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Title: 

454-09-2766-m4

Date: 

May 29, 2009

Type: 

Medical Fees

454-09-2766-m4

DECISION AND ORDER

Texas Orthopedic Hospital (Petitioner) filed this case to protest a decision by a Medical Fee Dispute Resolution (MFDR) Officer of the Texas Department of Insurance, Division of Workers’ Compensation (DWC or Division) that found its request for an MFDR hearing on a 2008 fee dispute was not timely. Petitioner sought a remand of the case to the Division to consider the merits of its request. The State Office of Risk Management (SORM) contended that the MFDR decision was correct in ruling the request to be untimely.

The facts were undisputed. Based on the legal arguments presented by the parties, the ALJ concluded that Petitioner’s request for an MFDR review was filed timely under the Division’s rule for computation of time. The ALJ remands this claim to the Division for review of the merits of the claim.

I. PROCEDURAL HISTORY, NOTICE AND JURISDICTION

The hearing on this case was conducted on April 2, 2009, in Austin, Texas, and the record closed that day. Petitioner was represented by Scott C. Hilliard, attorney, and SORM was represented by J. Redd Tripp, attorney for SORM.

Notice and jurisdiction issues were not disputed and are set forth in the Findings of Fact and Conclusions of Law below.

II. DISCUSSION

A. Applicable Law

Petitioner contended that the relevant rule for determining the timeliness of its filing is the Division’s general rule regarding computation of time for deadlines for filings under the workers’ compensation system and, that under that rule, the filing was timely. SORM contended that the limitations period in the rule regarding MFDR should prevail over a general rule regarding the computation of time and, that under that rule, the filing was late. The parties were in agreement that, if the filing were to be ruled to have been timely, the appropriate remedy is remand to the Division for determination of the merits of Petitioner’s claim.

The Division’s rule, Rule 102.3, regarding computation of time states as follows:

(a) Due dates and time periods under this Act shall be computed as follows:

  1. computing a period of days. In counting a period of time measured by days, the first day is excluded and the last day is included.
  2. computing a period of months. If a number of months is to be computed by counting the months from a particular day, the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period ends on the last day of that month.
  3. unless otherwise specified, if the last day of any period is not a working day, the period is extended to include the next day that is a working day.

(b) A working day is any day, Monday-Friday, other than a national holiday as defined by Texas Government Code, §662.003(a) and the Friday after Thanksgiving Day, December 24th and December 26th. Use in this title of the term “day,” rather than “working day” shall mean a calendar day.

(c) Normal business hours in the Texas workers’ compensation system are 8:00 a.m. to 5:00 p.m. Central Standard Time with the exception of the Commission’s El Paso field office whose normal business hours are 8:00 a.m. to 5:00 p.m. Mountain Standard Time.

(d) Any written or telephonic communications received other than during normal business hours on working days are considered received at the beginning of normal business hours on the next working day.

(e) Unless otherwise specified by rule, any written or telephonic communications required to be filed by a specified time will be considered timely only if received prior to the end of normal business hours on the last permissible day of filing.

(f) If there is a conflict between this rule and a specific provision of another rule that is applicable to a specific type of benefit, the other rule prevails.[2]

The rule regarding the filing of requests for MDR requires that a request be filed within one year of the date of service. Rule 133.307.states:

(c) Request. Requests for medical dispute resolution (MDR) shall be filed in the form and manner prescribed by the Division. Requestors shall file two legible copies of the request with the Division.

(1) Timelineness. A requestor shall timely file with the Division’s MDR Section or waive the right to MDR. The Division shall deem a request to be filed on the date the MDR Section receives the request.

(A) A request for medical fee dispute resolution that does not involve issue identified in subparagraph (B) of this paragraph shall be filed no later than one year after the date(s) of service in dispute.[3]

B. Facts and Positions

The parties agreed to the relevant facts in this case, all of which concerned the sequence of events surrounding the delivery of Petitioner’s request for MFDR to the Division in early January 2009. Petitioner rendered hospital outpatient services to Claimant ___ on _____. SORM denied in part Petitioner’s request for payment for those services; a total of 8165.35 in fees was in dispute.[4] Petitioner, located in Houston, turned over its MFDR request on the disputed fees to Lone Star Overnight (LSO) at 5:30 p.m. on January 9, 2009, a Friday.[5] It was properly addressed. It is unclear whether LSO made any delivery attempts during the weekend, but LSO’s tracking records show that the MFDR request was delivered to the Division at 10:04 a.m. on January 12, 2009, a Monday. The Division stamped it as received on January 12, 2009.[6] On January 25, 2009, the Division ruled that Petitioner’s filing was late under Rule 133.307(c) (1) (A) so awarded no additional compensation to Petitioner.[7]

