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At a Glance:
Title:
453-03-2327-c1
Date:
December 15, 2003

453-03-2327-c1

December 15, 2003

DECISION AND ORDER

The Texas Workers’ Compensation Commission (TWCC or Commission) brings this compliance action against Dr. Wright H. Singleton (Petitioner) for failing to timely file reports of medical evaluations (TWCC-69s) for the month of December 2001. The Commission seeks $1,310.00 in administrative penalties and findings of administrative violations in fourteen matters, in accordance with § 415.0035 and 415.0022 of the Texas Labor Code.[1]

I.NOTICE, JURISDICTION, AND PROCEDURAL HISTORY

The Administrative Law Judge (ALJ) convened a hearing on September 8, 2003. Janice Menzies, attorney, represented Petitioner, and the Carrier was represented by attorney Yvonne Williams, Manager of APA Litigation for the Commission. The hearing concluded on that date, but the record was held open until October 15, 2003, in order for the parties to file written closing arguments.[2]

On September 5, 2003, Petitioner filed a Motion for Summary Disposition, asserting that the Commission failed to comply with Tex. Lab Code (Labor Code)§ 415.0035(f) by not providing notice of non-compliance to Petitioner prior to the audit that is in issue in this case.[3] Petitioner claimed that the Commission had failed to comply with a condition precedent before assessing penalties as a result of the audit and, consequently, the penalties were nullified and the violations and warnings should be deleted as a matter of law.

The motion for summary disposition was considered at the hearing on the merits and counsel for both parties were allowed to present oral argument on the motion.[4] The motion was held in abeyance during the hearing and the hearing continued on the merits of the allegations.[5]

I.DISCUSSION

A.Background

Dr. Singleton is a doctor authorized by the Commission to perform a medical evaluation of Claimants, who have been injured and are covered by workers’ compensation insurance, in order to determine whether they have achieved maximum medical improvement (MMI), whether there is permanent impairment, and, if so, to assign an impairment rating. Dr. Singleton is considered to be designated doctor and a required medical evaluation doctor in the worker’s compensation system.

In a letter dated April 8, 2002, Dr. Singleton was notified by Calvin Shannon, manager of the Commission’s medical audit team, that the Commission’s Compliance & Practices Division would conduct a desk audit of the reports of medical evaluation (RME or TWCC-69) submitted by Dr. Wright Singleton for the month of December 2001, in order to determine compliance with Rules 130.1 and 130.6 of the Commission.[6] These rules relate to the time period required by the Commission for filing the TWCC-69s.

On April 16, 2002, Dr. Singleton was notified by Theresa Coyle, Commission auditor, that the Commission’s preliminary review of sixty-seven RMEs was completed and that findings had been made regarding the timeliness of the reports filed by Dr. Singleton. TWCC Exhibit 1, p. 11. The preliminary report noted that sixty-six of the sixty-seven reports were required to be filed by Rule 130.1 or 130.6. Of those sixty-six reports, the audit noted that thirty-nine (or 59.09%) were timely filed, which was below the accepted Commission compliance standard of 90% timeliness. TWCC Ex. 1, p. 7. Dr. Singleton was given an opportunity to respond to the preliminary findings and did so. TWCC Ex. 1, p. 13.

After considering Dr. Singleton’s response, Stephen Quick, Director of the Commission’s Compliance and Practices Division notified him on June 6, 2002, of the final report, which contained findings that forty-four (or 66.67%) of the reports in issue were timely filed. TWCC Exhibit 1, p. 5. Dr. Singleton requested a hearing on the alleged non-compliance. The final findings were revised to show that fifty (or 75.76%) were considered to be timely filed by the Commission. TWCC Exhibit 2.

Motion for Summary Disposition

Petitioner contends that the Commission has not complied with Labor Code §415.0035(f) because it did not provide prior notice to the Petitioner of noncompliance before attempting to assess administrative penalties against him. Petitioner claims that the Commission is unable to assess administrative penalties in this case until a subsequent audit (performed after the six month grace period referenced in the Notice of Violations) shows that Dr. Singleton continues to be in non-compliance. Petitioner’s Closing Argument; Tr. pp.12-20; 90-100.[7]

The Commission argues that § 415.0035(f) amounts to an enhancement provision, allowing the Commission to assess higher penalties (not to exceed $10,000) if a subsequent audit reveals that the provider is not in compliance and notice is given to the provider that higher penalties will be sought. According to the Commission, the audit performed on Dr. Singleton cannot be considered a subsequent audit because it was the first audit the Commission had conducted on Dr. Singleton; therefore, the provisions of §415.0035(f) are not applicable. The Commission asserts that administrative penalties, not to exceed $500, are properly assessed pursuant to §415.022 of the Labor Code, for this first-time violation.

