Opinion
NO. 2017-CA-001606-WC
03-20-2020
HOLIDAY INN EXPRESS APPELLANT v. SHERRY LANGER; INJURED WORKERS PHARMACY; DR. MICHAEL MCGHEE; HON. JANE RICE WILLIAMS, ADMINISTRATIVE LAW JUDGE; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANT: Samuel J. Bach Henderson, Kentucky BRIEF FOR APPELLEE SHERRY LANGER: Jeffery A. Roberts Murray, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-08-85862 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, JONES, AND LAMBERT, JUDGES. ACREE, JUDGE: Holiday Inn Express (Employer) appeals the decision of the Workers' Compensation Board (Board) that vacates the March 7, 2017, opinion and order of the administrative law judge (ALJ). We reverse the Board's opinion and order, and remand with instructions to reinstate the ALJ's order, with the time constraints contained therein to begin upon entry of the Board's order reinstating.
FACTS AND PROCEDURE
The ALJ granted Sherry Langer workers' compensation benefits on March 25, 2013, for work-related injuries suffered while in the course and scope of her employment with the Employer. The ALJ determined the extent of Langer's workers' compensation award as follows:
Plaintiff shall recover from Defendant Employer, and/or its insurance carrier, such medical expenses including but not limited to provider's fees, hospital treatment, surgical care, nursing supplies, and appliances, as may be reasonably required for the cure and relief from the effects of the work-related injury which includes injury to the [left] shoulder and neck.
This excerpt taken from an order from the ALJ on March 25, 2013, says left shoulder. The Form 101 filed on May 25, 2008, says the injury was to her "right shoulder, right elbow, right arm, and neck."
Langer subsequently petitioned the ALJ to reconsider its March 25, 2013 order, and to expand the ruling to include her treatment for opioid abuse as a compensable consequence of her work-related injury. The ALJ ruled in Langer's favor and, at Langer's request, identified Dr. Michael McGhee as the provider of this compensable treatment.
Langer treated with Dr. McGhee until December 22, 2014. As it turns out, Dr. McGhee declined to participate in Kentucky's system of workers' compensation; therefore, he refused to send invoices to the Employer or the medical payment obligor. According to Langer, she paid Dr. McGhee directly.
In July 2013, Langer "submitted a Form 114 request for reimbursement . . . for many office visits beginning in 2012." (Board's Opinion Vacating & Remanding, September 8, 2017, p. 5). The form was submitted to the Employer's medical payment obligor, Kentucky Employers Safety Association (KESA). She also provided numerous generic receipts that neither coincided with the claimed dates of treatment or described the nature of the treatment. And she used the form to request reimbursement of mileage to attend treatment, and for prescription costs.
Request for Payment for Services or Reimbursement for Compensable Expenses pursuant to 803 KAR (Kentucky Administrative Regulations) 25:096 Section 12(1)b.
In an affidavit, KESA claims representative, Kathy Williams, stated "I have explained this situation to Ms. Langer. In particular, I have explained to her that without a bill from Dr. McGhee, there is nothing for KESA to pay." Williams' affidavit further stated:
Sometime following the Opinion and Award Ms. Langer informed me that she, Ms. Langer, continued to seek treatment with Dr. McGhee for opioid dependency, that she was aware Dr. McGhee would not bill KESA for these appointments and that she was going to pay for these appointments out of her own pocket. She submitted a request for reimbursement of these expenses. I have had conversations with Dr. McGhee's office to try
to have them bill us for these visits and have been informed that they do not treat workers' compensation patients and therefore will not bill us for these treatments.Williams then reiterated that Dr. McGhee "did not treat Kentucky workers' patients and therefore would not bill the compensation payments as insurance" to KESA directly.
However, Williams also indicated that Langer did receive some form of reimbursement in the past, though not for medical treatment. She said,
Once it was determined that Ms. Langer had been awarded treatment for opioid addiction with Dr. McGhee, Ms. Langer was paid $894.32 on November 25, 2013. This represented reimbursement for mileage requests for dates June 13, 2012 through July 12, 2013. Ms. Langer was also paid $68.46 on August 7, 2013 for reimbursement of out of pocket pharmacy expenses. Ms. Langer was provided with a pharmacy card to utilize to obtain her prescriptions at no cost to her but is not using it.
