Jerome Zerrer v. Ahal Concrete Contractors

Healthcare Provider: Timberlake Surgery Center

Employer: Ahal Concrete Contractors

Insurer: Amerisure Mutual Insurance Company

Employee: Jerome Zerrer

Hearing Date: July 18, 2017

Injury No.: 07-118635

MFD No.: 07-01488

Before the

Division of Workers'

Compensation

Department of Labor and Industrial

Relations of Missouri

Jefferson City, Missouri

Checked by: JKO

On July 18, 2017, a Medical Fee Dispute evidentiary hearing was held at the Division of Workers' Compensation in St. Louis regarding the Application For Payment of Additional Reimbursement of Medical Fees filed by the Healthcare Provider, Timberlake Surgery Center. The Healthcare Provider, Timberlake Surgery Center, was represented at the hearing by its attorneys, Mr. Jack B. Spooner and Mr. Christopher M. Johnson. Employer, Ahal Concrete Contractors, and its insurer, Amerisure Mutual Insurance Company, were represented at the hearing by their attorney, Mr. Andrew J. Sheehan. At the time of the hearing, the parties agreed on certain stipulated facts and identified the issues in dispute. These stipulations and the disputed issues, together with the findings of fact and rulings of law, are set forth below as follows:

1) The date of service for the medical care in this Medical Fee Dispute is November 12, $2014^{2}$.

2) Timberlake Surgery Center (Healthcare Provider) served a copy of the Application for Payment of Additional Reimbursement of Medical Fees by certified mail, return receipt requested, and complied with 8 CSR 50-2.030(1)(C).

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[^0]: ${ }^{1}$ The parties at hearing admitted into evidence Healthcare Provider Exhibit 6, which contained factual stipulations, as well as agreements on the admissibility of the various Exhibits offered into evidence in this case. So as not to be repetitious, the contents of the document were fully admitted into evidence and are a part of the record of the hearing, but only the factual stipulations will be repeated here, as the Exhibits admitted into evidence are already enumerated in a separate section of the Award.

${ }^{2}$ Although the parties submitted the written stipulations into evidence confirming their agreement that the date of service for the medical care is November 12, 2014, every other piece of evidence in the record, including Healthcare Provider's own medical records, billing statements, and Medical Fee Dispute Application, as well as Employer/Insurer's documents and filings, all agree that the date of service at issue is November 21, 2014. That being the case, I find that the submitted written stipulation has a typographical error in that (transposing the numbers in the date) which is hereby corrected in this Award, and that the intent of the parties was to actually stipulate that the date of service for the medical care is November 21, 2014.

3) The Application for Payment of Additional Reimbursement of Medical Fees was accepted with the Division on or about August 31, 2016.

4) The CPT Code in this Medical Fee Dispute for the medical services provided of 26545 is associated with treatment to the thumb.

5) Should the Division determine the Application for Payment of Additional Reimbursement of Medical Fees in accordance with Healthcare Provider group Exhibits 1 and 2 was timely filed and/or compensable for the purposes of this Medical Fee Dispute, $\ 5,760.57 would be the fair and reasonable fee for the medical services provided in this Medical Fee Dispute.

1) Is Healthcare Provider entitled to collect an additional $\ 3,801.34 in medical fees from Employer/Insurer on account of its Application for Payment of Additional Reimbursement of Medical Fees?

2) Is Employer/Insurer (Ahal/Amerisure) entitled to collect attorney's fees and costs under Mo. Rev. Stat. § 287.560 (2005) and Mo. Rev. Stat. § 287.040.3 (2005)?

The following exhibits were admitted into evidence:

1. Medical billing records of Timberlake Surgery Center and Explanations of Review (EOR) from Equian on behalf of Plocher Construction
2. Missouri Division of Workers' Compensation records and filings from Healthcare Provider in connection with this Medical Fee Dispute
3. Healthcare Provider's Response and Memorandum in Opposition to Employer/Insurer's Request for Award on Undisputed Facts
4. Affidavit in Support of Medical Fee Dispute
5. Medical treatment record of Dr. David M. Brown
6. Stipulation of Facts

A. Request for Award on Undisputed Facts filed February 21, 2017

B. Explanation of Review (EOR) from Equian dated January 15, 2015

C. Operative report of Timberlake Surgery Center for surgery on November 21, 2014

D. Motion to Dismiss

E. Motion for Costs Against Timberlake Surgery Center Pursuant to § 287.560 and $\S 287.040 .3$

F. Affidavit in Support of Employer/Insurer's Opposition of Medical Fee Dispute

Notes: 1) Any stray markings or writing on the Exhibits in evidence in this case were present on those Exhibits when they were admitted into evidence on July 18, 2017. No additional markings have been made since their admission on that date.

