**HCP did not file its Application for Additional Reimbursement of Medical Fees within the limitations period, therefore, HCP is not entitled to any further reimbursement.**
*(Addressing Issues 1 & 2)*
The first issue this court must decide is whether HCP's Application for Additional Reimbursement was timely filed. If it was not timely filed, the issue of additional reimbursement and payment of prejudgment interest is moot. If the Application was timely filed, the issue of additional reimbursement and prejudgment interest will then be discussed.
The statute of limitations for medical fee disputes is found in §287.140.4(2), RSMo (2014), and states as follows:
> 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: [...]
> (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.
Pursuant to 8 CSR 50-2.030(1)(A):
> If an employer or insurer disputes the reasonableness of a medical fee or charge, the employer or insurer shall notify the health care provider in writing that the medical charge is being disputed and shall explain the basis for the dispute.
Thus, the statutory and regulatory guidance is straightforward. Once an HCP is notified in writing of a dispute as to the reasonableness of a medical bill and the basis for that dispute, the HCP has one year to file its Application for Payment of Additional Reimbursement of Medical Fees.
The facts are not at issue; the parties stipulated to all of the relevant facts. The relevant facts are uncontroverted. Claimant received treatment from HCP on January 21, 2014. The Review Analysis and check were received by the HCP at the latest on March 17, 2014; when HCP deposited Insurer's partial payment check. In its letter dated April 7, 2014, HCP acknowledged receipt of the partial payment. (Exhibit D). HCP did not file its Application for Additional Reimbursement of Medical Fees until October 26, 2015; more than 19 months after receiving the Review Analysis and partial payment check.
The determinant question is whether the Review Analysis (Exhibit B) serves as a "notice of dispute" pursuant to 8 CSR 502.030(1)(A). In HCP's Affidavit (Exhibit 1), HCP states that the
Issued by DIVISION OF WORKERS' COMPENSATION
Injury No. 12-034177
Review Analysis did not notify HCP that the medical charge was being disputed by Employer/Insurer because "it is a customary document issued to HCP when treating a patient with insurance coverage to explain the benefits available." Further, HCP states the Review Analysis is "an indication of what a third party's [sic] believes is a recommended allowance..." HCP states the Review Analysis directs questions to a third party, and it is vague and subject to many interpretations. (Exhibit 1).
The rule promulgated by the Department of Labor and Industrial Relations/Division of Workers' Compensation has two requirements for a "notice of dispute." First, it must be in writing. Second, it must explain the basis of the dispute. 8 CSR 50-2.030(1)(A). The Review Analysis was in writing; it was introduced as an Exhibit. (Exhibit B). On the Review Analysis, it clearly states that the bills were being reduced and the reasons for those reductions. (Exhibit B). In addition, the Review Analysis was accompanied by a check from Insurer paying the reduced amount; making clear the amount Insurer was going to pay. (Exhibit C).
Even more compelling, in response to the Review Analysis, HCP sent a letter dated April 7, 2014, in which it disputes the reduction of the bill, asks to negotiate, and states an MFD will be filed if they do not receive the additional payment. (Exhibit D). All of which makes it abundantly clear that HCP was notified in writing of the dispute and knew the basis for the dispute; in essence, HCP acknowledged the dispute.
The Labor and Industrial Relations Commission has held that an "explanation of benefits" or "explanation of review", which are functionally the same as the Review Analysis in this case, was sufficient to constitute a notice of dispute. See *Employee: Deborah Rathgeber, Employer: Phelps County Regional Medical Center, Insurer: Liberty Mutual Fire Insurance Company, Health Care Provider: St. Louis Spine & Orthopedic Surgery Center, Injury No. 12-003925*, 2016 WL 3683340 (Lab. Ind. Rel. Com. 2018); *Employee: Brandon Sees, Employer: Best Buy Co., Inc., Insurer: XI Ins. Am., Inc. Health Care, Provider: Chesterfield Spine Ctr., LLC d/b/a St. Louis Spine & Orthopedic Surgery Ctr., No. 13-029338*, 2020 WL 1640282, at *1 (Mo. Lab. Ind. Rel. Com. Mar. 20, 2020) (appeal pending).
In this case, the Review Analysis received by HCP explained in writing that Insurer disputed the charges because multiple procedures performed at the same time had been billed at full price and the charges exceeded what was usual and customary. By sending this explanation in writing, Insurer met the requirements of 8 CSR 50-2.030(1)(A).
HCP alleges that Insurer was required to send the "notice of dispute" by certified mail. Under the statute, "[n]otice shall be presumed to occur no later than five business days after transmission by certified United States Mail." §287.140.4(2), RSMo (2014). The legislature sought to create a presumption regarding the receipt or timing of notice; it did not create a requirement regarding the manner of notice. See 8 CSR 50-2.030(1)(B)(5). On both occasions it has reviewed the issue, the Labor and Industrial Relations Commission has determined that a "notice of dispute" was not required to be sent by certified mail. See *Rathgeber* and *Sees*.
A presumption regarding when notice occurs is easily distinguishable from other provisions in the workers' compensation statute and regulations that specifically require service
by certified mail. The Commission has promulgated various regulations where the requirement for notice via certified mail is unequivocal. For example, 8 CSR 50-2.030 provides, "The health care provider shall serve through personal service or by certified mail, return receipt requested, a copy of the application on the person or corporation against whom the application has been filed." Another example reads, "Notice to the party or parties shall be sent by certified mail according to the provisions of Chapter 287, RSMo." 8 CSR 50-2.010. Unrelated to MFD, the legislature has required the use of certified mail, when an injured employee requests all statements regarding the accident and injury from the employer. The statute requires, "The request shall be directed to the employer or its insurer by certified mail." $\S 287.215$ RSMo (2014). As HCP does not cite any statute, regulation, or rule that requires a "notice of dispute" to be sent by certified mail, it cannot be held to be a requirement.
Since the "notice of a dispute" was not sent via certified mail, the Employer/Insurer cannot rely upon the presumption allowed in $\S 287.140 .4(2)$ to determine exactly when the Notice of dispute' was received. However, the check that was sent with the Review Analysis was deposited by HCP on March 17, 2014. (Exhibit B). Further, HCP sent a letter dated April 7, 2014, in which it made a demand for additional payment and informed Insurer that if an agreement could not be reached, it would forward the matter to its attorney. (Exhibit D). Despite the clear "notice of dispute", HCP filed its Application for Payment of Additional Reimbursement over nineteen months after receiving the Review Analysis; seven months past the statute of limitations date of March 17, 2015.