Tracey L. Farmer-Cummings, Appellant v. Personnel Pool of Platte County, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Tracey L. Farmer-Cummings, Appellant v. Personnel Pool of Platte County, Respondent. Case Number: WD60894 Handdown Date: 11/26/2002 Appeal From: Labor and Industrial Relations Commission Counsel for Appellant: Kevin D. Meyers Counsel for Respondent: Jo S. Warmund Opinion Summary: Tracey L. Farmer-Cummings appeals the labor and industrial relations commission's award of $118,581.99 in past medical benefits. She argues that the commission's award is not supported by substantial evidence, is against the weight of the evidence, and in making its award, the commission acted in excess of its powers. AFFIRMED. Division Two holds: The commission did not err in limiting Personnel Pool's liability for past medical benefits to the charges for which Medicaid, the private insurer, or Farmer-Cummings actually were held liable. Farmer-Cummings failed to prove that she remained responsible for charges written off by health care providers. The written-off charges, therefore, cannot properly be deemed "fees and charges" for which she was entitled to reimbursement under section 287.140, RSMo 2000. Citation: Opinion Author: Patricia Breckenridge, Judge Opinion Vote: AFFIRMED. Lowenstein and Smart, J.J., concur. Opinion: Tracey L. Farmer-Cummings appeals the Commission's award of $118,581.99 in past medical benefits. Ms.

Farmer-Cummings argues that the Commission's award is not supported by substantial evidence, is against the weight of the evidence, and in making its award, the Commission acted in excess of its powers. This court finds that the Commission's determination that Ms. Farmer-Cummings is not entitled to compensation for charges written off by health care providers is supported by substantial evidence and is not against the weight of the evidence. This court further finds that the Commission did not act in excess of its powers. The award of the Commission is affirmed. Factual and Procedural Background In a prior appeal of this case, Farmer-Cummings v. Future Foam, Inc., 44 S.W.3d 830, 835 (Mo. App. 2001), this court affirmed the Commission's determination that Ms. Farmer-Cummings was eighty percent permanently partially disabled from the occupational disease, asthma, which she contracted during her employment with Personnel Pool in October through November 1991. Therefore, this court affirmed the Commission's decision to award her permanent partial disability benefits. Id. This court reversed, however, the Commission's decision to deny Ms. Farmer-Cummings' request for past medical benefits because this court found that the evidence was sufficient to prove that Personnel Pool was liable for such benefits. Id. at 837. The cause was remanded, and the Commission was directed to determine the proper amount of past medical benefits to be awarded. Id. On remand, the Commission determined that Ms. Farmer-Cummings was entitled to $118,581.99 in past medical benefits and prejudgment interest on $1,480.94 of past medical bills that Ms. Farmer-Cummings had personally paid. Ms. Farmer-Cummings filed this appeal. Standard of Review On appeal, this court will not disturb the Commission's award unless the Commission acted without or beyond its power, the award was procured by fraud, the facts found do not support the award, or the award is not supported by sufficient competent evidence in the record. Section 287.495.1, RSMo 2000.(FN1) To determine "whether the Commission could have reasonably made its findings and award upon consideration of all the evidence before it," this court uses a two-step process: In the first step, the court examines the whole record, viewing the evidence and all reasonable inferences drawn therefrom in the light most favorable to the award, to determine if the record contains sufficient competent and substantial evidence to support the award. If not, the Commission's award must be reversed. If there is competent and substantial evidence supporting the award, the court moves to the second step, where it views the evidence in the light most favorable to the award, but must consider all evidence in the record, including that which opposes or is unfavorable to the award, take account of the overall effect of all of the evidence, and determine whether the award is against the overwhelming weight of the evidence. Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo. App. 1995).

