STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF LABOR AND EMPLOYMENT )

SECURITY, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1921

)

DR. ROBERT K. FABRIC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on December 3, 1984, at Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Sonja P. Mathews, Esquire

Department of Labor and Employment Security

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

For Petitioner: Stuart F. Suskin, Esquire

Abrams, Suskin & Berglund 2750 Northeast 187th Street

North Miami Beach, Florida 33180-2990 PRELIMINARY STATEMENT

By letter dated April 16, 1984, Petitioner, Department of Labor and Employment Security, pursuant to Subsection 440.13(4)(d)4, Fla.Stat., ordered Respondent, Robert K. Fabric, M.D., to show cause why he should not repay certain monies alleged to constitute an overpayment for medical services rendered under the 1978 Workers' Compensation Medical and Surgical Fee Schedule. By letter dated May 2, 1984, Respondent timely requested a formal hearing pursuant to Subsection 120.57(1), Fla.Stat., and thereby raised the issue of whether additional compensation for the medical services rendered was justified because of their extraordinary nature.

At the final hearing Petitioner called Donna M. Reynolds as a witness.

Petitioner offered Exhibits 1 through 9, and they were received into evidence. Respondent testified on his own behalf, and offered Exhibits 1 through 7, which were received into evidence.

Proposed findings of fact and conclusions of law have been filed on behalf of both parties. The Hearing Officer has considered the proposed findings of fact and conclusions of law submitted. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the greater weight of the evidence, or as being subordinate, cumulative, immaterial, or unnecessary, or as being contrary to the facts found in this Recommended Order.

FINDINGS OF FACT

1. Respondent, Robert K. Fabric, is a doctor duly licensed to practice medicine in the State of Florida. Dr. Fabric specializes in plastic and reconstructive surgery, and is board certified.

   
   

2. From September 22, 1978, through November 13, 1978, Dr. Fabric treated Anne Rawls, a workers' compensation patient, for an injury received to her left thumb. Dr. Fabric submitted a WCC-2 form dated October 10, 1978, for reimbursement of medical and surgical services and WCC-9 forms dated November 7, 1978, and November 14, 1978, for reimbursement for postoperative medical services. Additional submissions included a copy of the emergency room record and Dr. Fabric's operative report.

   
   

3. Dr. Fabric's charges totaled $881.00, for which the carrier reimbursed

   $346.00. Petitioner contends Dr. Fabric was entitled to a reimbursement of only

   $138.00 and, therefore, was overpaid $203.00.

   
   

4. The following charges, with the exception of the Extensor Pollicis Tendon Repair, are in dispute:

   
   

   			Carrier	Max. Reim-
   Date Of		Provider	Reimburse-	bursement
   Service	Description	Charge	mint	Per Petitioner

   
   

   9/22/78 Debridement $ 35.00 $ 17.00 -0-

   
   

   Complex Plastic 160.00 160.00 -0- Repair 2cm

   L. Thumb

   
   

   Extensor Pollicis 550.00 103.00 $103.00 Tendon Repair

   Application of 35.00 -0- -0- Thumb Spica Splint

   
   

   9/28/78 Office Visit 35.00 11.00 -0-

   
   

   10/27/78 Office Visit 15.00 11.00 -0-

   
   

   11/13/78 Office Visit 15.00 11.00 -0-

   
   

5. The dispute between the parties on the surgical procedure centers on whether the debridement, complex plastic repair and application of the thumb spica splint are properly part of the entensor pollicis tendon repair, and, therefore, not reimbursable, or whether because of complexity they were separate surgical procedures which could be reimbursed separately.

6. The Workers' Compensation Medical and Surgical Fee Schedule authorizes the physician to utilize either the fee schedule or the five-digit Relative Value Studies (RVS) schedule. Dr. Fabric utilized the RVS schedules since they were more comprehensive and detailed than the workers' compensation fee schedule code. Even so, the code sections in the RVS schedule did not fully contemplate the extent of the procedure performed by the doctor. To reflect the additional degree of complexity, the suffix BR representing "By Report" was assigned by Dr. Fabric to reflect an adjustment of the charges.

   
   

7. The medical and surgical fee schedule specifically provides:

   
   

   BY REPORT": When the value of a procedure is to be determined "by report", information concerning the nature, extent and need for the procedure or services, the time,

   the skills, and equipment necessary, etc., is to be furnished.

   
   

8. Petitioner asserts that "BR" is not a proper modifier or suffix, and that it should only be used in the value columns of forms. Respondent concedes, however, that if the surgical procedure performed by Dr. Fabric for the complex repair was adequately described and documented, then these items properly would be reimbursable separately.

   
   

9. On September 22, 1978, Ms. Rawls was admitted to the emergency room of Memorial Hospital, Hollywood, Florida, for laceration to the dorsal proximal portion of her left nondominant thumb, which transected the extensor pollicis longus tendon causing it to retract into the patient's wrist.