2) The parties asked that I take judicial and/or administrative notice of the file contents of the Division of Workers' Compensation file in this matter. Without objection, I will take such judicial and/or administrative notice of the file contents of the Missouri Division of Workers' Compensation file in this matter, and will review those contents in reaching my conclusions on the disputed issues in this case.

Based on a comprehensive review of the evidence, including the affidavits of the parties, the medical treatment records, the other documentary evidence, and the various motions and responses admitted into the record at hearing, I find:

1) Jerome Zerrer (Employee) received medical treatment, which is the subject of this Medical Fee Dispute, at Timberlake Surgery Center (Healthcare Provider) on November 21, 2014. According to the Operative Report (Exhibit C), he received surgery (left thumb UCL ligament reconstruction) performed by Dr. Brown on that date, on account of "sustaining a traumatic injury to his left thumb resulting in an ulnar collateral ligament tear..."

2) The medical bill from Timberlake Surgery Center (Exhibit 1) documents total charges for Employee's treatment on November 21, 2014 of \$7,200.71. On the face of the billing statement, it lists Plocher Construction as the Payer Name and the Employer Name. Additionally, in the Remarks section, it lists Plocher Construction with an address of 2808 Thole Plocher Road, Highland, IL 62249.

3) Following submission of their medical bill for the November 21, 2014 services, Healthcare Provider received an Explanation of Reimbursement (EOR) from Equian (Exhibits 1 and B) dated January 15, 2015. On the face of the EOR at the very top is "Plocher Construction." The EOR indicates that the submitted charges were reviewed and a payment of $\ 1,959.23 was determined to be the fair and reasonable amount owed for the medical treatment in question.

4) Healthcare Provider did not agree with the payment submitted with the EOR and filed an appeal letter dated January 28, 2015 (Exhibit 1) seeking additional reimbursement. Equian responded with a Re-Evaluation of the EOR dated March 18, 2015 (Exhibit 1), which, again, had "Plocher Construction" at the top and concluded that no additional reimbursement was appropriate in this case.

also that they were wrongfully named as the Employer/Insurer for this Medical Fee Dispute since theirs was a 2007 case involving the elbow and this was a 2014 surgery involving the thumb. Additionally, there was an Affidavit from Robin Chott (Exhibits A and F) attached to the Request. In the Affidavit, Ms. Chott confirmed that she worked for Amerisure, that the 2007 case involved one medical visit for an elbow injury, that Ahal Concrete Contractors and Plocher Construction are two separate entities, and, that pursuant to a phone call she had with Plocher Construction, Employee was working for Plocher and Plocher paid for the medical bills for the 2014 surgery that is the subject of this Medical Fee Dispute.

11) Healthcare Provider timely filed Healthcare Provider's Response And Memorandum In Opposition To Employer/Insurer's Request For Award On Undisputed Facts (Exhibit 3) on March 23, 2017. In its response, Healthcare Provider disputed the statute of limitations defense raised by Ahal and Amerisure by raising issues with whether an EOR constitutes notice of a dispute. Healthcare Provider also questioned Ahal and Amerisure's assertion that they were wrongly named and the medical bills in dispute were not related to a 2007 injury to the elbow, by claiming that the resolution of those issues called for a legal conclusion. Healthcare Provider asserted that an evidentiary hearing was needed to reach a final conclusion on these disputed issues.