The following sections of § 415.0035 are relevant to this discussion:

  1. (2)A health care provider commits an administrative violation if that person:
  2. (1) fails or refuses to timely file required reports or records;
  3. (3)A violation under Subsection (b) is a Class D administrative violation.

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(6)A subsequent administrative violation under this section, after prior notice to the insurance carrier or health care provider of non-compliance, is subject to penalties as provided by Section 415.021. Prior notice under this subsection is not required if the violation was committed willfully or intentionally, or if the violation was of a decision or order of the commission.[8]

Section 415.021(a) of the Labor Code authorizes the commission to assess an administrative penalty against a person who commits an administrative violation. Paragraph (b) of § 415.021 allows the commission to assess an administrative penalty not to exceed $10,000 and to enter a cease and desist order against a person who commits repeated administrative violations, allows as a business practice, the commission of repeated administrative violations, or violates an order or decision of the commission.

Section 415.022(4) provides that a Class D administrative violation is punishable by an administrative penalty not to exceed $500.

The ALJ notes that the determination of whether § 415.0035(f) was applicable to this case was complicated by the language itself of § 415.0035(f) which is not clear. Further, the actions of the Commission also complicated this issue. For example, the Commission’s Final Findings matrix indicates that a maximum penalty of $10,000 exists for several of the violations, although it also indicates that Dr. Singleton has no prior enforcement history. TWCC Exhibit 2. Further, the Commission’s notice of violations letters states that A the maximum penalty allowable by law for this violation is $10,000.00, citing to §415.021(b) of the Labor Code which allows for a penalty not to exceed $10,000 for repeated administrative violations. See, e.g., TWCC Exhibit 1, p. 16. It is understandable that this could create confusion for a provider who is trying to figure out what his potential administrative penalty may be.

The Commission presented testimony from Calvin Shannon regarding this issue. According to Mr. Shannon, a repeat violation occurs after the Commission has sent a notice of noncompliance and the person continues with the noncompliance, requiring further administrative action. Tr. p. 122. Mr. Shannon testified that this audit was not a repeat violation audit.[9] Tr. p. 123. In this first-time audit, the Commission found that the provider was not in compliance and he was given a grace period of six months in order to correct the non compliance. The grace period referenced in TWCC Exhibit 1 means that for at least six months after the notice of violation, the Commission will not consider issuing another violation. Tr. p. 125. After the grace period ends, the Commission will run a report from their computer database to ascertain whether the provider has reached the 90% compliance rating. If so, no further action will be taken. If not, then the provider would be subject to a follow-up audit. Tr. 123-124. The follow-up audit is considered a subsequent audit. Tr. p. 124. As a subsequent audit, the provisions of Rule 415.0035(f) would apply.

With regard to prior notice, Mr. Shannon testified that it means the Commission has issued a warning letter, violation, or Commission order and the provider continues to take the same actions they were told not to do. The provider would receive notice from the Commission of the prior non-compliance and warned about the potential higher administrative penalties. Mr. Shannon said that the audit in this case would not be considered Aprior notice for purpose of § 415.0035(f). Tr. p. 127. According to Mr. Shannon, if another audit is done of Dr. Singleton’s TWCC-69 reports after six months and violations are found, an audit report would issue, notifying the provider that he was still in noncompliance, penalties would be issued for those violations, and the report would be forwarded to the Commission’s medical advisor, who would determine whether further action would be taken by the Commission. Tr. p. 128. At that point, the Commission would have the option of seeking the maximum penalty in § 415.021.

The ALJ agrees with Petitioner’s assertions that, when construing a statute, the entire act must be considered when determining its meaning. Petitioner’s closing argument, citing Jones v. Fowler, 969 S.W.2d 429 (Tex. 1998). Further, the plain language of the act should be considered and there is a presumption that the entire statute is intended to be effective. Petitioner’s closing argument citing Tex. Gov’t Code §311.021(2) and Clint Independent School Dist. v. Cash Invs., Inc., 970 S.W.2d 535 (Tex. 1998).

However, the ALJ believes that reading the statute in the way that Petitioner urges would render the provisions of Section 415.022 of the Labor code meaningless because, in essence, the health care provider (or carrier in another instance) would have one bite at the apple to engage in non-compliance and the Commission could assess an administrative penalty against him only after engaging in a later audit and finding non-compliance again by the provider. Support for this argument can be found in the fact that the violation in § 415.0035(b)(1) involves a paper violation, i,.e., not timely submitting reports, there may not be any significant harm which results from the violation, and the provisions of subsection (f) do not appear in any of the other violation subsections of this subchapter. Therefore, it can be presumed that the Legislature intended this section to apply to the more minor violations of § 415.0035 for a reason. If they intended for § 415.0035(f) to be a Afirst bite section, they could have more clearly stated so. See §§ 415.001, 415.002, 415.003, 415.004, 415.005, 415.006, 415.007, 415.008, 415.009; and 415.010.

