STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. FELIX FRESHWATER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0241

) TROY MANUFACTURING CO. ) and LIBERTY MUTUAL, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 19, 1988, in Fort Lauderdale, Florida.

Petitioner Dr. Felix Freshwater was represented by Joseph J. Finkelstein, Esquire, Miami, Florida, and Robert D. Klausner, Esquire, Hollywood, Florida; and Respondents Troy Manufacturing Co. and Liberty Mutual were represented by Irwin K. Renneisen, Esquire, Hollywood, Florida.

Petitioner Dr. Felix Freshwater provided medical services to an injured employee pursuant to the workers' compensation law. He submitted his bill for those professional services to Respondents Troy Manufacturing Co. and Liberty Mutual, the Employer/Carrier respectively. The Employer/Carrier paid only a portion of that medical bill. This cause was referred by the Department of Labor and Employment Security to the Division of Administrative Hearings for the conduct of a formal proceeding. Accordingly, the issues for determination herein are (1) whether this matter is properly before the Division of Administrative Hearings; (2) whether Petitioner's bill was properly coded in accordance with the Florida Workers' Compensation Reimbursement Manual, thereby entitling Petitioner to full reimbursement for services rendered; and (3) whether Petitioner was afforded the peer review provided for by statute, or by administrative rule.

Petitioner testified on his own behalf and presented by way of deposition, the testimony of Jay N. Wemple, M.D. Additionally, Petitioner's Exhibits numbered 1-10 were admitted in evidence. Respondents presented no evidence.

Although both parties requested leave to file post-hearing proposed findings of fact, only Petitioner did so. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On September 12, 1984, Petitioner performed surgery on Rigoberto Trueba who had suffered a complete amputation of his left thumb in an accident compensable pursuant to the workers' compensation law.

2. Petitioner submitted a bill to Respondents, the Employer/Carrier, in the amount of $4,308 for medical services rendered to Trueba on that date. That bill and accompanying medical reports were reviewed by Jay Wemple, M.D., an expert employed by Liberty Mutual, the workers' compensation insurance carrier for Troy Manufacturing Co. Liberty Mutual, through Dr. Wemple, only authorized payment to Petitioner in the amount of $3,120.

   
   

3. Petitioner subsequently rendered a bill in the amount of $300 for services rendered on October 4, 1984, as follow-up treatment for Trueba.

   
   

4. Following review of that bill by Dr. Wemple, Liberty Mutual only authorized payment of $54.

   
   

5. The carrier, Liberty Mutual, selected as the peer physician for purposes of review Dr. Jay Wemple, a general surgeon who retired in 1982. Dr. Wemple has never been Board certified. He has no specific training or education in the area of microvascular surgery. He has never performed a reimplantation of a severed digit. His testimony evidenced a lack of knowledge regarding both microvascular surgery and the anatomy of the hand.

   
   

6. The Florida Workers' Compensation Reimbursement Manual defines, at section 2-26, a "peer" for the purposes of peer review of medical bills as: "One who has an equal standing with another in a professional medical discipline."

   
   

7. It is clear and Dr. Wemple admits, that he is not a peer of, nor does he have equal standing to, Dr. Freshwater in the field of microvascular surgery. Dr. Freshwater has established himself both through training and experience as a prominent microvascular surgeon with expertise in injuries of the hand.

   
   

8. Petitioner testified in great detail as to the surgery performed on Trueba and the basis for each of the billing codes utilized by him in submitting his bills to Liberty Mutual. The procedures performed on Trueba were complex, requiring nerve repair and the utilization of a surgical microscope. Although the codes utilized by Petitioner in his billing do not necessarily make direct reference to the field of microvascular surgery and therefore require a detailed explanation of each procedure done, the codes used by Petitioner in his bills for services rendered on September 12 and October 4, 1984, are appropriate.

