| Issued by THE LABOR AND INDUSTRIAL RELATIONS COMMISSION |
| FINAL AWARD |
| (Affirming Award on Medical Fee Dispute) |
| Injury No.: 13-029338 |
| Medical Fee Dispute No.: 13-01419 |
**Employee:** Brandon Sees
**Employer:** Best Buy Company, Inc.
**Insurer:** XL Insurance America, Inc.
**Health Care Provider:** Chesterfield Spine Center, LLC d/b/a St. Louis Spine & Orthopedic Surgery Center
Pursuant to the provisions of § 287.140 RSMo and 8 CSR 50-2.030, the above-captioned award is submitted to the Labor and Industrial Relations Commission (Commission) for review under § 287.480 RSMo. We have reviewed the evidence, read the briefs, heard the parties' arguments, and considered the whole record. Pursuant to § 286.090 RSMo, we affirm the award and decision of the administrative law judge. We adopt the findings, conclusions, decision, and award of the administrative law judge.
**Discussion**
A Final Award on Undisputed Facts For Payment of Additional Reimbursements Medical Fee Dispute was issued by an administrative law judge on September 17, 2019. The administrative law judge ruled there was no genuine issue as to the material facts regarding the issues of notice of dispute of the medical charges; and timeliness of the application for payment of additional reimbursement of medical fees (application) by the health care provider. The application was not timely filed as required by § 287.140.4.
The health care provider (HCP) filed a timely application for review to the Commission on October 1, 2019. The parties submitted briefs and the matter was heard in oral argument before the Commission on February 26, 2020.
While we affirm the administrative law judge's Final Award, we note several Constitutional arguments raised by the health care provider in its application for review before the Commission. We do not address those arguments here, as they are not within our jurisdiction, but note them as preserved on appeal. They are identified in the Attachment A to the application for review, which is part of the Commission's record, at pages 3-4, beginning at paragraph (k), numbered (i) through (v).
HCP stated as follows in its application for review:
i. RSMo §287.140.4 is unconstitutional as it denies HCP the right to be heard and/or access to courts as 8 CSR 50-2.030(1)(B) requires as a condition precedent to the initiation of a medical fee dispute that HCP submit to the Division a Request for Case Status Information (Form WC-194), which must be completed by the Division and returned to HCP, before HCP can file an application for payment of additional reimbursement, thereby denying HCP due process of law and the right to
Injury No.: 13-029338
Medical Fee Dispute No.: 13-01419
Employee: Brandon Sees
-2-
be heard by barring HCP the right to timely pursue a medical fee dispute prior to the running of the application statute of limitations, see, *Damon v. City of Kansas City*, 419 S.W.3d 162, 178 (Mo. Ct. App. W.D. 2013);
ii. RSMo §287.140.4 is unconstitutionally vague as it does not give a person of ordinary intelligence sufficient warning of what constitutes a "notice of dispute of the medical charge" and therefore does not protect HCP from arbitrary of discriminatory application of the law, see, *State v. Self*, 155 S.W.3d 756, 760 (Mo. banc 2005);
iii. 8 CSR 50-2.030(1)(P) violates HCP's constitutional right to due process as it is so arbitrary and capricious as to be irrational by requiring HCP to negate material facts or be deemed true while allowing the HCP to present additional material facts without requiring the E.I to negate or even respond to HCP's additional material facts and therefore does not bear a rational relationship to a legitimate state interest in permitting the Employer or Insurer to obtain an award on undisputed facts against HCP without an evidentiary hearing, see, *Psychiatric Healthcare Corporation of Missouri v. Department of Social Services*, 100 S.W.3d 891 (Mo. App. W.D. 2003);
iv. RSMo §287.140.4(2) is unconstitutionally vague as it fails to give HCP sufficient warning or understanding of what constitutes a "notice of dispute" of the fair and reasonable fee that would start the running of the statute of limitations thereby depriving HCP of a claim for payment for medical services, further, the failure of RSMo §287.140.4(2) to provide sufficient guidance as to what conduct creates a notice of dispute subjects HCP, and others similarly situated, to arbitrary and discriminatory application of the law and absent such guidance §287.140.4(2) is unconstitutionally vague as it is without specificity required to afford due process of law and its application creates arbitrary and discriminatory application of the law, see, *Cocktail Fortune, Inc. v. Supervisor of Liquor Control*, 994 S.W.2d 955, 958 (Mo. banc 1999);
v. the Division retrospectively applied RSMo §287.140.4 in violation of the Missouri Constitution as the underlying claim for compensation was filed on June 20, 2013 prior to the enactment of the statute of limitations under RSMo §287.140.4 and therefore does not apply to this medical fee dispute, see, *Accident Fund Insurance Company v. Casey*, 550 S.W.3d 76 (Mo. banc 2018).
**Conclusion**
We affirm the award of the administrative law judge in all respects.
Employer/insurer is not liable to health care provider for additional reimbursement of medical fees.
The award and decision of Administrative Law Judge Bruce Farmer is attached and incorporated herein.
Given at Jefferson City, State of Missouri, this **20th** day of March 2020.
LABOR AND INDUSTRIAL RELATIONS COMMISSION
Robert W. Cornejo, Chairman
Reid K. Forrester, Member
Shalonn K. Curls, Member
Shalonn K. Curls, Member
Secretary