Because KESA rejected her reimbursement-for-treatment claim, Langer moved the ALJ to re-open and filed a medical fee dispute Form 112, pursuant to 803 KAR 25:012. The ALJ sustained Langer's motion and re-opened the claim. Langer then moved for clarification of the ALJ's order determining compensable treatment for opioid abuse.
"Section 1. Procedure. (1) A dispute regarding payment, nonpayment, reasonableness, necessity, or work-relatedness of a medical expense, treatment, procedure, statement, or service which has been rendered or will be rendered under [Kentucky Revised Statute (KRS)] Chapter 342 shall be resolved by an administrative law judge following the filing of a Form 112 (Medical Dispute)." 803 KAR 25:012.
After a period of abatement, the ALJ conducted a hearing and issued an order and opinion on March 7, 2017. The order stated:
It is hereby ordered, within 60 days of this order, KESA shall reimburse Plaintiff or Dr. McGee [sic] for expenses related to the work injury. Within 30 days of the date of this order, Plaintiff or Dr. McGee [sic] shall provide all paperwork required by the regulations to support any request for payment or reimbursement of expenses. The obligation of Defendant Employer shall commensurate within the limits set by the Kentucky Medical Fee Schedule.
Should Plaintiff or Dr. McGee [sic] fail to provide appropriate paperwork within 30 days, the charge will not be the liability of KESA or Defendant Employer. As noted above, KESA's obligation is no more than required by the statute and regulation.
Langer moved the ALJ to reconsider its decision. She argued the Employer waived its defenses by not filing a medical fee dispute within 30 days of receiving the Form 114 requesting reimbursement. She also argued she was entitled to her attorney fee costs, which the ALJ did not address in its March 7, 2017 order. The ALJ denied Langer's motion, but repeated that Dr. McGhee or Langer must provide to the Employer or its medical payment obligor missing documentation concerning her treatment. Langer's request for attorney's fees was denied.
Langer then appealed to the Board and argued that the ALJ failed to find that the Employer waived any objection to the request for reimbursement she submitted by failing to timely object or file a fee dispute. On September 8, 2017, the Board vacated the ALJ's March 7, 2017 order and remanded for further findings.
The Board said it was "apparent Langer, post-award, attempted to obtain reimbursement for expenses she had paid including travel, prescriptions, and office visits with Dr. McGhee [and] equally clear KESA did nothing to bring this before the ALJ for a determination." The Board's instructions on remand stated:
[T]he first determination which must be made is whether KESA/Holiday Inn Express timely contested the request for reimbursement. . . .The Employer appealed.
If so, then the ALJ may review the objections to reimbursement to Langer. If not, KESA/Holiday Inn Express has waived any such objections or defenses [to reimbursement]. . . .
The ALJ, in consideration of whether KESA/Holiday Inn Express appropriately contested the requests for reimbursement, shall consider whether sanctions should be assessed pursuant to KRS 342.310, and shall consider whether referral of this claim to the Commissioner of the of the Department of Workers' Compensation for consideration of the assessment of penalties pursuant to KRS 342.270 is appropriate.
STANDARD OF REVIEW
As an appellate court reviewing a Workers' Compensation Board decision, we must determine whether "the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). Absent such a finding, we will affirm the decision of the Board.
ANALYSIS
The Employer presents three arguments. First, it claims appeal to the Board was premature because the ALJ's order is interlocutory. Second, it claims the Board substituted its judgment for that of the ALJ. Finally, it asserts that a claim for reimbursement on Form 114 does not trigger a payment obligor's requirement to pay the claim or challenge it by motion to re-open pursuant to 803 KAR 25:096, Section 8.
We do not agree with the Employer that the Board improperly reviewed an interlocutory appeal. The order reviewed by the Board was a post-award, or post-disposition, order that modified a prior final disposition of Langer's claim.