   
   

9. No evidence was offered as to the basis on which Liberty Mutual reduced the amount of Dr. Freshwater's bills. The only explanation offered by Respondents as to why Dr. Wemple recoded and then reduced the amount to be paid to Dr. Freshwater is his testimony that he "felt" that it was "fair" and "just." No evidence was offered as to what codes Dr. Wemple used in recomputing Petitioner's charges.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

11. Section 440.13, Florida Statutes, regulates the provision of medical services for injured employees, provides for the establishment of a maximum reimbursement schedule, sets forth the procedures for utilization review, and provides definitions for "peer review" and "peer review committee." Those statutory definitions of "peer" relate only to utilization review, are different

    from the definition of "peer" contained within the Florida Workers' Compensation Reimbursement Manual which defines "peer" for purposes of determining the appropriate code to use in submitting statements for medical services rendered, and are therefore inapplicable to this cause.

    
    

12. Although section 440.13 relates extensively to utilization review, subsection (4)(d)4. provides for some involvement of the Division of Workers' Compensation of the Department of Labor and Employment Security in a dispute regarding reimbursement for medical services, as follows:

    
    

    If it is determined that a physician improperly overutilized, or otherwise rendered or ordered, inappropriate medical treatment or services, or that the reimbursement for such treatment or services was inappropriate, the division may order the physician to show cause why he should not be required to repay the amount which was paid for the rendering or ordering of such treatment or services and shall inform him of his right to a hearing under the provisions of s. 120.57. If a hearing is not requested within 30 days of receipt of the order and the division director decides to proceed with the matter, a hearing shall be conducted, a prima facie case established, and a final order issued. If the final order, including judicial review if the order is annealed, is adverse to the physician, the division shall provide the licensing board of the physician with full documentation of such determination.

    
    

    In this case, Dr. Freshwater was paid only that amount determined by Liberty Mutual, through Dr. Wemple, to be appropriate, and the Division of Workers' Compensation has not issued an order to show cause.

    
    

13. Rule 38F-7.021, Florida Administrative Code, establishes administrative review procedures for disputes involving the payment of a claim for medical services as follows:

    
    

    1. In some instances, a provider may not agree with the adjustment of a particular medical service claim. The Workers' Compensation Program allows for the settlement of a dispute of this nature through a review process aimed at a mutually acceptable resolution.

       * * *

       1. When the adjustment of a medical service claim is considered unsatisfactory by the health care provider ... the following procedures apply:

          1. The party dissatisfied with the adjustment of the claim should notify the employer/carrier, identifying the specific

             patient and service in dispute and providing, amplifying and clarifying information. The employer/carrier should reconsider the medical service claim in light of the additional information and attempt to resolve the dispute.

          2. If the matter cannot be settled directly with the employer/carrier, the health care provider or health care facility may submit the disputed medical service claim with all pertinent information to the Division of Workers' Compensation Office of Medical Services for review. The Office of Medical Services will render an opinion on the disputed claim. If the Office of Medical Services determines that an opinion from the expert medical consultants who are recommended and approved pursuant to Section 440.13(1)(a) Florida Statues, will assist in the evaluation of the claim and resolution of the dispute, the claim and related documents may be referred to the appropriate expert medical consultants for their review and recommendations.

          3. Copies of the determination of the Workers' Compensation Medical Consultant shall be furnished to the health care provider, or the health care facility, the employer/carrier and any other interested parties. If the determination is adverse to the health care provider or health care facility, the determination shall be furnished to them by registered mail.

          4. If the Division finds excessive charges resulting from treatment, services or supplies which were not medically necessary nor justified, it shall order that the health care provider or health care facility not be reimbursed for the excessive charges. If the charges have already been paid, the division may order the health care provider or the health care facility to show cause why he should not be required to repay to the employer/carrier the amount which was paid for the rendering or ordering of such treatment or services. The Division shall advise the health care provider or the health care facility of his right to a hearing under the provisions of Section 120.57, Florida Statutes. If a hearing is not requested within 30 days of receipt of the Division's order to show cause, the Division may proceed to conduct a hearing, establish a prima facie case and issue a final order. If the final order, including any judicial proceedings, is

       adverse to the health care provider or health care facility, the Division shall provide the appropriate licensing authority with full documentation of such determination.