Petitioner did not dispute that the MFDR request must be filed within one year of the date of service at issue.[8] However, Petitioner contended that Rules 102.3 and 133.307 must be construed together in order to determine when that year expires. In this case, the date of service was January 11, 2008, so the expiration of the filing year would be January 11, 2009. In 2009, January 11 fell on a Sunday, so under Rule 102.3(a)(3), the next working day after the deadline would have been January 12, 2009, a Monday. Petitioner also contended that using the receipt date without taking into consideration the computation rule would open the door to the possible outcome of unfettered discretion by the Division in determining when to stamp requests as received.

SORM contended that Rule 102.3 was a general rule and that Rule 133.307 was a specific rule so, that under the laws of statutory construction, the specific should control over the general.[9] Specifically, SORM contended that the exceptions provision that appears in Subparagraph (e) of Rule 102.3 should apply as Rule 133.207 constituted a special filing rule of the kind contemplated by that exceptions provision. Applying the rule in that manner results in the conclusion that the filing was late because, in order to have been stamped as received by January 11, 2009, the filing would have to have been received no later than January 9, 2009, the last business day before the expiration of the year. Neither party asserted that the Division could have received filings on a weekend. SORM also contended that public policy reasons supported the strict interpretation in that failing to allow for due dates falling on a weekend or holiday in the case of short filing periods could work a hardship on parties. However, SORM argued, in the case of a year-long filing period, the length of the filing period gives aggrieved parties ample time to meet the deadline.

C. Analysis

SORM’s argument that there are sound policy reasons for treating long and short term filing periods differently does not have merit. In circumstances where a rule violation constitutes a waiver and cuts off a party’s right to further due process, the ALJ cannot agree lack of clarity about when a rule should be applied would further the purposes of the Workers’ Compensation Act. In order to have adequate notice of the extent and limitations on their due process rights, parties must be able to get all information on filing deadlines by direct reference to the rules.[10]

Petitioner’s argument linking the application of the computation of time rule and the scope of staff discretion on processing incoming MFDR requests does not have merit. These issues are entirely different and only the first is at issue here.

The exceptions passage, Subparagraph (e), pertains to the time of the day on which filing is considered timely. That is, to be received on that day, a filing must arrive before the end of the normal business hours. Rule 133.307 does not vary the general time computation rule in regard to timeliness of any filing on the last permissible day.

The code construction principle most applicable to this case is the following:

Sec. 311.026. SPECIAL OR LOCAL PROVISION PREVAILS OVER GENERAL.

(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.

(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevails.[11]

Although SORM posited a conflict between the one-year filing period in Rule 133.307 and the general time-computation rules in Rule 102.3, the ALJ is unable to discern such a conflict. In the event the last permissible day to file an MFDR request falls on a day that is not a working day — a term that is defined in the rule — then the filing period is extended to the next day that is a working day. To hold otherwise would shorten the filing period for those requestors whose year filing period ends on a non-working day.

Neither party developed the point fully, but the interpretation given to these provisions by the Division is also a necessary element to be considered. The courts afford great deference to an agency’s long-standing interpretation of its own rules. Notwithstanding that, in this particular case the agency’s statement, the MFDR Decision, does not directly address the point of procedure that Petitioner raised. While the MFDR Decision applied Rule 133.307 according to its terms, there is nothing in the text of the MFDR Decision that reveals whether the hearing officer considered the effect of the general computation rule or states how the agency may have applied it in the past. Therefore, the ALJ concluded that the MFDR Decision did not constitute a ruling or agency statement of the applicability of Rule 102.3 to requests for MFDR under Rule 133.307 that should govern the outcome of this contested case.

In summary, the ALJ concluded that the general computation rule can be harmonized with the year-long period for filing an MFDR request by applying the non-working-day extension when the last permissible filing date falls on a non-working day as defined in Rule 103.2. Applying that provision to the facts in this case leads to the conclusion that Petitioner’s request for MFDR was timely filed. Based on that conclusion, this case should be remanded to the Division for determination of the merits of Petitioner’s claim.