12) Additionally, Healthcare Provider raised issues with the Medical Fee Dispute process established by the Division. Healthcare Provider asserted that it was required to file a completed Form WC-194 (Request by a Healthcare Provider for Case Status Information to File a Medical Fee Dispute Application) "and receive from the Division its approval" before a Medical Fee Dispute application can be filed. Because the Division "incorrectly disallowed" Healthcare Provider to file an Application within the one year statute of limitations, the Application should be deemed timely filed. Healthcare Provider argues that the process is unconstitutional because it has no control over when the Division will return the completed WC-194, and it must be "completed by the Division and returned to HCP [Healthcare Provider] before HCP can file the Application." Healthcare Provider also raised constitutional questions regarding $\S 287.140 .4(2)$ being "unconstitutionally vague" since there is no definition of what constitutes a "notice of dispute," and 8 CSR 50-2.030(1)(P) violating Healthcare Provider's constitutional due process rights regarding the requesting and issuing of awards on undisputed facts.

13) Based on the filings of the respective parties, on March 27, 2017, I entered a Medical Fee Dispute Order Denying the Request for Award on Undisputed Facts and setting the case for Hearing on the next available docket to allow the parties the opportunity to present their evidence and bring closure to this disputed case.

14) Pursuant to a notice dated May 3, 2017, this Medical Fee Dispute was set for Hearing on June 27, 2017 at the Division of Workers' Compensation in St. Louis.

15) On May 8, 2017, Ahal Concrete Contractors and Amerisure Mutual Insurance Company, by and through their attorney, filed an Answer To Application For

Payment Of Additional Reimbursement Of Medical Fees (Exhibit 2). In it, Ahal and Amerisure asserted that, among other things, they did not authorize the disputed medical treatment changes, the treatment was not related to their 2007 injury and the charges were not usual and customary. The Answer was received by the Division on May 9, 2017.

16) When the parties appeared at the Division for the June 27, 2017 hearing, Healthcare Provider announced that they were not prepared to proceed to hearing on that date. They were still attempting to complete some discovery depositions that they believed would shed light on the issues in controversy, but, by that point, they had not secured evidence connecting the 2014 medical treatment at issue to the 2007 injury or the Employer/Insurer from that 2007 case. I agreed to continue the case for a short time to allow the discovery to continue and/or to allow Healthcare Provider to dismiss Ahal and Amerisure if it was unable to secure any evidence that connected them to this 2014 surgery.

17) On June 30, 2017, Ahal and Amerisure, by and through their attorney, filed a Motion to Dismiss (Exhibit D), once again asserting the same bases for dismissal of this Medical Fee Dispute that were previously listed in their Request For Award On Undisputed Facts.

18) Additionally, on June 30, 2017, Ahal and Amerisure, by and through their attorney, filed a Motion For Costs Against Timberlake Surgery Center Pursuant To $\S \mathbf{2 8 7 . 5 6 0} and \S \mathbf{2 8 7 . 0 4 0 . 3}$ (Exhibit E). Ahal and Amerisure asserted in their filing that at the outset, the Medical Fee Dispute should be dismissed because it is barred by the statute of limitations. But, moreover, it was inappropriate to have filed this Medical Fee Dispute against Ahal and Amerisure as Employee was not employed by Ahal at the time of his 2014 traumatic injury that gave rise to the 2014 surgery, but instead, was employed by Plocher Construction as evidenced by the partial payment made by Plocher Construction in connection with the 2014 surgery in the first place. Ahal and Amerisure asserted that because of this inappropriate filing, they have incurred legal costs and attorney's fees in their defense of this matter totaling $\ 2,116.50 (including the anticipated fees associated with the July 18, 2017 Hearing setting).

19) When the parties appeared for the Hearing on July 18, 2017, other than offering the Exhibits detailed above into evidence and each attorney making statements on their clients' behalf for the benefit of the record, there was no other live testimony or evidence presented in this case.

20) Specifically, I can find no evidence in the record that Plocher Construction and Ahal Concrete Contractors are, or ever have been, the same entity, or are even connected in any way, other than Employee worked for both at one time or another. I can find no evidence connecting the 2014 thumb surgery to the 2007 elbow injury in this case. Further, I can find absolutely no evidence in the record that Ahal Concrete Contractors and/or Amerisure Mutual Insurance Company ever authorized or even

partially paid for any of the medical treatment/bills at issue in this Medical Fee Dispute.