However, Petitioner’s argument simply does not comport with the reality of an enforcement system. The ALJ believes that the legislature intended for the Commission to assess administrative penalties for administrative violations, including first-time violations, and gave the Commission the additional tool of being able to seek a higher penalty amount for more than one instance of non-compliance. Section 415.0035(f), as read by the ALJ, is intended to provide the protection of prior notice to the provider (or carrier) in that instance because such a protection did not previously exist. The ALJ believes that the Commission, even absent § 415.0035(f), could seek an administrative penalty not to exceed $10,000 for repeated administrative violations under § 415.021(a) and (b)(1). Therefore, in an effort to construe the statute in such a way as to give meaning to each provision, the ALJ believes the legislature was concerned with adding a prior notice requirement to the Commission before it sought an administrative penalty greater than that allowed in § 415.022(2), (3), and (4).

Under the ALJ’s construction of this statute (which is consistent with the Petitioner’s view in part), the Commission can only assess an administrative penalty not to exceed $10,000 for a (Class D) administrative violation if the violator has been found to be in non-compliance in at least two separate audits and the violator has been given prior notice that the enhanced penalty is being sought. Therefore, the Commission’s references to a possible $10,000 penalty are simply unsupportable by the statute and the circumstances of this case. The ALJ believes that the Commission can only assess a maximum penalty of $500 for each violation alleged in its audit of Dr. Singleton in this instance.

After considering the arguments of counsel and the authorities cited by them in support of their positions, and the evidence admitted in this case, the ALJ overrules Petitioner’s motion for summary disposition and proceeds to address the merits of the charges against Petitioner.

Alleged Violations

The Commission seeks administrative penalties against Dr. Singleton for failing to timely file fourteen RMEs (reports of medical evaluations). On TWCC Exhibit 2, the fourteen RMEs are designated by Filing Numbers 1, 9, 11, 13, 18, 21, 22, 25, 31, 34, 38, 43, 63, and 66.[10] According to the Commission, the lateness of the reports varied from 1 day in six instances to one instance in which the report was never sent. The total amount of penalties sought is $1,310.00. The Commission issued warning letters the six instances involving a one-day violation.

The Commission consider the timeliness of the TWCC-69s to be important because it affects the amount of benefits received by the Claimant, including temporary income benefits (TIBs), impairment income benefits (IIBs), and supplemental income benefits (SIBs). Late reporting can result in income benefits being delayed, underpaid or overpaid, resulting in harm to the injured employee, the insurance carrier, and the worker’s compensation system.

The Commission presented the testimony of Calvin Shannon to describe the audit process involved in this case. According to Mr. Shannon, the relevant audit period for Dr. Singleton is from December 1 through 31, 2001. Tr. p. 111. Mr. Shannon testified that providers are required to send the TWCC-69 reports to the Commission, as well as the insurance carrier. Information about the TWCC-69 reports is entered into the Commission’s database and the Commission’s programmers are periodically asked to run reports showing whether the reports were submitted timely, i.e., within the seven days time period required by the Commission’s rule. Tr. p. 112. Mr. Shanon stated that these reports allow the Commission to identify providers that are less than the 90% compliant standard of the Commission. Tr. p. 132. The Compliance and Practices division takes a look at the noncompliant providers and determines which of those to audit. Tr. p. 132. These types of audits are usually done on an annual basis. Tr. p. 132. There were roughly 50 doctors audited at the time Dr. Singleton was audited. Tr. p. 133.

Mr. Shannon testified that all the file numbers of the audit in this case involved reports that were received by the Commission in the month of December 2001. Tr. p. 113. Mr. Shannon explained that the audit period is defined as containing those TWCC-69s that the Commission received in December 2001 from the health care provider, in this case, Dr. Singleton. Tr. p. 111. As Mr. Shannon explained, the insurance carrier could have received reports in a period other than December (such as October or November) that would still be made the basis of the December audit. Tr. p. 111. Mr. Shannon said that the violations in these audits were based on the dates that the reports were received by the carrier. Tr. p. 114. Mr. Shannon testified that, for purpose of determining whether a report was timely submitted, a fax header on the document indicating it had been sent is one of the things the Commission looks for. Tr. p. 139.

In discussing the determination of what administrative penalty to assess against a violator, Mr. Shannon said that if a report is only one day late, then a warning will issue. Tr. p. 151. All others will be subject to a penalty, using the factors in section 415 of the Labor Code, such as the seriousness of the violation, the history of prior violations, whether actions have been taken to rectify the compliance problems, and deterrence of future violations. Tr. pp. 151-153.

Theresa Coyle, auditor for the Commission, performed the audit in issue. She testified that after the Commission selects a particular month as the time-frame for the audit, documentation is requested from the carrier to determine when they received the TWCC-69. Tr. p. 34. After receiving that information from the carrier, Ms. Coyle said that the health care provider is contacted and asked to respond. Then, a comparison is made between the information provided by the carrier and the provider. Tr. p. 34.