In reviewing the Commission's award, this court cannot substitute its judgment regarding questions of fact for that of the Commission. Id. This court, however, is not bound by those findings of the Commission which are clearly the interpretation or application of law. Id. The claimant in a workers' compensation proceeding has the burden of proving all elements of the claim to a reasonable probability. Ransburg v. Great Plains Drilling, 22 S.W.3d 726, 730 (Mo. App. 2000). Written-Off Charges Not Part of Actual Medical Expenses Although Ms. Farmer-Cummings raises four points on appeal, the issue raised in all of her points is that the Commission erred by failing to include in its award of past medical benefits charges that had been written off by health care providers. An employee is entitled to medical treatment that is reasonably required after a compensable injury. Section 287.140.1. This treatment must be provided at the employer's expense. Id. When an employer denies liability for the employee's claim, the employer "necessarily denies liability for medical aid to the employee and the employee may be entitled to an award for the cost of medical services." Wiedower v. ACF Indus., Inc., 657 S.W.2d 71, 74 (Mo. App. 1983). In this case, this court has already determined that Ms. Farmer-Cummings is entitled to an award of past medical benefits from Personnel Pool. Farmer-Cummings, 44 S.W.3d at 837. Ms. Farmer-Cummings asserts that the amount of past medical benefits to which she is entitled is $175,241.32. Ms. Farmer-Cummings arrived at this total by preparing what she claims was a summary of her medical bills, which she offered into evidence as an exhibit along with her medical bills in the hearing before the ALJ. Personnel Pool did not object to the admission of her summary or the medical bills. The Commission did not award Ms. Farmer-Cummings the full $175,241.32 she requested, however. Rather, the Commission examined each of Ms. Farmer-Cummings' medical bills and determined that numerous amounts Ms. Farmer- Cummings listed in her summary did not match the amounts listed in the bills. Moreover, the Commission found that the actual medical bills showed that the providers wrote off a significant amount of charges for which Ms. Farmer-Cummings was seeking reimbursement. Specifically, the Commission found that the providers wrote off charges totaling $33,902.53 because they were not covered by Medicaid; the providers wrote off charges totaling $4,910.92 because they were not covered by Ms. Farmer-Cummings' private insurer; and the providers wrote off charges totaling $824.27 because either the bills for those charges were not timely filed to Medicaid, the provider gave Ms. Farmer-Cummings a patient discount, or the charges were deemed too old to collect. Because there was no evidence that Ms. Farmer-Cummings would ever be responsible for the charges written off of the bills, the Commission limited Personnel Pool's liability for past medical benefits to the charges for which Medicaid, the private insurer, or Ms. Farmer-Cummings were actually held liable. Adding

these amounts together, the Commission determined the proper amount of past medical benefits to be $118,581.99.(FN2) Ms. Farmer-Cummings first argues that the Commission's decision was not supported by substantial evidence and was against the weight of the evidence because she proved that the $175,241.32 amount she requested was reasonable and necessary. Section 287.140.3, RSMo Cum. Supp. 1991, provides that all of the fees and charges for medical treatment "shall be fair and reasonable, shall be subject to regulation by the division or the commission, . . . and shall be limited to such as are fair and reasonable for similar treatment of other similarly injured persons." The Supreme Court has interpreted this provision to mean that where the employee identifies medical bills and testifies that the bills relate to and are a product of her injury, and the bills relate to the services provided as demonstrated by the medical records, there is a sufficient factual basis for the Commission to award compensation for past medical benefits. Martin v. Mid-Am. Farm Lines, Inc., 769 S.W.2d 105, 111-12 (Mo. banc 1989). The employer can then challenge the reasonableness or fairness of the bills, or the bills' relationship to the injury. Id. at 112. When the employer fails to challenge the reasonableness or fairness of the bills after the employee makes a sufficient factual basis for compensation, the Commission's failure to award compensation for past medical expenses has been found to be unsupported by substantial evidence. Id. Relying on this principle, Ms. Farmer-Cummings argues that since Personnel Pool failed to challenge the reasonableness, fairness, or necessity of the medical bills or the medical bill summary, she was entitled to the full amount she requested. Ms. Farmer-Cummings misinterprets the Commission's award. The reason the Commission did not award Ms. Farmer-Cummings the full amount she requested was not because it found the medical bills to be unreasonable, unfair, or unnecessary. In fact, in its award, the Commission specifically cited Martin and stated that Ms. Farmer-Cummings testified that each of her expenses were incurred in connection with her work-related injury and Personnel Pool did not object to those expenses on the basis that the expenses were unreasonable or unnecessary. Thus, the Commission implicitly acknowledged that, under Martin, Ms. Farmer-Cummings presented a sufficient factual basis that the medical bills she incurred were reasonable, fair, and necessary to treat her injury. Instead, the reason the Commission did not award Ms. Farmer-Cummings the full amount she requested was because the Commission examined the medical bills and found that the bills showed that the charges for which Ms. Farmer-Cummings, Medicaid, and the private insurer were actually held liable were significantly less than the amount for which Ms. Farmer-Cummings sought reimbursement. In some instances, the Commission determined that the discrepancy between the charges listed on Ms. Farmer-Cummings' summary of her medical bills and the charges as they appeared on the actual medical bills was due to a clerical error or the erroneous inclusion of charges relating to medical