Based on a comprehensive review of the evidence, including the affidavits of the parties, the medical treatment records, the other documentary evidence, and the various motions and responses admitted into the record at hearing, as well as based on the applicable regulations and laws of the State of Missouri, I find the following:

At the outset, I would note that Healthcare Provider has raised a number of constitutional questions and alleged constitutional violations concerning various parts of the Medical Fee Dispute process governed by the Missouri Workers' Compensation statutes and regulations. Healthcare Provider challenges aspects of the Medical Fee Dispute statute of limitations (§ 287.140.4(2)) as being "unconstitutionally vague" since there is no definition of what constitutes a "notice of dispute;" aspects of requesting and issuing awards on undisputed facts under 8 CSR 50-2.030(1)(P) as violating Healthcare Provider's constitutional due process rights; and aspects of the completion of a WC-194 form before an Application for a Medical Fee Dispute will be accepted by the Division as being unconstitutional since Healthcare Provider has no control over the timing of the completion on that paperwork by the Division.

Since this is not a court of competent jurisdiction for making constitutional rulings, I will not make findings on the merits of these constitutional arguments presented by Healthcare Provider in this case. However, I would note that my decision in this case was not based on any findings concerning the applicability of the statute of limitations (§ 287.140.4(2)), nor was this decision based on the Request For Award On Undisputed Facts process (as there was a full evidentiary hearing held in this matter). Therefore, it does not appear that Healthcare Provider's first two constitutional challenges are relevant or germane to the findings and rulings that were determinative in this case.

Similarly, regarding the third constitutional challenge on the timing of the completion of the WC-194 and how that could disparately affect the Healthcare Provider timely filing an Application within the statute of limitations, I note, again, that the violation or not of the statute of limitations was not a deciding factor in this case. The outcome of this case was not determined by how quickly the WC-194 was completed and returned to Healthcare Provider. Therefore, it also does not appear that Healthcare Provider's third constitutional challenge is relevant or germane to the findings and rulings that were determinative in this case, either.

Issue 1: Is Healthcare Provider entitled to collect an additional \$3,801.34 in medical fees from Employer/Insurer on account of its Application for Payment of Additional Reimbursement of Medical Fees?

The Healthcare Provider, Timberlake Surgery Center, filed an Application For Payment of Additional Reimbursement of Medical Fees pursuant to Mo. Rev. Stat. § 287.140.4 and $\S \mathbf{2 8 7 . 1 4 0 . 1 3 ( 5 ) ( 2 0 0 5 )}, to attempt to recover unpaid medical expenses totaling \ 3,801.34 for treatment they provided to Employee.

Mo. Rev. Stat. § 287.140.13 (5) (2005), provides in pertinent part that "If an employer or insurer fails to make payment for authorized services provided to the employee...pursuant to this chapter...[the] health care provider may proceed pursuant to subsection 4 of this section with a dispute against the employer or insurer for any fees or other charges for services provided." Mo. Rev. Stat. § 287.140.4 (2005) allows the Division of Workers' Compensation to establish methods to resolve disputes concerning the reasonableness of medical charges, and concerning the fees charged and whether or not they were paid.

The healthcare provider has the burden of proof regarding the reasonableness of the medical charges. When the healthcare provider presents testimony and evidence relating medical bills to an injury and places in evidence the accompanying medical records and bills, the healthcare provider has met its burden of proof on the reasonableness of the bills, and the burden then shifts to the employer or insurer to show that the medical bills were unreasonable or unfair. Esquivel v. Day's Inn of Branson, 959 S.W.2d 486 (Mo. App. S.D. 1998).

I find that Healthcare Provider in this case has failed to meet its burden of proof, and, thus, is not entitled to collect any additional medical expenses from Ahal and/or Amerisure for the 2014 thumb surgery.

First, the statute requires that the medical services provided to the employee be "authorized" by the employer and/or insurer in order for that employer/insurer to be responsible for the additional amounts sought by the healthcare provider. In the case at bar, there is absolutely no evidence that anyone from Ahal and/or Amerisure ever authorized the medical services (the 2014 thumb surgery) that gave rise to this Medical Fee Dispute. Since the 2014 thumb surgery services were not "authorized" by Ahal and/or Amerisure, I find that they are not responsible for any additional payments for those services pursuant to this Medical Fee Dispute.