Ms. Coyle testified that Commission rule, 28 Tex. Admin. Code §130.1(k)(3) requires that the TWCC-69 report be filed with the carrier by facsimile or electronic transmission. Tr. pp. 35-36. In addition, the physician will usually have a narrative report which, in most cases, will be filed with the TWCC-69. Tr. 36. According to Ms. Coyle, the health care provider is required to maintain documentation of the transmission of the TWCC-69s. In this case, Dr. Singleton, as the certifying doctor, is required to maintain documentation. Tr. p. 37. A carrier is required to stamp date or otherwise annotate a document related to a worker’s compensation claim indicating the date the communication was received. Tr. p. 38. Ms. Coyle said that the insurance carrier will usually date stamp the TWCC-69s; however, if a fax header is on the document, it will be considered as well to show when it was sent and received. Ms. Coyle stated that documents are generally judged to be timely or not on the basis of the fax headers. Tr. p. 39. Ms. Coyle testified that while the reports are supposed to be faxed, there are some circumstances, such as when a small office is involved that does not have much worker’s compensation business or when the provider’s fax machine is broken, in which the provider mails the documentation, although they are supposed to fax it.

With regard to the Dr. Singleton audit, Ms. Coyle testified that the team leader, as is Commission practice, requested the documentation from the insurance carrier. Tr. p. 40. She testified about the audit practice as follows: After receiving the information from the carrier, a notice of audit is sent to the provider to inform him that there will be an audit. All the information relating to the dates the information was received by the carrier (provided by both provider and carrier) is put on a matrix or worksheet. Tr. p. 40. A preliminary report is then sent out explaining the audit and containing the matrix. The provider has a certain amount of time to respond to the preliminary report. Tr. p. 41. Ms. Coyle testified that Dr. Singleton filed a response in this case and provided an explanation for those reports that were late. She said that the explanation that the office staff was short-handed due to employee turnover and the holidays was not a legitimate excuse for a report’s lateness. Tr. p. 58.

Ms. Coyle testified that if a report was sent by mail, the Commission takes the date it was received by the carrier and subtracts five mailing days in order to arrive at a date on which the report was deemed to be sent by the provider. Tr. pp. 60-61. Ms. Coyle said that if the provider can show that the report was sent on a particular date, the Commission will consider that and may accept it as the actual date of sending. Tr. pp. 62-63. Ms. Coyle testified that the penalties are set up in the matrix so that it is automatically computed. Tr. p. 79. Ms. Coyle said that after June 6th, 2002, the date of the final audit, the compliance and practices division did not conduct any further auditing of Dr. Singleton’s filing of TWCC 69 reports. Tr. p. 87.

According to Kathryn Johnson, Dr. Singleton’s office manager, Dr. Singleton had not received any prior warnings or violations for non-compliance with timely filing TWCC-69 reports. Tr. p. 162. Ms. Johnson testified that prior to a required medical evaluation, the Commission would call Dr. Singleton’s office and give the patient’s name, and later would provide a blank TWCC-69 form and a letter stating who the treating doctor was and to whom the report should be sent. Tr. p. 163. She said that normally the Commission would give the mailing address and phone number of the treating physician. Tr. p.164.

Ms. Johnson said that during the audit period, another employee of Dr. Singleton, Maggie Lewis, was responsible to complete the fax cover sheet and note on the patient’s chart when the TWCC-69 was faxed. Tr. p. 165. Ms. Johnson testified that Dr. Singleton’s office was made aware as a result of the audit that they were not printing fax confirmation sheets to document that a faxed transmission was sent and received. Ms. Johnson testified that Dr. Singleton’s fax machine in the Dallas office would be turned off and then back on, and the staff did not realize it would give the date of 1900 on the fax header instead of the actual date, requiring someone to re-program it. Ms. Johnson said that sometimes the staff failed to re-set the fax machine date when it was turned back on. Ms. Johnson described the office situation during the relevant time period of this audit as being one in which the office had had staff turnover and was short-handed. Ms. Johnson testified that at the time of the audit, an employee left employment in September 2001 and another employee left in October 2001, so the office staff was functioning with 50% of its staff missing. Ms. Johnson said that there were three different holidays during the audit period, Thanksgiving, Christmas and New Years, which contributed to the delays in sending and receiving the reports, as well as delayed mail service resulting from the events of September 11, 2001.

