Brandon Sees v. Best Buy Company, Inc.

**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

**MEDICAL FEE DISPUTE NUMBER:** 13-01419

**INJURY NUMBER:** 13-029338

**EMPLOYEE:** Brandon Sees

**EMPLOYER:** Best Buy Company, Inc.

**INSURER:** XL Insurance America, Inc. / Sedgwick Claims Management Services, Inc.

**HEALTH CARE PROVIDER:** Chesterfield Spine Center, LLC, d/b/a St. Louis Spine & Orthopedic Surgery Center

Chesterfield Spine Center, LLC, d/b/a St. Louis Spine & Orthopedic Surgery Center (Health Care Provider) by attorney Jack Spooner filed its Application for Payment of Additional Reimbursement of Medical Fees (Application) with the Division of Workers' Compensation (Division). The Application asserts that the Employer and Insurer owe the Health Care Provider the amount of $74,555.37 for authorized medical services rendered to the employee in the underlying worker's compensation case. The Employer and Insurer by attorney Joshua Friel filed a request for award on undisputed facts with the Division. The Health Care Provider filed a response with the Division.

- **Section 287.140.13(6) RSMo states** "a hospital, physician or other health care provider whose services have been authorized in advance by the employer or insurer may give notice to the division of any claim for fees or other charges for services provided for a work-related injury that is covered by this chapter, with copies of the notice to the employee, employer and the employer's insurer. Where such notice has been filed, the administrative law judge may order direct payment from the proceeds of any settlement or award to the hospital, physician or other health care provider for such fees as are determined by the division. The notice shall be on a form prescribed by the division."

- **Section 287.140.13(5) RSMo states** "if an employer or insurer fails to make payment for authorized services provided to the employee by a hospital, physician or other health care provider pursuant to this chapter, the hospital, physician or other 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."

- Section 287.140.4 RSMo states "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 health care 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 health care 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."

- 8 CSR 50-2.030(2)(A) states "if an employer or insurer fails to make payment for authorized services provided to an employee by a health care provider due to a work-related injury that is covered under the Missouri Workers' Compensation Law, the health care provider may file an application for direct payment with the division."

- 8 CSR 50-2.030(2)(I)1 states that "An application for direct payment may be denied in full by an administrative law judge without an evidentiary hearing by issuing an award on undisputed facts in accordance with the following procedures. The employer or insurer may file a request for an award on undisputed facts in regard to the application for direct payment on the sole ground that the health care services for which direct payment is being sought were not authorized by the employer or insurer. The request for an award on undisputed facts shall be filed on the approved division form. The request for an award on undisputed facts shall state with particularity each material fact as to which the employer or insurer claims there is no genuine issue, with specific references to the contents of the application for direct payment, deposition testimony, affidavits and documents that demonstrate the lack of a genuine issue as to such facts. Each request for an award on undisputed facts shall have attached thereto the affidavits, portions of deposition transcripts, and other documents relied upon in the request."

- 8 CSR 50-2.030(2)(I)2 states that "within thirty (30) days after a request for an award on undisputed facts is filed with the division, the health care provider shall file its response on the approved division form. The response shall admit or deny each of the factual statements contained in the request. A denial may not rest upon mere allegations or general denials. Rather, the response shall support each denial with specific references to the depositions, documents or affidavits that demonstrate specific facts showing that there is a genuine issue to be decided at an evidentiary hearing. Attached to the response shall be a copy of the affidavits, deposition transcripts (or portions thereof), and other documents upon which the response relies. The response may also set forth, in detail, additional material facts that remain in dispute."

- 8 CSR 50-2.030(2)(I)3 states "Upon timely filing of the response, the administrative law judge assigned to the case shall proceed to ruling on the request for an award on undisputed facts. If no response is filed within the thirty (30) days allotted (unless extended by written order of an administrative law judge), the facts as set forth in the request for an award on undisputed facts shall be deemed as true, and the administrative law judge assigned to the case shall proceed to ruling on the request for an award on undisputed facts. If the request for an award on undisputed facts and response show that there is no genuine issue as to any material fact and that the application for direct payment should be denied in full, the administrative law judge shall enter an award on undisputed facts denying the application for direct payment in full. Such award shall be a final reviewable award in the case as to the application for direct payment."

- 8 CSR 50-2.030(2)(I)4 states "the health care provider may file an application for review with the Labor and Industrial Relations Commission within twenty (20) days from the date of the award of the administrative law judge. This review shall be subject to review and appeal in the same manner as provided for other awards in Chapter 287, RSMo."

- 8 CSR 50-2.030(2)(I)5 states "if the request for an award on undisputed facts and response show that there is a genuine issue as to any material fact, the administrative law judge shall issue an order denying the request for an award on undisputed facts. An order denying the request for an award on undisputed facts is not a final award as to any issue, and is not subject to review or appeal."

**FINDINGS OF FACT:**

Based upon the evidence, I find the following facts:

1. On August 22, 2017, the Health Care Provider (HCP) filed its Application for Payment of Additional Reimbursement of Medical Fees (Application) with the Division of Workers' Compensation pursuant to 8 CSR 50-2.030(2)(A).
2. The date of service in this medical fee dispute, as stated in the HCP's application, is December 22, 2015.
3. On May 23, 2016, an Explanation of Review (EOR) along with a check in partial payment was mailed by the Insurer to the HCP. Affidavit and Exhibits 1 & 2.
4. The EOR is in writing and contained the basis for disputing portions of the amounts charged.
5. The HCP deposited the partial payment check in its bank account on June 1, 2016.
6. The EOR and the partial payment check was received by the HCP no later than June 1, 2016.

**RULINGS OF LAW:**

There is no genuine issue as to the material facts set forth above. The HCP had notice of the dispute of the medical charges no later than June 1, 2016. The application filed on August 22, 2017 was not timely filed as required by section 287.140.4. Therefore, I hereby deny the Health Care Provider's application for payment of additional reimbursements.

**APPEAL:**

Pursuant to 8 CSR 50-2.030(2)(I)4, the health care provider may file an application for review with the Labor and Industrial Relations Commission within twenty (20) days from the date of the award of the administrative law judge.

I certify that on 9/17/19 I delivered a copy of the foregoing award to the parties to the case. A complete record of the method of delivery and date of service upon each party is retained with the executed award in the Division's case file.

- By __________________________

Made by:

_____________________________

Bruce Farmer

Administrative Law Judge

Division of Workers' Compensation