Tina Watt v. Houghton Mifflin Harcourt Publishing Company

Employee: Tina Watt (Settled)

Healthcare Provider: Midwest Special Surgery, P.C.

Employer: Houghton Mifflin Harcourt Publishing Company

Additional Party: Second Injury Fund (Settled)

Injury No.: 10-085912

MFD No.: 10-01232

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Insurer: AIG Property Casualty Company c/o Chartis Claims, Inc.

Hearing Date: January 15, 2016

Checked by: EJK/sb

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? Yes
3. Was there an accident or incident of occupational disease under the Law? Yes
4. Date of accident or onset of occupational disease: September 29, 2010
5. State location where accident occurred or occupational disease was contracted: Lincoln County, Missouri
6. Was above employee in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? Yes
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work employee was doing and how accident occurred or occupational disease contracted: The employee developed lateral epicondylitis in her left elbow from lifting boxes overhead at work.
12. Did accident or occupational disease cause death? No Date of death? N/A
13. Part(s) of body injured by accident or occupational disease: Left elbow
14. Nature and extent of any permanent disability: 20 % Permanent partial disability of the left elbow
15. Compensation paid to-date for temporary disability: $\ 9,746.52
16. Value necessary medical aid paid to date by employer/insurer: $\ 38,122.37

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Tina Watt

1. Value necessary medical aid not furnished by employer/insurer? None
2. Employee's average weekly wages: $\ 522.13
3. Weekly compensation rate: $\ 348.09
4. Method wages computation: Per settlement

1. Amount of compensation payable:

Settled

1. Second Injury Fund liability:

Settled

TOTAL:

N/A

1. Medical Fee Dispute Additional Compensation for Medical Fees awarded:

None

Said payments to begin immediately and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant: N/A

Issued by DIVISION OF WORKERS' COMPENSATION

Employee: Tina Watt

Checked by: $\mathrm{EJK} / \mathrm{sb}$

On September 29, 2010, the employee sustained a compensable work injury to her left elbow. The Healthcare Provider in this case rendered medical treatment to the employee between November 15, 2010, and April 27, 2011. On November 15, 2010, Dr. Sudekum performed an initial evaluation. See Exhibit 1. He performed an initial and revision surgery for right lateral epicondylitis early in the course of treatment. See Exhibit 1. Later, in the course of authorized treatment, Dr. Sudekum treated the employee for left-sided symptoms, and performed an epicondylar release and a left radial tunnel release. See Exhibit 1. The accident occurred in Lincoln County, Missouri, but the parties waived venue.

The Healthcare Provider submitted itemized medical billing statements showing medical fees in the total amount of $\ 15,432.00 charged for medical services provided to the employee from November 15, 2010, to September 15, 2011. See Exhibit 1. The itemized billing statements show the Employer/Insurer made payments to the Healthcare Provider, leaving the amount in dispute at $\ 8,443.86 for which the Healthcare Provider is seeking additional reimbursement. See Exhibit 1.

On June 3, 2015, Midwest Special Surgery, P.C., filed its application for payment of additional reimbursement of medical fees with the Division of Workers' Compensation. The application asserts that the above captioned employer and insurer bear liability for an additional $\ 8,443.86 for authorized medical services rendered to the employee in the underlying workers' compensation case. On September 16, 2015, the Healthcare Provider filed an Application for Evidentiary Hearing with the Division of Workers' Compensation.

In October 2015, and on November 30, 2015, the Employer and Insurer in this medical fee dispute filed an answer to the application, alleging that it had paid all reasonable and customary expenses to the Healthcare Provider, that all remaining charges were not reasonable and customary and that the statute of limitations had run before the Healthcare Provider filed its

application. On November 13, 2015, the Division of Workers’ Compensation sent a notice of evidentiary hearing to the parties. On December 1, 2015, the Employer and Insurer filed a letter requesting an Award on Undisputed Facts without hearing. No response was received within thirty days.

On January 15, 2016, the parties appeared by counsel pursuant to Notice of Hearing issued by the Division of Workers’ Compensation. The injury in this case occurred in Lincoln County, Missouri, but the parties waived venue at the hearing. The procedure for proceedings in Medical Fee Dispute cases is provided by law:

The division shall, by regulation, establish methods to resolve disputes concerning the reasonableness of medical charges, services, or aids. This regulation shall govern resolution of disputes between employers and medical providers over fees charged, whether or not paid, and shall be in lieu of any other administrative procedure under this chapter. The employee shall not be a party to a dispute over medical charges, nor shall the employee's recovery in any way be jeopardized because of such dispute. Any application for payment of additional reimbursement, as such term is used in 8 CSR 50-2.030, as amended, shall be filed not later than: (1) Two years from the date the first notice of dispute of the medical charge was received by the Healthcare Provider if such services were rendered before July 1, 2013; and (2) One year from the date the first notice of dispute of the medical charge was received by the Healthcare Provider if such services were rendered after July 1, 2013.

Notice shall be presumed to occur no later than five business days after transmission by certified United States mail.

At the hearing, the Healthcare Provider submitted a complete medical report stating that Dr. Sudekum reviewed the medical records and bills generated for the employee’s treatment, and works closely with all departments of the Healthcare Provider and has knowledge of its billing practices and protocol, that all fees and charges contained in the billing records are attributable to authorized medical services provided for the employee’s work injuries, and that the fees and charges are fair and reasonable and are not greater than the usual and customary fee this Healthcare Provider receives for the same treatment or service when the payer for such treatment or service is a private individual or a private health insurance carrier. See Exhibit 1. Dr. Sudekum testified, by affidavit, that no notice of dispute of the medical charges has been received by the Healthcare Provider. See Exhibit 1.

The Healthcare Provider also submitted affidavits from Mary Ellen Richardson, the healthcare provider’s director of billing and collection supervisor, stating that all fees and charges contained in the billing records are attributable to authorized medical services provided for the employee’s work injuries, and said fees and charges are fair and reasonable and are not greater

than the usual and customary fee this Healthcare Provider receives for the same treatment or service when the payer for such treatment or service is a private individual or a private health insurance carrier. See Exhibit 1. The Affidavit also states that Ms. Richardson reviewed the disputed items which led to an adjustment or underpayment and did not find any of the charges to be outlandish, high, or unreasonable. See Exhibit 1. The second Affidavit states that she personally identified the attached medical bills as being those of the employee and that they were personally prepared by her staff and kept in the regular course of business, and were complete copies of all the patient charges during this applicable time period. See Exhibit 1. Dr. Sudekum and Ms. Richardson swore in their affidavits that no notice of dispute of the medical charges has been received by the healthcare provider. See Exhibit 1.

The Employer and Insurer submitted a copy of its Application for Award on Undisputed Facts and five explanations of benefits directed to the Healthcare Provider. See Exhibits A, B.

The issues to be resolved in this proceeding are:

1. Whether an evidentiary hearing should have been held in light of Request for Award on Undisputed Facts;
2. Whether the Healthcare Provider is entitled to additional reimbursement of medical fees for medical treatment and services provided to Employee to cure and relieve the effects of the compensable work injury dated 9/29/2010;
3. Whether any "statute of limitations" as defined by RSMo 287.140.4(1)\&(2) constitutes Ex Post Facto, and is prohibited