Second, the statute requires that the medical services provided to the employee be provided "pursuant to this chapter," meaning that the medical treatment was provided in connection with, and medically causally connected to, a compensable Workers' Compensation injury. In order to be successful in meeting its burden of proof in this case, Healthcare Provider needed to show that the 2014 thumb surgery was provided pursuant to this chapter, or, in other words, that the 2014 thumb surgery was provided as part of the medical treatment causally related to this 2007 workers' compensation case. I find that there is absolutely no such proof in this regard. To the contrary, the evidence in the record suggests that the 2014 thumb surgery was causally related to a traumatic injury on October 24, 2014 while Employee was working for Plocher Construction, not the 2007 elbow injury from when Employee was employed by Ahal

Concrete Contracting as Healthcare Provider has pled in this case. Therefore, I find Healthcare Provider has similarly failed to show that the disputed medical charges, which are the subject of this Medical Fee Dispute, were provided pursuant to this chapter in the 2007 case.

With regard to this point, Healthcare Provider argues that it was merely filing based on the information provided by the Division of Workers' Compensation, and, to the extent that the records show this was authorized and partially paid by an employer, Plocher Construction, in connection with what appeared to be a 2014 work injury, that treatment was rendered and payments made pursuant to the chapter, thus, allowing for the filing of this Medical Fee Dispute. I disagree. I would note that Healthcare Provider's arguments on this point are also inextricably tied to its constitutional due process arguments and its position that the "approval" of the form WC-194 by the Division, as a condition precedent to filing a Medical Fee Dispute, somehow negatively affects or impedes Healthcare Provider's access to the courts to challenge the fee payments and secure additional compensation. Therefore, I believe it is necessary to look more closely at the actual process of filing a Medical Fee Dispute, what determines if medical treatment (and a medical payment) is made pursuant to this chapter, and how Healthcare Provider is able to pursue additional compensation if it does not agree with payments made for given medical treatment.

I find that in order for medical treatment, and, thus, medical treatment payments, to be made pursuant to this chapter, there must be a valid workers' compensation case in the system to which those medical payments are related. I find that there are two ways in which a workers' compensation injury case is properly opened in the Division's system: 1) An employer/insurer files a report of injury that starts the process and is assigned an injury number by the Division; or 2) An employee, or his dependents, files a claim for compensation, which is assigned an injury number by the Division. I find that third parties, such as medical providers, do not have the ability to file claims or reports of injury on employee or employer/insurer's behalf, and, thus, they do not have the ability to initiate or open workers' compensation proceedings under the law. Nonetheless, if they have provided medical treatment, which they believe was provided pursuant to this chapter (in connection with a work injury), then, they must be able to determine the assigned injury number and the status of the case to allow the medical provider the opportunity to pursue their administrative remedies to collect any disputed medical fees for that treatment under the statute.

That being the case, I find that it is, then, necessary to have a process in place that allows medical providers the opportunity to determine if there is a filed case in the Division system, which has been assigned an injury number, upon which they can file a Medical Fee Dispute to pursue those administrative remedies regarding their disputed medical fees. I find that the form WC-194 is the established process that does just that. While I agree with Healthcare Provider that the rules require it to file a WC-194 before it is allowed to file a Medical Fee Dispute, I disagree with the characterization that the WC-194 must be "approved" by the Division or the Medical Fee Dispute filing will not be accepted. Quite simply, there is no "approval" process regarding the WC-194 that must be accomplished before the Medical Fee Dispute filing is allowed. Instead, the Division either indicates that there is a filed case in the system with an assigned injury number upon which a Medical Fee Dispute can be filed, or it indicates that there is no such case in the system, and, thus, no injury number upon which such Medical Fee Dispute can be filed.

Since medical providers cannot initiate workers' compensation proceedings on an employee or employer/insurer's behalf, I find that the rules quite clearly require the filing of the WC-194 before a Medical Fee Dispute is filed so that the medical provider will know the injury number and case information, if there is one in the system, upon which that Medical Fee Dispute can, then, be filed. If there is no such case in the system, due to the lack of a claim or report of injury, and, thus, no injury number assigned, there is no underlying injury case under which benefits would have been paid pursuant to this chapter. Accordingly, there is no case upon which a medical fee dispute could be filed by a medical provider seeking additional fees.

