Opinion
ON PETITION FOR REHEARING
[29 Ark.App. 205-A] Petition for rehearing denied.
MAYFIELD, Judge, concurring.
I concur in the court's en banc decision to deny the petition for rehearing filed in the above styled case. See Tracor/MBA v. Baptist Medical Center, 29 Ark.App.198, 780 S.W.2d 26 (1989). However, since I was a member of the panel that remanded this case to the Commission, I want to explain why I think the petition for rehearing should be denied.
The basis of the controversy in this case is set out in the opinion of the administrative law judge which states that the appellant's insurance carrier submitted the appellee's bill for hospitalization of appellant's employee to a company that performs hospital bill auditing and that this company simply sought to determine whether the hospital patient actually received the items for which she was charged. The reason for this audit is tacitly recognized by the appellee who explains in its own brief that by a computerized process items are charged to a patient when the item is ordered, and "while it might be said that this system does not show that item was actually used by a patient, it clearly does indicate the item was specifically ordered for use on that patient." (Emphasis supplied by appellee.)
The audit disallowed more than $25,000.00 of the hospital's $201,490.30 bill. All but $442.00 of the amount disallowed by the [29 Ark.App. 205-B] audit was also disallowed by the law judge who pointed out that most of the items disallowed by the audit were not challenged by the appellee hospital who chose "to rely on their contentions that their computerized billing system was accurate and could not be challenged by the type of audit" performed for the appellant's insurance carrier. The full Commission greatly reduced the amount disallowed by the law judge and allowed all of the appellee's bill except $558.25.
In our opinion of November 22, 1989, we reversed the decision of the Arkansas Workers' Compensation Commission and remanded the matter for a new determination in accordance with our finding that the person who performed the audit was qualified to do so, and for the Commission to allow the appellee an opportunity to present evidence to rebut the findings set out in the audit. I agreed to the reversal and remand because I viewed the issue before us as the same old question of substantial evidence, even though it was presented in a new package. The test is well established. In order to reverse a factual decision of the Commission, we must be convinced that fair-minded men with the same facts before them, could not have arrived at the same conclusion arrived at by the Commission, Plastics Researchs&sDevelopment Co. v. Goodpaster, 251 Ark. 1029, 476 S.W.2d 242 (1972); and we affirm if reasonable minds could reach the Commission's conclusions, Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). See also Snow v. ALCOA, 15 Ark.App. 205, 691 S.W.2d 194 (1985).
However, in this case, much of the focus of the Commission was upon the appellee's method of bookkeeping. Each commissioner wrote a separate opinion. One thought the appellant's insurance carrier failed "to recognize that our society is changing from one that deals in paper to one that deals in electronic impulses." A concurring commissioner supported "the idea of auditing hospital bills" but thought there "must be more than simply a challenge of the hospital's record-keeping practices." The third commissioner, however, dissented on the basis that the appellee did not prove "by a preponderance of the evidence that the charges submitted were reasonable and necessary and that the services were in fact provided." Under all the circumstances, I think it was proper to reverse and remand this matter to the Commission to allow it to focus clearly on the factual issues it must decide.
I would point out that we have noted the fact that the reference in our original opinion to the argument made by appellant concerning Ark.Code Ann. § 11-9-517 (1987) was to a statute enacted after the hospital charges in this case occurred. Had appellee called our attention to the date of the enactment of the statute in its original brief--instead of its petition for rehearing--we probably would not have mentioned the statute in our opinion; however, we also note that appellee claims its charges would have been appropriate even if they were subject to that statute.