 Tex. Admin Code (TAC) § 155.57. The Carrier’s motion was taken under advisement by the ALJ, and the Carrier presented its evidence, which consisted of the certified record of the MRD proceeding. After reviewing the applicable statutes and rules, the Carrier’s motion for summary disposition is denied.
The Carrier’s position in this case was that the party initiating a request for relief before the agenda carries the burden of proof throughout the administrative dispute, regardless of which party requested a hearing before the State Office of Administrative Hearings (SOAH). As authority for its position, the Carrier asserted that the medical review provision of the Labor Code, Tex. Labor Code Ann.§ 413.031, and Commission rule assigning the burden of proof in an administrative proceeding, 28 TAC § 148.21 (h) and (i), when read together assign the burden of proof in a contested case at SOAH to the party initially asking for relief before the agency. During the disputed period, the Labor Code provision cited by the Carrier read as follows:
§§ 413.031. Medical Dispute Resolution
(a) A party, including a health care provider, is entitled to a review of a medical service provided or for which authorization of payment is sought if a health care provider is:
- denied payment or paid a reduced amount for the medical service rendered;
- denied authorization for the payment for the service requested or performed if authorization is required or allowed by this subtitle or commission rule; or
- ordered by the commission to refund a payment received.
The burden of proof section of Rule 148.21 assigns the burden in a contested case to the party “seeking relief” under § 413.031, but does not otherwise elaborate on this point. The relevant provisions are as follows:
(h) Burden of proof. The burden of proof rests with the commission except where the controlling statute or rule specifies otherwise. Exceptions include, but are not limited to, hearings conducted pursuant to the Act, §§413.031, when the burden of proof rests with the party seeking relief; hearings conducted pursuant to the Act, §§407.046, when the burden of proof rests with the certified self-insurer; and issues concerning whether an employer has timely filed a report of injury with an insurance carrier, pursuant to §120.2 of this title (relating to Employer’s Report of Injury) when the burden of proof of showing timely filing or good cause when a timely filing has not been made rests with the employer.
(i) Proof. Proof required to prevail at a contested case hearing shall be by a preponderance of the evidence.
The burden of proof in a contested case is generally assigned by an agency’s organic statute. If the burden is not ascertainable after reference to either an agency’s statute or documented agency policy, then the judge will the place the burden of proof, applying factors cited in the rule. 1 Tex. Admin Code Ann. §155.41 (b).
The ALJ cannot agree with the Carrier’s reading that the assignment of the burden of proof in Rule 148.21 requires the initiator of a medical review before the Commission to shoulder that burden in each successive level of administrative review. First, the text of the rule itself does not state that explicitly. Second, applying the Carrier’s theory could result in an initiator of a review being required to re-prove his case at each escalating level of administrative review, notwithstanding a favorable decision by the previous reviewer. Such an outcome is at variance with the usual placement of the burden of proof on the party seeking affirmative relief in a proceeding. Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W. 2d 480 (Tex. 1984). The ALJ concludes the most straightforward reading of Rule 148.21 places the burden of proof in a contested case before SOAH on the party seeking relief from the decision of the MRD. As the Carrier has the burden of proof, SOAH’s rules do not support dismissal for this case for want of prosecution based on the Provider’s failure to appear.
The decision in this case is based on the failure by the Carrier to make a prima facie showing that the fees for services billed by the Provider, as adjusted by the MRD, were in not in accordance with the TWCC’s Spine Treatment Guideline and Medical Fee Guideline. The Carrier had denied payments for the disputed services on the grounds they required a reduction under the agency’s fee guidelines. The amounts which the MRD approved were all for the maximum allowable reimbursement (MAR) for the service billed, as described in the Provider’s treatment notes and claims for reimbursement. The fee guidelines, i.e., the MARs, promulgated by the Commission are presumptively fair and reasonable charges for health care services and supplies which may be covered under the Workers’ Compensation Act. 28 TAC §42.101. The Carrier did not present evidence to overcome that presumption. Thus, the ALJ concludes the Carrier should reimburse the Provider $538.00.