However, I would note that just because there is no opportunity to file a Medical Fee Dispute to try to recover those fees as a result of the lack of a case with an assigned injury number in the system, that does not mean a medical provider has no opportunity to recover their disputed fees. While the medical provider's ability to use administrative remedies under the workers' compensation statute to recover the fees may be foreclosed due to the lack of an underlying case in the system, the medical provider still has other avenues under the state statutes through circuit court by which they can attempt to collect those fees.

Therefore, applying the facts of the case at bar to this understanding of the procedure, I find that Healthcare Provider properly filed a WC-194 to attempt to determine the injury number and status of the case, for which they were attempting to file a Medical Fee Dispute, to recover the disputed charges for the 2014 thumb surgery. They received the initial response from the Division that there was no such case in the system, and, thus, no injury number upon which to file said Medical Fee Dispute. They, then, refiled it, presumably to ensure that a mistake had not been made by the Division, and received the same response that there was no such case in the system. I find that at that point, Healthcare Provider exhausted its administrative remedies under the workers' compensation statute and was free to file a case in circuit court to attempt to collect those disputed fees, if they chose to do so. Instead, I find Healthcare Provider contacted the Division for a third time, insisting that there must be a case in the system and obtaining the information on the 2007 elbow case, upon which Healthcare Provider ultimately filed the Medical Fee Dispute. However, despite the Division providing this information upon which Healthcare Provider could file the Medical Fee Dispute, that does not make the information provided necessarily correct, or otherwise eliminate Healthcare Provider's burden of proving the essential elements of the statute in order to obtain a favorable ruling on this Medical Fee Dispute.

That brings me to the third and final reason for why Healthcare Provider has not met its burden of proof in this case. Healthcare Provider's Medical Fee Dispute must fail here because it has failed to prove that the alleged Employer (Ahal Concrete Contractors) and alleged Insurer (Amerisure Mutual Insurance Company) were Employee's actual employer/insurer in whose employment Employee injured his thumb, giving rise to the 2014 surgery. To the contrary, I find that the record of evidence proves that Employee was working for Plocher Construction when he sustained the 2014 injury that resulted in the 2014 thumb surgery. Further, I can find no proof in the record that Ahal and Plocher are the same entity, or are even connected in any way, for that matter.

Having thoroughly reviewed the evidence in the record, I find that it is exceptionally clear that there is absolutely no connection between Ahal, Amerisure, and their December 6, 2007

elbow injury, and this 2014 thumb surgery that Employee received at Healthcare Provider's facility. I find that the 2014 thumb surgery is, instead, related to an October 24, 2014 injury when Employee was working for Plocher Construction. Despite Plocher Construction paying some amount toward the medical bills for this surgery, I find that for whatever reason, neither Employee nor Plocher Construction ever filed a claim or a report of injury with the Division of Workers' Compensation to open a case for the October 24, 2014 injury. Since neither Employee nor Plocher Construction opened a case with the Division, no injury number was ever assigned, and no payment of benefits was made pursuant to this chapter. With no case in the system and no injury number, I find that there was no underlying case upon which a Medical Fee Dispute could be filed by Healthcare Provider to attempt to recover the balance of their disputed charges for the 2014 thumb surgery.

Since I find that Ahal and Amerisure were not Employee's employer/insurer at the time of his 2014 injury, since they did not authorize the 2014 thumb surgery, since they made no payments pursuant to this chapter for the 2014 injury/surgery, and since the 2014 thumb surgery is not medically casually related to the 2007 elbow injury for which Ahal and Amerisure did have responsibility, I find that Healthcare Provider is not entitled to collect any additional fees from Ahal Concrete Contractors and/or Amerisure Mutual Insurance Company pursuant to this Medical Fee Dispute. Medical Fee Dispute Number 07-01488 is denied.

Issue 2: Is Employer/Insurer (Ahal/Amerisure) entitled to collect attorney's fees and costs under Mo. Rev. Stat. § 287.560 (2005) and Mo. Rev. Stat. § 287.040.3 (2005)?