Within the legislative scheme for addressing a worker's injury, claims are assigned to an ALJ who may implement certain procedures to expeditiously "aid in the disposition of the case." KRS 342.275(1). Prior to disposition by an order awarding or denying benefits, the ALJ "may . . . grant or deny any benefits afforded under this chapter, including interlocutory relief, according to criteria established in administrative regulations promulgated by the commissioner." KRS 342.275(2). Such interlocutory relief might take the form of temporary total disability payments. See KI USA Corp. v. Hall, 3 S.W.3d 355, 358 (Ky. 1999). Interlocutory relief is "appropriate only in instances where the affected individual 'will suffer irreparable injury, loss or damage pending a final decision on the application.'" Id. (quoting 809 KAR 25:010, Section 11(3)). We do not allow appeals of orders granting this pre-award interlocutory relief because it will impede the definitive goal of the legislative enactment - to assure "that a final resolution of the claim is reached as soon as the worker's permanent occupational disability can be assessed. The regulations governing interlocutory relief take this into account." Id.
This was not the posture of the claim when the challenged orders were entered. That is, the Board was not reviewing a pre-award order.
In this case, final resolution was reached when Langer was found to have a 10% impairment rating, enhanced by the two-multiplier of KRS 342.730(1)(c)2. That was a final order and it was entered, as amended, on March 25, 2013. See 803 KAR 25:010, Section 22(2)(b). The regulation just cited says "a final award, order, or decision shall be determined in accordance with Civil Rule 54.02(1) and (2)." CR 54.02(1) speaks of judgments and "order[s] or other form of decision, however designated," as adjudicating the claims of parties. Furthermore, CR 54.01 says: "A final or appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding . . . ." "Final order" and "final judgment" are synonymous.
Kentucky Rules of Civil Procedure.
In civil actions in our courts, as well as within the framework of the Workers' Compensation Act, parties frequently engage in post-award, i.e., post-final-order motion practice for a variety of reasons. Circumstances arising after entry of the final order sometimes must be brought to the attention of the tribunal and addressed. Such orders are not interlocutory. See White v. Hardin County Bd. of Educ., 307 S.W.2d 754, 756 (Ky. 1957) (denial of CR 60.02 motion is final and appealable). Additionally, it is not uncommon for a party having difficulty collecting what has been awarded in a final order to seek the tribunal's assistance in that effort. The tribunal's order granting such relief is not interlocutory; it is executory, post-judgment, and available to a party as post-final-order circumstances require it.
The Employer next argues the Board improperly substituted its judgment for that of the ALJ. It reasons that despite a record supporting the tribunal's finding of no substantiation for Dr. McGhee's services, the Board must have found, at least implicitly, that there was. The Board held that neither the Employer nor the medical payment obligor "ever filed a challenge to the . . . reimbursement of medical bills Langer paid out-of-pocket . . . ." Such a holding presumes the existence of medical bills for which there is no proof in this record.
The ALJ concluded the evidence (generic receipts for payment) was insufficient to support Langer's claim for reimbursement. The ALJ offered Langer a final opportunity to substantiate that claim with bills or invoices for the medical treatment. She appealed that decision to the Board which took a different view of the evidence.
The receipts Langer submitted are not evidence of treatment; they are two steps removed from such proof. The first step was Dr. McGhee's bill or invoice evidencing his treatment and her obligation to pay him. Her payment was the second step. Someone, presumably Dr. McGhee's bookkeeper, provided her with a receipt for payment - the third step. The ALJ concluded this evidence was not sufficient to support Langer's claim for reimbursement; i.e., the cash receipts did not constitute a "[s]tatement for services" as defined by 803 KAR 25:096 Section 1(5). We have examined the receipts and cannot say the ALJ's conclusion about this evidence is clearly erroneous. If the Board reversed the ALJ's decision because it found, without explicitly stating, that the evidence did constitute a "[s]tatement for services," then the Employer is correct, and the Board improperly usurped the ALJ's factfinding role.
However, we need not hold that the Board substituted its factfinding judgment for that of the ALJ. We presume the Board considered the same evidence the ALJ considered. That compels our holding that the Board misapplied the law to the facts of this claim.
The Board held as a matter of law that receipts for payment of a purported invoice for medical services, without any statement for services, are sufficient to trigger either payment or the challenge of the claim by the employer of medical care obligor. We cannot agree.
The Employer's obligation to pay for an employee's compensable medical treatment is found in KRS 342.020(1). "If the medical services provider[,]" in this case Dr. McGhee, "fails to submit a statement for services as required by KRS 342.020(1) without reasonable grounds, the medical bills shall not be compensable." 803 KAR 25:096 Section 6. Furthermore, any requirement to pay or challenge the claim for medical services is tolled if "[t]he medical provider submitted an incomplete statement for services" and as long as "[a] medical provider fails to respond to a reasonable information request from the employer or its medical payment obligor pursuant to KRS 342.020(4) . . . ." 803 KAR 25:096 Section 8(2)(a)-(b).