treatment received by someone other than Ms. Farmer-Cummings. More often, however, the Commission found that the medical bills showed that health care providers wrote off charges. Several providers wrote off charges not covered by Medicaid or Ms. Farmer-Cummings' private insurer. Additionally, several providers wrote off charges that had been rejected by Medicaid because the providers failed to file their claims in a timely manner with Medicaid. One provider wrote off portions of its charges as "patient discounts" and "old charges." The medical bills deducted the written-off charges from the total amount due. Thus, the bills on which the written-off charges appeared did not indicate that Ms. Farmer-Cummings, Medicaid, or the private insurer were responsible for the written-off charges. This court has approved not holding an employer liable for written-off charges on medical bills. In Lenzini v. Columbia Foods, 829 S.W.2d 482, 487 (Mo. App. 1992), this court reviewed as a matter of plain error whether an employer was responsible for charges that had been written off by health care providers. First, this court found that the written-off charges readily appeared from the claimant's own exhibits. Id. Second, this court found that to include as medical expenses charges that had been written off by the providers would be a computational error that would be unjust to ignore. Id. This court, therefore, ordered that the past medical benefits awarded be reduced by the amount of the written-off charges. Id. The fees and charges compensable under section 287.140 must be interpreted to refer to an employee's actual expenses. Ms. Farmer-Cummings had the burden of demonstrating what her actual medical expenses were. See generally Martin, 769 S.W.2d at 111-12. The bills Ms. Farmer-Cummings submitted as proof of her medical expenses indicated that the providers did not hold anyone responsible for the amounts they had written off.(FN3) To allow Ms. Farmer-Cummings to recover more than the amount for which the providers held Ms. Farmer-Cummings, Medicaid, and her private insurer responsible would result in a windfall to Ms. Farmer-Cummings. Ms. Farmer-Cummings argues that the burden was on Personnel Pool, and not her, to show that Personnel Pool was entitled to a credit for the written-off charges. It is true that when an employer is seeking a credit for payments made the burden is on the employer, and not the employee, to show the employer's entitlement to a credit. Ellis v. W. Elec. Co., 664 S.W.2d 639, 643 (Mo. App. 1984). Furthermore, Ms. Farmer-Cummings contends that Personnel Pool was not entitled to a credit under section 287.270. Section 287.270 provides, in pertinent part, that "[n]o savings or insurance of the injured employee, nor any benefits derived from any other source than the employer or the employer's insurer for liability under this chapter, shall be considered in determining the compensation due hereunder[.]" This section has been interpreted as meaning that "[p]ayments from an insurance company or from any source other than the employer or the

employer's insurer for liability for workers' compensation are not credited on workers' compensation benefits." Morris v. Nat'l Refractories & Minerals, 21 S.W.3d 866, 868-69 (Mo. App. 2000). Section 287.270 does not apply to this case, however. The Commission did not give Personnel Pool a credit for payments made by another source. The Commission merely limited Personnel Pool's liability for past medical benefits to Ms. Farmer-Cummings' actual medical expenses as indicated by the bills Ms. Farmer-Cummings submitted. Ms. Farmer-Cummings next argues that the Commission acted in excess of its powers by not awarding her the written-off charges because Personnel Pool stipulated that the correct amount of her past medical benefits was $175,241.32. The Commission acts in excess of its powers if it makes its award on grounds that are not at issue in a case. Lawson v. Emerson Elec. Co., 809 S.W.2d 121, 126 (Mo. App. 1991). Ms. Farmer-Cummings contends that because of the alleged stipulation, the correct amount of her actual expenses was not even at issue in the case and, therefore, the Commission did not have the authority to rule on it. Contrary to Ms. Farmer-Cummings' assertion, however, there was no stipulation as to the correct amount of Ms. Farmer-Cummings' past medical benefits. In its award, the Commission specifically made such a finding, stating: Following remand, the Commission gave the parties thirty days to submit a stipulation of fact with regard to the amount of past medical owed, or to file briefs if there was no agreement on the amount owed. The parties did not reach a stipulation of fact. Claimant and Personnel Pool (employer) filed briefs. Alternatively, Ms. Farmer-Cummings contends that Personnel Pool's failure to object to the admission of the summary of her medical bills in the proceeding before the ALJ constituted a judicial admission that the total amount shown on the summary, $175,241.32, was the correct amount of past medical benefits to which she was entitled. To constitute a judicial admission, a party's statement must be a clear and unqualified admission. See Guyer v. City of Kirkwood, 38 S.W.3d 412, 415 (Mo. banc 2001). This court has discussed the nature and effect of a judicial admission: "A true judicial admission is an admission made in court or preparatory to trial, by a party or his attorney, which concedes for the purposes of that particular trial the truth of some alleged fact so that one party need offer no evidence to prove it, and the other party ordinarily is not allowed to disprove it. It removes the proposition in question from the field of disputed issues in the particular case wherein it is made. It is a substitute for evidence in the sense that it does away with the need for evidence on that subject in that cause. . . ."