Ahal Concrete Contractors and/or Amerisure Mutual Insurance Company seek the recovery of attorney's fees and costs in this case under Mo. Rev. Stat. § 287.560 (2005) for Healthcare Provider's prosecution of this case without any reasonable grounds. Mo. Rev. Stat. $\S \mathbf{2 8 7 . 5 6 0}$ (2005), essentially states in pertinent part that, if the division or commission determines that any proceedings have been brought, prosecuted, or defended without reasonable grounds, the division may assess the whole cost of the proceedings upon the party who brought, prosecuted, or defended them.

Based on this section of the statute, Ahal and/or Amerisure assert that they are entitled to collect their attorney's fees and costs totaling $\ 2,116.50 for their defense of this Medical Fee Dispute because Healthcare Provider brought and prosecuted this Medical Fee Dispute without any reasonable grounds for doing so. In response, Healthcare Provider argues that they were provided the information on the 2007 injury by the Division and only filed the Medical Fee Dispute pursuant to that information from the Division, so they should not be held responsible for costs and fees if the filing information turned out to be inaccurate.

In reviewing the record of evidence and file contents in this matter, as described in more detail above, I find that Healthcare Provider properly followed the statutes and regulations in filing the WC-194 to obtain the necessary case information and injury number, in order to file a Medical Fee Dispute to try to collect the balance of the medical charges for this 2014 treatment. Although the Division twice correctly responded that there was no such 2014 injury in the system

(as no claim or report of injury had ever been filed by Employee or Plocher Construction), for some unexplained reason, the Division ultimately provided information to Healthcare Provider on the 2007 injury with Ahal and Amerisure. Upon receiving that information, Healthcare Provider took the next step allowed by the statutes and regulations and filed its Medical Fee Dispute based on the information provided by the Division.

While, in hindsight, it seems clear to me that there should have been a number of concerns raised about the appropriateness of filing such a Medical Fee Dispute with Healthcare Provider trying to tie a 2014 thumb surgery to a 2007 elbow injury with a completely different employer, I cannot fault Healthcare Provider at the outset for filing the Medical Fee Dispute based on the information provided by the Division and seeing what kind of response they would get from the alleged employer/insurer. In that respect, I do not find it appropriate under the statute to award costs and fees going all the way back to the beginning of the filing in this matter.

However, once Ahal and Amerisure filed the Request For Award On Undisputed Facts on February 21, 2017, clearly asserting that they were wrongfully named as the Employer/Insurer for this Medical Fee Dispute since theirs was a 2007 case involving the elbow and this was a 2014 surgery involving the thumb, I find that Healthcare Provider had a chance to re-examine their pleading and take a fresh look at whether this Medical Fee Dispute filing was accurate and consistent with all the facts as they knew them to be. Additionally, attached to the Request For Award On Undisputed Facts was an Affidavit from Robin Chott, in which she confirmed that she worked for Amerisure, that the 2007 case involved one medical visit for an elbow injury, that Ahal Concrete Contractors and Plocher Construction are two separate entities, and, that pursuant to a phone call she had with Plocher Construction, Employee was working for Plocher and Plocher paid for the medical bills for the 2014 surgery that is the subject of this Medical Fee Dispute. Again, Healthcare Provider had more facts to review in order to determine the appropriateness of continuing to pursue this Medical Fee Dispute against Ahal and Amerisure.

Healthcare Provider had 30 days under the regulations to review this filing and information, and to determine if it would contest the Request For Award On Undisputed Facts and move the matter toward a Hearing on the merits, file a voluntary dismissal of the Medical Fee Dispute or allow the Request to move forward without objection for the issuance of a denial of the Medical Fee Dispute. Despite the initial "red flags" that should have been evident in differences between the years, body parts and employers, and despite the additional information and affidavit filed with the Request For Award On Undisputed Facts, Healthcare Provider chose to contest the Request For Award On Undisputed Facts and push forward to a trial on the merits to bring closure to this case, without offering one shred of evidence to show how the disputed charges for a 2014 thumb surgery from a 2014 injury with Plocher Construction, could, in any way, be connected to a 2007 elbow injury with Ahal Concrete Contractors. It is at this point in the case, when I find that Healthcare Provider's prosecution of the case turned from arguably reasonable to unreasonable, requiring Ahal and Amerisure to now spend resources to defend a case that was being brought, in my opinion, without any reasonable grounds.