We conclude these same rules apply if an employee seeks reimbursement (the medical provider having refused to participate). Langer was required to submit to KESA the same quantum of proof that the compensable medical treatment was provided. That proof is defined in the regulations.
"'Statement for services' means . . . a completed Form HCFA 1500, . . . or other supporting documentation for the billed medical treatment [or] procedure . . . ." 803 KAR 25:096 Section 1(5). We are convinced that a simple slip of paper stating nothing more than that money was received does not constitute a "[s]tatement for services."
A HCFA 1500 form is used by the Health Care Financing Administration for health care claims. It is used to submit a bill or charge for health insurance coverage through Medicare, TRICARE (formerly CHAMPUS), group health care, or other forms of insurance.
Although "other supporting documentation" is rather general, the description of what constitutes a statement for services from a hospital is illustrative of what must be provided by any medical provider - a description of the medical service rendered. Examples include "legible treatment notes" or a "discharge summary[.]" Id. Langer never presented any proof descriptive of any compensable medical treatment she received and paid for.
The regulations also provide that if the medical payment obligor is not satisfied with the documentation of the provided medical service or treatment, it "shall promptly notify the medical provider [or in the case of a reimbursement claim, the employee] of a deficient statement and shall request specific documentation. The medical payment obligor shall tender payment or file a medical fee dispute within thirty (30) days following receipt of the required documentation . . . ." 803 KAR 25:096 Section 8(2)(a). KESA did make a good faith request for additional substantiation in the form of a statement for services that KESA and any medical provider would recognize, but she failed to provide it.
We wish to emphasize that this Court finds no reason to suggest Langer misrepresented either the number of her visits to Dr. McGhee or the amount he charged. But the applicable law will not support a rule that requires the employer to reimburse the employee based on Form 114 representations alone, even when supported by receipts for payments but that show no connection between those payments and the compensable treatment. That would invite the very thing of which we are expressly not accusing Langer.
Read together, 803 KAR 25:012 Section 1(6)(a) and KRS 342.020(4), require an employer to either pay or contest a medical fee dispute within 30 days of the receipt of a complete statement for compensable medical services. When a provider submits such proof that compensable treatment was provided, there is something to pay or contest. The rules must be equally applicable to reimbursement of the employee's out-of-pocket costs for compensable medical treatment.
"Unless utilization review has been initiated, the motion to reopen and Form 112 shall be filed within thirty (30) days following receipt of a complete statement for services pursuant to 803 KAR 25:096." 803 KAR 25:012 Section 1(6)(a) (emphasis added).
In relevant part, the statute states: "The employer, insurer, or payment obligor acting on behalf of the employer, shall make all payments for services rendered to an employee directly to the provider of the services within thirty (30) days of receipt of a statement for services. The commissioner shall promulgate administrative regulations establishing conditions under which the thirty (30) day period for payment may be tolled." KRS 342.020(4). --------
To compel reimbursement, the employee must collect that same statement for services from the provider for submission to the medical payment obligor. Until that statement for services is received, there is no obligation to reimburse. Similarly, the employer's challenge of a claim by use of a Form 112 is not prompted until receipt of "a complete statement for services pursuant to 803 KAR 25:096." 803 KAR 25:012 Section 1(6)(a). Langer never provided a complete, or even a partial, statement for services in this case.
Recognizing that the process was thwarted to a degree by Dr. McGhee's refusal to work directly with KESA, the ALJ provided Langer with additional time to obtain the doctor's statement for services, and time for KESA to reimburse or challenge the statement. It was a practical solution, well grounded in the applicable law. The Board's opinion and order rejecting the ALJ's order was not.
CONCLUSION
Based on the foregoing analysis, we reverse the Board's opinion and order, and remand with instructions to reinstate the ALJ's March 7, 2017 order, the time constraints contained therein to begin upon entry of the Board's order reinstating.
ALL CONCUR. BRIEF FOR APPELLANT: Samuel J. Bach
Henderson, Kentucky BRIEF FOR APPELLEE SHERRY
LANGER: Jeffery A. Roberts
Murray, Kentucky