Mitchell Eng'g Co., A Div. of Ceco Corp. v. Summit Realty Co., Inc., 647 S.W.2d 130, 140-41 (Mo. App. 1982) (quoting May v. May, 294 S.W.2d 627, 634 (Mo. App. 1956)). Personnel Pool's failure to object to the admission of Ms. Farmer-Cummings' exhibit summarizing her medical bills was not a clear and unqualified admission as to its accuracy or veracity. Nor was the summary, which was labeled "Time Line – Medical Bills," a substitute for the actual medical bills. It

is clear from the record that the amount of past medical expenses for which Personnel Pool is liable was a disputed issue throughout this case, requiring Ms. Farmer-Cummings, as the claimant seeking reimbursement for those expenses, to present proof of those expenses. Therefore, the Commission did not act in excess of its powers by reviewing Ms. Farmer- Cummings' actual medical bills to determine the proper amount of past medical benefits to award her. The medical bills Ms. Farmer-Cummings offered to prove her past medical expenses indicated that the amounts Ms. Farmer-Cummings listed on her summary were erroneous due to clerical errors or due to the fact that providers wrote off and did not hold Ms. Farmer-Cummings responsible for several charges. If Ms. Farmer-Cummings did, in fact, remain responsible for the written-off charges, she had the burden of proving that before the Commission. She did not do so. Therefore, the written-off charges cannot properly be deemed "fees and charges" for which she is entitled to reimbursement under section 287.140. The Commission's award of $118,581.99 is supported by substantial evidence and is not against the weight of the evidence. The award of the Commission is affirmed. All concur. Footnotes: FN1. In a workers' compensation case, the applicable version of the statutes is generally that in effect at the time of the injury. See Tillman v. Cam's Trucking, Inc., 20 S.W.3d 579, 585-86 (Mo. App. 2000). Although the statutes cited in this opinion have been amended since Ms. Farmer-Cummings' 1991 injury, the pertinent portions of the statutes, with the exception of section 287.140.3, have remained substantively unchanged. Therefore, all statutory references are to the Revised Statutes of Missouri 2000, unless otherwise indicated. FN2. At one point in its award, the Commission states that the proper amount of past medical benefits to be awarded Ms. Farmer-Cummings is $124,317.18. Considering the intent of the Commission as evidenced from the award as a whole, this figure is clearly a clerical error, as it mistakenly includes $4,910.92 in insurance write-offs and $824.27 in charges written off due to untimely Medicaid filings, patient discounts, and old charges which the Commission's award indicates are not to be included in Ms. Farmer-Cummings' award of past medical benefits. FN3. The provider that wrote off several charges because they were "old charges" may have at one time held Ms. Farmer-Cummings, Medicaid, or her private insurer responsible for those charges. The bill does not indicate this, however. Moreover, the bill does not indicate the services that were provided for the old charges. Since the bill contains charges for services that were both related to and unrelated to Ms. Farmer-Cummings' injury and were provided over a five-year period to both Ms. Farmer-Cummings and another family member, it is impossible for this court to determine that the old charges were for services relating to Ms. Farmer-Cummings' injury. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.