III. FINDINGS OF FACT

  1. Claimant ____ suffered a compensable on-the-job injury on ____, while employed by the ____.
  2. On January 11, 2008, Texas Orthopedic Hospital (Petitioner) provided medical services for the treatment of Claimant’s compensable injury valued by them at $9,618.75 (the claim).
  3. In 2007, the State Office of Risk Management (SORM) was the workers’ compensation provider for employees of the _____.
  4. SORM agreed to pay $1,453.40 on the claim, but denied payment of the balance.
  5. Petitioner sought a Medical Fee Dispute Resolution (MFDR) on the disputed balance of the claim, $8,165.35.
  6. On January 9, 2009, Petitioner prepared its request for MFDR, including Form DWC060, and engaged Lone Star Overnight (LSO) to deliver it to the Texas Department of Insurance, Division of Workers’ Compensation (DWC or Division) at the address specified for delivery of MFDR requests.
  7. January 9, 2009, was a Friday.
  8. The address specified by the Division for delivery of request for MFDR disputes is 7551 Metro Center Drive, Suite 100 (MS-48), Austin, Texas 7844-1609.
  9. LSO delivered Petitioner’s request to the Division at 7551 Metro Center Drive, Suite 100 (MS-48), Austin, Texas 7844-1609 at 10:04 a.m. on January 12, 2009, a Monday.
  10. Petitioner’s request for MFDR was stamped as received on January 12, 2009, by the Division.
  11. On January 26, 2009, Martha Luevano, the manager of MFDR, ruled that Petitioner’s request was not timely, so awarded no additional compensation to Petitioner on the claim.
  12. Petitioner timely appealed the MFDR decision to the State Office of Administrative Hearings (SOAH).
  13. On February 25, 2009, the Division issued notice of the contested case hearing.
  14. The notice of hearing contained a statement of the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing was to be held; a reference to the particular sections of the statutes and rules involved; and a short, plain statement of the matters asserted.
  15. The hearing was conducted on April 2, 2009, by Cassandra. J. Church at the SOAH hearing facility in Austin, Texas, and the record closed that day.
  16. Petitioner was represented by Scott C. Hilliard, attorney, and SORM was represented by J. Redd Tripp, attorney for SORM.

IV.CONCLUSIONS OF LAW

  1. SOAH has jurisdiction over matters related to the hearing in this proceeding, including the authority to issue a Decision and Order, pursuant to Tex. Lab. Code Ann. § 413.031.
  2. Adequate and timely notice of the hearing issued by the Division conformed to the requirements of Tex. Gov’t CodeAnn. §§ 2001.051 and 2001.052.
  3. In 2008, SORM denied, in part, a claim for payment submitted by Petitioner for services rendered to Claimant S. R. on January 11, 2009, giving rise to a medical fee dispute subject to resolution by the Division’s MFDR process, as provided in 28 Tex. Admin. Code ch. 133, subch. D.
  4. Petitioner’s request for an MFDR hearing on a dispute relating to services provided on January 11, 2008, was due on January 11, 2009, pursuant to 28 Tex. Admin. Code § 133.307(c).
  5. January 11, 2009, was a non-working day within the meaning of 28 Tex. Admin Code § 102.3(b).
  6. Petitioner’s request for an MFDR that was filed at 10:04 a.m. on January 12, 2009, was timely under the extension provided by 28 Tex. Admin. Code § 102.3(a) (3).
  7. Based on the above Findings of Fact and Conclusions of Law, Petitioner met its burden of proof to show that it was entitled to an MFDR hearing on the claim.
  8. ORDER

IT IS THEREFORE, ORDERED that the medical fee dispute filed on January 12, 2009, by Texas Orthopedic Hospital be remanded to the Texas Department of Insurance, Division of Workers’ Compensation for further proceedings on the merits of the claim (MFDR No. M4-09-5119-01).

Signed May 29, 2009.

CASSANDRA J. CHURCH
Administrative Law Judge
STATE OFFICE OF ADMINISTRATIVE HEARINGS

  1. 28 Tex. Admin. Code § 102.3.↑
  2. 28 Tex. Admin. Code § 133.307(c). Subparagraph (B) addresses cases in which compensability, extent of injury, liability dispute, medical necessity, or refund matters are pending. None are applicable here.↑
  3. Pet. Ex. 2.↑
  4. Pet. Ex. 3.↑
  5. SORM Ex. 1 (SORM submitted the copy file stamped by the Division.)↑
  6. Pet. Ex. 2.↑
  7. Petitioner stated that he was not arguing for application of the “mailbox rule,” i.e, that putting a request into a mailbox or the hands of a delivery service constituted filing.↑
  8. As well as being applicable to statutes, the Code Construction Act is applicable to administrative rules adopted by agencies. Tex. Gov’t Code Ann. § 311.002.↑
  9. See, i.e.,Ackerson v. Clarendon Nat. Ins. Co., 168 S.W.3d 273, 276. (Tex. App .— Austin, 2006, writ denied).↑
  10. Tex. Gov’t Code Ann. § 311.026.↑