Healthcare Provider also had another opportunity to reassess their position and take steps to bring closure to this case short of both parties spending additional time and expenses of proceeding with the case, when it appeared for the original hearing setting on this Medical Fee Dispute on June 27, 2017. Healthcare Provider announced, at that time, that they were not

prepared to proceed to hearing on that date and they were still attempting to complete some discovery depositions that they believed would shed light on the issues in controversy, but, by that point, they had not secured evidence connecting the 2014 medical treatment at issue to the 2007 injury or the Employer/Insurer from that 2007 case. I agreed to continue the case for a short time to allow the discovery to continue and/or to allow Healthcare Provider to dismiss Ahal and Amerisure if it was unable to secure any evidence that connected them to this 2014 surgery. Despite still not obtaining any such evidence that connected the 2014 surgery to the 2007 injury, or connected the employers to each other, no such voluntary dismissal of this Medical Fee Dispute was ever filed by Healthcare Provider, thus, necessitating the Hearing on July 18, 2017.

Healthcare Provider proceeding to a Hearing and forcing Ahal and Amerisure to spend resources to defend themselves in this case, when there was absolutely no evidence that they were in any way connected to the 2014 thumb surgery at the heart of this dispute, seems to me to be the very textbook definition of prosecuting a case without reasonable grounds. In that respect, I find that Ahal and/or Amerisure are entitled to recover their attorney's fees and costs under Mo. Rev. Stat. § 287.560 (2005), starting at the point when I find the prosecution of this matter to have been without reasonable grounds, following the filing of Healthcare Provider's Response And Memorandum In Opposition To Employer/Insurer's Request For Award On Undisputed Facts on March 23, 2017.

In reviewing Ahal and Amerisure's attorney's fees and costs contained in Exhibit E, I find that starting with costs and fees dated March 28, 2017 and continuing through to the costs and fees associated with the Final Hearing on July 18, 2017, Ahal and Amerisure expended $\ 811.00, which I find they are entitled to recover from Healthcare Provider pursuant to Mo. Rev. Stat. $\S 287.560$ (2005), as a result of Healthcare Provider prosecuting this case without reasonable grounds.

Accordingly, Timberlake Surgery Center (Healthcare Provider) is ordered to pay Ahal Concrete Contractors/Amerisure Mutual Insurance Company the sum of $\mathbf{\$ 8 1 1 . 0 0}$ for attorney's fees and costs pursuant to this Award.

Timberlake Surgery Center has failed to meet its burden of proof on the Medical Fee Dispute that is the subject of this case. Since Ahal and Amerisure were not Employee's employer/insurer at the time of his 2014 injury, since they did not authorize the 2014 thumb surgery, since they made no payments pursuant to this chapter for the 2014 injury/surgery, and since the 2014 thumb surgery is not medically casually related to the 2007 elbow injury for which Ahal and Amerisure did have responsibility, I find that Healthcare Provider is not entitled to collect any additional fees from Ahal Concrete Contractors and/or Amerisure Mutual Insurance Company pursuant to this Medical Fee Dispute. Medical Fee Dispute Number 07-01488 is denied.

Ahal Concrete Contractors and/or Amerisure Mutual Insurance Company are entitled to recover their attorney's fees and costs under Mo. Rev. Stat. § 287.560 (2005), starting at the point when I find the prosecution of this matter to have been without reasonable grounds, following the filing of Healthcare Provider's Response And Memorandum In Opposition To Employer/Insurer's Request For Award On Undisputed Facts on March 23, 2017. Timberlake Surgery Center (Healthcare Provider) is ordered to pay Ahal Concrete Contractors/Amerisure Mutual Insurance Company the sum of $\ 811.00 for attorney's fees and costs pursuant to this Award.

Made by: $\qquad$

JOHN K. OTTENAD

Administrative Law Judge

Division of Workers' Compensation