The ALJ has summarized the Commission’s evidence of alleged violations in Exhibit A (attached) and does not repeat them in the body of this decision. Petitioner concedes that the TWCC-69s for the following Filing Numbers 1, 34, 43, and 63 were late, but claims they should be excused due to the office being short-handed, the holidays, and/or slower mail due to the events on September 11, 2001. There is no provision in the Commission’s rules that would specifically address good cause for late filing TWCC-69s. This may be encompassed within the Commission’s compliance goal of 90%, recognizing that even with the best of systems, there will sometimes be mistakes. Further, good cause can be considered in the assessment of penalty using the factors set forth in Labor Code § 415.021. The ALJ concludes that the Commission met its burden of proof that Dr. Singleton did not timely file TWCC-69 reports in audit files nos. 1, 34, 43, and 63 and that an administrative penalty is properly assessed against Dr. Singleton. The ALJ will address Petitioner’s contentions relating to the remaining files individually.

File No. 9. Petitioner contends that File No. 9 was faxed to the carrier’s case manager on October 23, 2001, citing to Petitioner’s Exhibit 2, pp. 175, 176. In reviewing these pages, the ALJ notes that page 175 consists of a fax cover sheet with the date of 10-23-01, addressed to Rebecca Dawson re: T.M. Ms. Johnson testified that Ms. Dawson was the carrier’s case manager. Ms. Johnson stated that she gave instructions to fax the TWCC to Ms. Dawson. Tr. p. 189. The ALJ notes that the fax cover sheet does not have printing on it, such as a fax header or footer, indicating that it was actually faxed to the carrier, i.e., no phone number or date that would normally appear on a faxed transmission. Further, Ms. Johnson did not testify that she actually faxed the document but, instead, directed that it be faxed. Therefore, Ms. Johnson does not have actual knowledge that the document was faxed or when it was faxed. Further, page 176 contains a notation “10-22-01 - faxed to case mgr. Mailed to adjuster.” There is no indication that this refers to the TWCC-69 and, given the discrepancy in dates between this notation and the cover sheet, this evidence does not establish that the TWCC-69 was faxed to the carrier on October 23, 2001. Lastly, page 179 of the exhibit indicates that Ms. Dawson had received the TWCC 69 as of October 26, 2001, but it does not demonstrate when it was sent by the provider.

File No. 11. Petitioner objects to this file number’s inclusion in this case due to its omission in the Statement of Matters Asserted (SOMA) filed by the Commission at the hearing. The ALJ notes that the parties were engaged in settlement discussions prior to the hearing and the SOMA did not include Notice of Violation Number 88734, which corresponds to File No. 11. However, the ALJ finds that Petitioner was not prejudiced by its inclusion, did not request a continuance, and proceeded to offer evidence regarding the alleged violation. Consequently, the ALJ does not dismiss File No. 11 from consideration.

Petitioner contends that Petitioner’s Exhibit 3, p. 13 demonstrates that the TWCC-69 was mailed on November 16, 2001. The notation on page 13, however, does not state that the TWCC 69 was mailed on this date; instead it merely states “mailed to all” without indicating what was actually mailed. (The word “all” may not actually be the word due to the letters running off the side of the page. If it referred to “adj” for adjuster, the conclusion is no different.)

Page seventeen of the exhibit appears to be a cover letter from the K-Clinic to the carrier indicating that they were enclosing the TWCC-69 of Dr. Singleton. This letter is dated December 20, 2001. Ms. Johnson testified that pages 21-26 of Exhibit 3 indicate that K-Clinic had the report as of November 26, 2001, as indicated by the faxed header on those pages, this indicates the report was sent prior to that time by the Provider. The ALJ agrees and finds that the Commission failed to rebut this evidence.

File No. 13. Petitioner contends it did not receive notice of this violation until four days prior to the hearing and it should not be considered due to lack of notice. The ALJ notes that TWCC Exhibit 3, p. 9 contains a Notice of Violation relating to this matter. This notice is dated June 3, 2002. It is not signed, as are none of the other notice of violations in TWCC Exhibit 3. Mr. Shannon testified that the Commission’s records show that a signed NOV was not returned. Tr. p. 151. The ALJ finds that appropriate notice was not given to Dr. Singleton of this violation. Consequently, it will not be considered for purpose of this hearing.[11]

File No. 18. Petitioner asserts that pages 193-195 of Petitioner’s Exhibit 5 demonstrate that the TWCC-69 was faxed to the adjuster on December 20, 2001. The ALJ finds that these documents do not establish that the report was faxed to the adjuster on December 20, 2001. Page 193 indicates that something was faxed to the adjuster, but it does not indicate that it was the TWCC-69. Page 194 appears to be a cover sheet of a fax addressed to Barbara Tucker dated 12-20-01, but there is no evidence this document was actually sent. The ALJ finds that the Commission met its burden of proof on File No. 18.