       
       

       In this cause, the Department of Labor and Employment Security chose not to participate in the final hearing, and the record does not reflect Department's position regarding the correct coding of the services rendered by Petitioner to Trueba. The record further fails to contain a copy of any determination made by any Workers' Compensation Medical Consultant. It is interesting to note that the rule only covers resolution of disputes under some circumstances, i.e., the Division of Workers' Compensation can determine that a health care provider not be reimbursed for excessive charges, and the Division may order a health care provider to show cause why he should not be required to repay the amount paid to him. No authority is given to anyone pursuant to either the statute or the rule to resolve the dispute in the event that the health care provider, and not the carrier, be the prevailing party.

       
       

14. At the commencement of the final hearing in this cause counsel for Petitioner raised the question of the adequacy of this proceeding by arguing that this proceeding fails to constitute an adequate remedy and that, therefore, the question of Dr. Freshwater's fees is appropriate for determination by a Deputy Commissioner under the provisions of section 440.25, Florida Statutes. Petitioner further argued that the procedure set forth in section 38F-7.021, Florida Administrative Code, provides no real remedy to the health care provider. It appears that the provisions of section 38F-7.021 are designed for the purpose of policing excess charges by health care providers to provide a means for disciplining those health care providers who engage in unnecessary medical procedures or who submit unreasonable medical charges. The present case, however, involves a situation where the provider has not received monies to which he believes he is entitled. To the extent that section 38F-7.021 provides for some peer review of appropriate codes and charges it is clear that no peer review has been provided for Dr. Freshwater by either the Division of Workers' Compensation or by the Employer/Carrier for the reason that Dr. Wemple is clearly not a "peer" of Dr. Freshwater as defined by that rule.

    
    

15. The Division of Workers' Compensation has indicated in an Agreement of Settlement reached in DOAH Case Nos. 84-4009 and 87-0237 that it will not issue any show cause orders against Dr. Freshwater in the future and that Dr. Freshwater is free to have his bills reviewed by Deputy Commissioners. Similarly, Dr. Freshwater should be permitted to present his claim in this case to the Deputy Commissioner in the underlying workers' compensation proceeding for the following reasons.

    
    

16. Section 38F-7.021 does not contain a complete procedure. It vaguely provides for some system of peer review but only provides that the health care provider be informed as to whether his claimed fees will be honored. It provides for no judicial review or other means of achieving any final determination. In Southern Bell Telephone and Telegraph Co. v. Mobile America Corp., Inc., 291 So.2d 199 (Fla. 1974), the Supreme Court held that one is not required to pursue administrative remedies where the remedies would be of no avail. The procedures under section 38F-7.023 apply only in cases where the health care provider is accused of excessive or unnecessary charges. In the present case, there is an absence of such allegations, and the matter is more appropriately before a Deputy Commissioner.

17. In section 440.25(1), Florida Statutes, the Deputy Commissioner is empowered with the authority to hear and determine all questions concerning workers' compensation benefits. It is axiomatic that the ability of workers in the state of Florida to receive quality health care is among the primary benefits of the Workers' Compensation Act. The failure of physicians to receive prompt and adequate payment may result in a serious diminution of the number and quality of physicians willing to render medical services to the injured workers of this state.

    
    

18. Deputy Commissioner Judith Brechner analyzed this particular issue in her order dated May 1, 1987, in the case of Segovia v. Joseph Jowers Harvesting and Crims, Inc., Claim No. 467-94-3056. Commissioner Brechner held that physicians such as Dr. Freshwater have standing, notwithstanding the provisions of rule 38F-7.021, to bring claims directly before a deputy commissioner and further found that section 440.25(1), Florida Statutes, empowers deputy commissioners to determine all questions in respect to claims for compensation, including the payment of physicians' bills. See also, Travelers Ins. Co. v. Sitko, 496 So.2d 920 (Fla. 1st Dist. 1986).