III. Findings of Fact
- On ________ (Claimant) suffered a compensable injury to his lower back while working as a fabric cutter at an apparel factory.
- On________, Claimant’s employer was covered by workers’ compensation insurance written by Insurance Company of the State of Pennsylvania (Carrier).
- During November and December 2000, Advanced Rehabilitation (Provider) administered a pain management program to Claimant for treatment of his compensable injury.
- Provider’s staff members performed spinal manipulations on Claimant on the following dates: November 2, 3, 7, 10, 16, 20-22, 28 and 30; and December 1, 4, 5, 7 and 19, 2000. (CPT Code 97260).
- Claimant was seen by Provider’s medical staff on November 14, 2000. This visit was billed as an office visit for an established patient (CPT Code 99213).
- On each date of service at issue, the Provider provided the service to Claimant that was described in its bills for reimbursement.
- For the dates of service at issue, the maximum allowable reimbursement (MAR) was $35.00 for a session of spinal manipulation and $48.00 for an established patient visit. The Provider billed the Carrier $45.00 per session of manipulation and $48.00 for the office visit.
- The Carrier denied payment for all dates of service listed in Finding of Fact No. 4 on the basis that the services were not billed in accordance with the Texas Workers’ Compensation Commission’s (Commission) Spine Treatment Guideline and Medical Fee Guideline. The Carrier denied payment for the office visit in Finding of Fact No. 5 without listing a denial code.
- The Provider timely sought review of the Carrier’s determination by the agency. On January 4, 2002, the Medical Review Division (MRD) of the Commission determined that the Provider failed to submit documentation for one manipulation session, had billed above the maximum allowable reimbursement (MAR) for 14 manipulation sessions, and had billed correctly for the office visit. The MRD awarded reimbursement in the amount of $538.00 to the Provider, based on the MAR for each service rendered.
- On January 4, 2002, the Carrier requested a hearing on the MRD decision.
- On February 2, 2002, the Commission issued a notice of hearing which included the date, time, and location of the hearing, and the applicable statutes under which the hearing would be conducted. On August 2, 2002, the Commission filed the statement of matters asserted.
- Administrative Law Judge Cassandra Church conducted a hearing on the merits of the consolidated cases on August 13, 2002, and the record closed that day.
IV. Conclusions of Law
- The Texas Workers’ Compensation Commission (Commission) has jurisdiction to decide the issues presented pursuant to Tex. Labor Code§ 413.031.
- 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 Tex. Labor Code § 413.031 and Tex. Gov’t Code ch. 2003.
- Petitioner timely requested as hearing, as specified in 28 Tex. Admin Code (TAC) §148.3.
- Proper and timely notice of the hearing was effected on the parties in accordance with Tex. Gov’t Code ch. 2001 and 28 TAC § 148.4(b).
- Petitioner has the burden of proving by a preponderance of the evidence that it should prevail in this matter, pursuant to 28 TAC § 148.21(h) and (i).
- Petitioner failed to prove by a preponderance of the evidence that reimbursement at the MAR for spinal manipulation and for an office visit was inconsistent with agency fee guidelines, and was not fair and reasonable compensation, within the meaning of Tex. Labor Code ' 413.011 and 28 TAC § 42.101, et. seq.
- Petitioner is required to reimburse Administrative Rehabilitation for the disputed treatments, pursuant to Tex. Labor Code §§ 413.011 and 413.015.
IT IS HEREBY ORDERED that the Insurance Company of the State of Pennsylvania reimburse Administrative Rehabilitation $538.00 for spinal manipulation provided to Claimant on November 2, 3, 7, 10, 16, 20-22, 28 and 30, and December 1, 4, 5 and 19, 2000, and for an office visit on November 14, 2000.
Signed October 11, 2002.
STATE OFFICE OF ADMINISTRATIVE HEARINGS
CASSANDRA J. CHURCH
Administrative Law Judge
- Acts 1995, 74th Leg., ch. 980, § 1.43, eff. Sept 1, 1995. The 2001 amendments to this Labor Code section added a fourth provision to this section, which does not change the analysis here.↑