File No. 21. Petitioner claims that Petitioner’s Exhibit 4[12] contains evidence that the TWCC-69 was timely filed. Again, the ALJ finds that the notes indicating “mailed to all” on 12-6-01 do not establish that the TWCC-69 was mailed on that date. The documents on pages 283 and 284 also fail to establish when the TWCC-69 was sent by provider; presumably, it was sent before December 11th based on the information on these pages. Further, page 363 indicates that the IME of Dr. Singleton was received by the carrier on December 14, 2001, although it notes the possibility of an earlier fax. This possibility seems likely, given the information on pages 283 and 284; however, this still does not establish the date the report was sent. The ALJ finds that the Commission met its burden of proof on this file.

File No. 22. Petitioner relies on Petitioner’s Exhibit 7, p. 293 to show that the report was faxed to IMED, the agent for the carrier, on December 5, 2001. Ms. Johnson testified that “Besty,” referred to on page 290 of Exhibit 7, is an employee of IMED, who acts as an agent for the insurance carrier. Ms. Johnson testified that the document was faxed on December 5, 2001 to IMED. However, there is no evidence that Ms. Johnson has personal knowledge that it was indeed faxed, particularly since she is not the one to fax the reports. Consequently, the ALJ finds that the Commission met its burden of proof on this file.

File No. 25.In this matter, Petitioner contends that pages 94 and 108 of Petitioner’s Exhibit 8 demonstrate that a fax of the report was sent to the carrier on November 1, 2001. Page 94 contains handwritten notations that APA was faxed to the adjuster and mailed to all. Page 108 is a copy of a phone bill from Dr. Singleton’s office showing that a call on November 1, 2001, was placed to 281-877-3982. This number corresponds to the phone number on a faxed cover sheet found on page 95 of the exhibit. The remarks on the page indicate “Report seen 10/24/01.” This date corresponds to the date of the exam. Pet. Ex. 8, pp. 96, 97. Additionally, Ms. Johnson testified that the report had been faxed to the carrier on three occasions and mailed to them once. Further, Ms. Johnson testified that the carrier had paid the bill for the examination and that the TWCC-69 and report are attached to the bill. The ALJ finds that the Petitioner established that the TWCC-69 was sent to the Carrier on November 1, 2001, one day before the due date. Consequently, there is no violation resulting from this file number.

File No. 31. Petitioner asserts that pages 225 and 227, and Ms. Johnson’s testimony, demonstrate that the TWCC-69 was faxed to the carrier on October 20, 2001. However, these pages consist of a fax cover sheet that contains no indicia that it was actually sent and merely notes that something was faxed to the adjuster and “mailed to all.” There is no evidence that this refers to the TWCC-69. Ms. Johnson does not state that she actually knows that the document (and the report) were faxed, merely that it appears that they were. The ALJ finds that the Commission met its burden of proof on this file number.

File No. 43. Petitioner claims that this file should not be considered due to the Commission’s failure to name it in the SOMA. The SOMA contains a listing of the violation numbers and lists No. 88745 twice, followed by 88747. The ALJ believes that this is an obvious typographical error and that the second number 88745 should have read 88746, as asserted by counsel for the Commission. Petitioner’s allegations that good cause exist for the untimely filing in this file number is addressed earlier.

File No. 63. According to Petitioner, page 86 of Petitioner’s Exhibit 11 demonstrates that the report was mailed to the carrier on December 20, 2001. Page 86 consists of similar notations as seen in the previous files of “mailed to all.” There is no evidence what was actually mailed. The ALJ finds that the Commission met its burden of proof on this file number.

File No. 66. Petitioner claims that this report was timely as shown in Exhibit 10, pages 133, and 367 through 381. A review of these pages shows that pages 133 and 367 both appear to be a copy of a fax cover sheet dated November 26, 2001, addressed to Mary Redd with the comments: “Report seen 11/14/01 - N.G.” Pages 368 through 381 contain the report of medical evaluation. Ms. Johnson testified that the fax footer on pages 368, 369, and 370 showing the date of January 27, 1900, was due to the fax machine not being programmed to display the correct date. She stated that she believed the actual date of the fax was November 26, 2001. Ms. Johnson’s explanation of the date she believes the report was faxed is simply not sufficient upon which to conclude that the report was timely. The ALJ finds that the Commission met its burden of proof on this file number.

According to 28 TAC §130.1(d)(2), the report of medical evaluation (TWCC-69) is required to be filed with the commission, employee, employee’s representative, and the insurance carrier no later than the seventh working after the later of the date of the certifying examination or the receipt of all of the medical information required by rule. The Commission requires that the TWCC-69 shall be filed with the carrier by facsimile or electronic transmission.[13] 28 TAC §130.1(d)(3)(A). Further, the certifying doctor is required to maintain the original copy of the RME and documentation of, among other things, the date, addresses, and means of delivery that the report was transmitted or mailed by the certifying doctor. Rule 130.1(e)(3). In this case, the ALJ finds that the Commission met its burden of proving that Dr. Singleton did not timely file TWCC-69s in Filing Numbers 1, 9, 18, 21, 22, 31, 34, 38, 43, 63, and 66.