    
    

19. Dr. Freshwater mace it clear in this administrative hearing that he preferred to have his claim resolved before a deputy commissioner in order that full relief could be granted. Rule 38F-7.021, Florida Administrative Code, does not diminish the statutory authority of the deputy commissioner. Accordingly, there is no statutory or case law basis for requiring Dr. Freshwater, under the facts of this case, to pursue this administrative remedy, and he should be entitled as a matter of law to present his claim directly to the deputy commissioner in the underlying workers' compensation proceeding for the resolution of all claims concerning the underpayment of his bill for medical services. This is especially true since nothing in section 440.13, Florida Statutes, and nothing in rule 38F-7.021, Florida Administrative Code, authorizes a Hearing Officer from the Division of Administrative Hearings to order payment of a claim to a health provider and nothing authorizes a Hearing Officer from the Division of Administrative Hearings to award interest, costs, and attorneys' fees in connection with workers' compensation benefits. No remedy is authorized by statute or rule to be awarded by the Hearing Officer in this proceeding. Therefore, there is no adequacy of remedy in this proceeding, and it is axiomatic that no person is required to exhaust an administrative remedy which will not offer adequate relief.

    
    

20. Assuming, arguendo, that there is relief authorized to be given in this proceeding, it is clear from the evidence presented that Dr. Freshwater has not received an appropriate "peer" review. The evidence presented herein establishes that the insurance carrier relied upon a retired general surgeon with no experience or training in the field of microvascular surgery. Dr. Wemple admitted that he is not a peer, nor does he have equal standing, to Dr. Freshwater in the field of microvascular surgery. No evidence was presented by Respondents to rebut the admission of their own expert. Accordingly, the only competent substantial evidence offered herein establishes conclusively that Dr. Freshwater's bills did not receive a review by one sufficiently familiar with the technique to be considered his peer.

    
    

21. Assuming that the undersigned has the authority to determine the appropriate amount for Dr. Freshwater's bill, there is no evidentiary basis upon which to find that Dr. Freshwater's bills are not appropriate. The only evidence offered by Respondents in support of their position is Dr. Wemple's statement that he recommended the reduction of Dr. Freshwater's bill because it was "fair" and "just." Contrasted to that evidence is Dr. Freshwater's detailed

testimony concerning each of the billing codes and his reasons for their selection. Accordingly, Dr. Freshwater's testimony is both logical and uncontroverted, and the only conclusion that can be reached is that Dr. Freshwater properly billed for his medical services rendered to Trueba.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered transferring this cause to the appropriate Deputy Commissioner for consideration in the underlying workers' compensation proceeding. In the alternative, a Final Order should be entered finding that Dr. Freshwater is entitled to full payment of the bills submitted for his services together with interest, costs and attorneys' fees.

DONE and RECOMMENDED this 13th day of September, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0241

Petitioner's proposed finding of fact numbered 17 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or recitation of the testimony. The remainder of Petitioner's proposed findings of fact have been adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

Hugo Menendez, Secretary Department of Labor and

Employment Security

206 Berkeley Building

2590 Executive Center, East Tallahassee, Florida 32399-2152

Robert D. Klausner, Esquire 1922 Tyler Street

Hollywood, Florida 33020

Joseph J. Finkelstein, Esquire

28 West Flagler Street Miami, Florida 33130

Irwin K. Renneisen, Esquire 2620 Hollywood Boulevard

Hollywood, Florida 33020

Michael J. Rudicell, Esquire Department of Labor and

Employment Security Montgomery Building, Suite 131 2562 Executive Circle, East Tallahassee, Florida 32301

Docket for Case No: 87-000241

Orders for Case No: 87-000241