After reviewing all the evidence in this case, the ALJ finds that Dr. Singleton failed to timely comply with Rule 130.1 in eleven instances and an administrative penalty of $635.00 should be assessed against him.[14]

III.FINDINGS OF FACT

  1. Dr. Wright Singleton is authorized by the Commission to conduct medical evaluations of Claimants who have sustained an injury covered by workers’ compensation insurance.
  2. Dr. Singleton is required to submit reports of medical evaluations on a Commission form (TWCC-69) within seven days of the examination to the commission, employee, employee’s representative, and the insurance carrier.
  3. On November 16, 2001, Dr. Singleton performed a medical evaluation on Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on that date. The Carrier received the TWCC-69 on December 5, 2001. The report was one day late.
  4. On October 16, 2001, Dr. Singleton performed a medical evaluation on Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reach maximum medical improvement on that date. The Carrier received the TWCC-69 on October 26, 2001. The report was one day late.
  5. On December 14, 2001, Dr. Singleton performed a medical evaluation of Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on that date. The Carrier received the TWCC-69 on December 29, 2001. The report was one day late.
  6. On November 28, 2001, Dr. Singleton performed a medical evaluation of Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on that date. The Carrier received the TWCC-69 on December 14, 2001. The report was one day late.
  7. On November 27, 2001, Dr. Singleton performed a medical evaluation of Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on that date. The Carrier received the TWCC-69 on December 20, 2001. The report was fourteen days late.
  8. On October 2, 2001, Dr. Singleton performed a medical evaluation of Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on that date. The Carrier received the TWCC-69 on November 14, 2001. The report was thirty-four days late.
  9. On December 7, 2001, Dr. Singleton performed a medical evaluation of Claimant ___. and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on September 28, 2001. The Carrier received the TWCC-69 on December 19, 2001. The report was one day late.
  10. On November 7, 2001, Dr. Singleton performed a medical evaluation of Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on that date. The Carrier received the TWCC-69 on November 21, 2001. The report was five days late.
  11. On December 5, 2001, Dr. Singleton performed a medical evaluation of Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on June 4, 2001. The Carrier received the TWCC-69 on December 19, 2001. The report was five days late.
  12. On December 14, 2001, Dr. Singleton performed a medical evaluation of Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on that date. The Carrier received the TWCC-69 on January 7, 2002. The report was five days late.
  13. On November 14, 2001, Dr. Singleton performed a medical evaluation of Claimant ___ and prepared a Report of Medical Evaluation (TWCC-69), finding that Claimant had reached maximum medical improvement on that date. The Carrier received the TWCC-69 on December 3, 2001. The report was one day late.
  14. Petitioner has no prior record of enforcement action taken against him by the Commission for failing to timely file TWCC-69s.

IV.CONCLUSIONS OF LAW

  1. The Texas Workers’ Compensation Commission has jurisdiction to decide the issues presented pursuant to the Texas Workers’ Compensation Act (Act), Tex. Lab. CodeAnn.§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 § 413.034 of the Act and Tex. Gov’t Code ch. 2003.
  3. A health care provider commits an administrative violation if he fails or refuses to timely file required reports. § 415.0035(b)(1).
  4. Reports of medical evaluation are required to be filed with the commission, employee, employee’s representative, and the insurance carrier no later than seven working days after the later of the date of the certifying examination or the receipt of all of the medical information required by this section. 28 Tex. Admin. Code (TAC) §130.1(d)(2).
  5. A certifying doctor shall file the report of medical evaluation with the insurance carrier by facsimile or electronic submission. 28 TAC §130.1(d)(3).
  6. A certifying doctor is required to maintain the original copy of the report of medical evaluation and documentation of the date, addresses, and means of delivery that reports required under §130.1 were transmitted or mailed by the certifying doctor. 28 TAC §130.1(e)(3).
  7. Based on the above Findings of Fact and Conclusions of Law, Petitioner failed to timely file TWCC 69s, failed to file the reports of medical evaluation with the insurance carrier by facsimile or electronic submission, and failed to maintain the documentation required to show the transmission of the reports of medical evaluation.
  8. Based on Findings of Fact Nos. 3, 4, 5, 6, 9, and 13, Petitioner should be assessed a warning from the Commission.
  9. Based on Findings of Fact Nos. 7, 8, 10, 11, and 12, Petitioner should be assessed an administrative penalty in the amount of $635.00.

ORDER

IT IS THEREFORE, ORDERED that Dr. Wright Singleton be found to have violated Commission Rule 130.1 on eleven occasions for the audit of December 2001 and should be assessed an administrative penalty of $635.00.

Signed this December 15, 2003.

SUZANNE FORMBY MARSHALL
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

Exhibit A

Alleged Violations of Dr. Wright Singleton

Audit File No.

Date of Exam

Due Date

Date Deemed Sent

Days Late

Proposed Penalty

1 (#88729)

11-16-01

11-29-01

11-30-01

1

Warning

9 (#88732)

10-16-01

10-25-01

10-26-01

1

Warning

11 (#88734)

11-08-01

11-19-01

12-01-01

12

$ 124

13 (#88735)

11-16-01

11-29-01

12-01-01

2

$ 74

18 (#88737)

12-14-01

12-28-01

12-29-01

1

Warning

21 (#88738)

11-18-01

12-07-01

12-08-01

1

Warning

22 (#88739)

11-17-01

12-06-01

12-20-01

14

$ 134

25 (#88740)

10-24-01

11-02-01

not sent

$ 324

31 (#88742)

10-02-01

10-11-01

11-14-01

34

$ 234

34 (#88743)

12-07-01

12-18-01

12-19-01

1

Warning

38 (#88745)

11-07-01

11-16-01

11-21-01

5

$ 89

43 (#88746)

12-05-01

12-14-01

12-19-01

5

$ 89

58 (#88747)

11-27-01

12-06-01

12-05-01

0

0

63 (#88750)

12-14-01

12-28-01

1-02-02

5

$ 89

66 (#88751)

11-14-01

11-27-01

11-28-01

1

Warning

Total: 15

$ 1,157

  1. Although Dr. Singleton is designated as the Petitioner and the Commission is designated as the Respondent, the Commission bears the burden of proof in this matter by a preponderance of the evidence. According to the Commission’s counsel, this is the first of this type of compliance action to be brought by the Commission.
  2. The ALJ notes that this hearing was unduly complicated by several factors: 1) the provider’s counsel and witness appeared by telephone throughout the eight hour hearing; 2) the Commission had not provided copies of their proposed exhibits to the provider’s counsel prior to the hearing, despite SOAH Rule 155.45(d) requiring service of exhibits at least three days prior to hearing when a telephone appearance is made; and 3) the confusion and amount of time spent by counsel for both sides making sure that they were referring to the same documents resulting from the Commission’s failure to provide exhibits to opposing counsel prior to the hearing.
  3. Petitioner’s motion was filed at 4:22 p.m. on the Friday before the hearing set for Monday, September 8, at 9:00 a.m.
  4. Counsel further addressed this issue in their written closing argument.
  5. The record in this case consisted of the following exhibits: Commission’s audit of Dr. Singleton and final report (TWCC Ex. 1); a revised penalty matrix (TWCC Ex. 2); copies of the notices of violations letters sent to Dr. Singleton (TWCC Ex. 3); a summary of the audit of TWCC-69's (TWCC Ex. 4); a report of medical evaluation, TWCC 69, dated May 8, 200 (TWCC Ex. 5); records relating to M.L. (Pet. Ex. 1); records relating to T.M. (Pet. Ex. 2); records relating to D.C. (Pet. Ex. 3); records relating to K.B. (Pet. Ex. 4); records relating to L.Y. (Pet. Ex. 5); records relating to L.V. (Pet. Ex. 6); records relating to S.V. (Pet. Ex. 7); records relating to A.C. (Pet. Ex. 8); records relating to K.P. (Pet. Ex. 9); records relating to N.G. (Pet. Ex. 10); records relating to M.F. (Pet. Ex. 11); and records relating to M.P. (Pet. Ex. 12). Additionally, testimony was presented by Theresa Coyle, auditor for the Commission, Calvin Shannon, manager of the Commission’s medical compliance team, and Kathryn Johnson, office manager for Dr. Wright Singleton.
  6. The audit was identified as T69-02-0048.
  7. It is undisputed that Dr. Singleton has no prior enforcement action against him by the Commission.
  8. Subsection (f) was added to §415.0035 by House Bill 2600, effective September 1, 2002.
  9. Given Mr. Shannon’s testimony, the ALJ does not know why the notice of violation letters refer to repeated violations as the basis for a penalty of $ 10,000.
  10. Although there was evidence on Filing No. 58, the Commission dismissed this file number from this case since the evidence indicated that it had been timely filed. Tr. pp. 142, 147-148.
  11. The Commission did not introduce any evidence proving that the Notice of Violations were sent or received by Dr. Singleton in any of the file numbers made part of this case, nor did the provider make objections to the evidence on this basis, other than as mentioned in this decision.
  12. Petitioner’s Exhibit 6 is the correct exhibit.
  13. The doctor may file the RME with the Commission, the employee and the employee’s representative by facsimile or electronic transmission if made available to the doctor; otherwise, he can file the report by other verifiable means.
  14. TWCC Exhibit 2 also includes information related to the settlement offer made by TWCC. Although the ALJ does not consider the settlement offer to be evidence, she does note that the settlement offer for the alleged violations prior to hearing totaled $ 657.00.
End of Document
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