   
   

10. Ms. Rawls was initially attended by Dr. Whipple, a member of the emergency room staff, who anesthesized and explored the wound. Dr. Whipple then contacted Dr. Fabric to make the wound repairs since it was, apparently, beyond Dr. Whipple's capabilities.

    
    

11. Dr. Fabric's labors were intensified because of the treatment previously rendered by Dr. Whipple. Because of the partial anesthesia, Dr. Fabric could not render an adequate sensory examination to determine whether any nerves, arteries, or veins had been cut. Consequently, such determination had to be accomplished in surgery. Further, Dr. Fabric had to completely excise the "unclean" wound and elevate flaps on either side of the wound, to insure the nerves, arteries, and veins were intact.

    
    

12. Dr. Fabric retrieved the tendon using a "tendon chaser," and completed a complex tendon repair by using a modified bunnel repair, reinforced repair at the site of the laceration, and a tension-relieving suture. The wound was closed and a thumb spica splint applied.

    
    

13. A thumb spica splint is a splint custom made by the physician at the time of application. In the instant case Dr. Fabric devoted 20 to 30 minutes applying the thumb spica splint to the patient, as opposed to using a simple finger splint which requires little expertise and only moments to fashion. In all, Dr. Fabric spent two and one-half to three hours with Ms. Rawls the night of her injury.

    
    

14. The sole remaining dispute between the parties involves the question of whether the office visits of 9/28/78, 10/27/78, and 11/13/78 are

    reimbursable. Dr. Fabric billed the major surgical procedure under RVS Code 26418, which equates to WC Code 1580. Under WC Code 1580, 60 follow-up days are included in the value for the surgical procedure.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

16. Section 440.13(4)(d)4, Fla. Stat., provides:

    
    

    4. If it is determined that a physician improperly overutilized or otherwise rendered or ordered inappropriate medical treatment or services, or that the cost of

    such treatment or services was inappropriate, the division may order the physician to

    show cause why he should not he 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 appealed, is adverse to the physician, the division shall provide the licensing board of the physician with full documentation of such determination.

    
    

    Consequently, the burden is upon Petitioner to establish by the greater weight of the evidence that the Respondent was overcompensated for the services rendered.

    
    

17. The complexity of the repair and the surgical procedures undertaken by Dr. Fabric were adequately described and documented in the WCC-2 form and the emergency room and operative reports which were submitted. This documentation established that a complex repair was effected which went beyond the code schedules normally utilized.

    
    

18. Whether "BR" was properly used as a code modifier or was more properly placed in the value column to justify separate reimbursement is inconsequential. The documentation submitted by Dry Fabric established that the extent of the surgical procedures performed and their degree of difficulty exceeded the parameters of the schedules contained in either the workers' compensation fee schedule or the RVS schedule.

    
    

19. Due to the complex nature of the repair, the debridement, complex plastic repair and application of thumb spica splint were separate procedures properly reimbursable. Dr. Fabric billed the extensor pollicis tendon repair as the major procedure, and the debridement, complex plastic repair and application of thumb spica splint at 50 percent, in accordance with 1978 Medical and Surgical Fee Schedule.

20. Petitioner asserts, however, that the 1978 Medical and Surgical Fee Schedule, adopted as a Rule by Petitioner, somehow precludes Dr. Fabric from "justifying" his charges or code usage in this proceeding. While there may be a good deal of wisdom in requiring strict adherence to the codes set forth in the workers' compensation medical and surgical fee schedule, there is no statutory or rule authority suggested which would preclude a physician from receiving appropriate compensation even if the wrong code were utilized.

    
    

21. Dr. Fabric billed the major surgical procedure under RVS Code 26418, which equates to WC Code 1580. Since under WC Code 1580, 60 follow-up days are included in the value for the surgical procedure, Dr. Fabric's reimbursement for the office visits 9/28/78, 10/27/78, and 11/13/78, in the total sum of $65.00 was improper.

    
    

22. Petitioner has failed to establish by the greater weight of the evidence that Respondent, Dr. Fabric, was overpaid for medical and surgical services rendered to Anne Rawls on September 22, 1978. However, Petitioner has established by the greater weight of the evidence that Respondent's reimbursement for the office visits of 9/28/78, 10/27/78, and 11/13/78, was inappropriate.

    
    

23. Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. Respondent's reimbursement for the office visits of 9/28/78, 10/27/78, and 11/13/78 was improper and that he was, consequently, overpaid $65.00.

   
   

2. In all other respects the show cause order be dismissed with prejudice.

DONE AND ENTERED this 25th day of January, 1985, at Tallahassee Florida.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1985.

COPIES FURNISHED:

Sonja P. Mathews, Esquire Department of Labor and

Employment Security

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

Stuart F. Suskin, Esquire Abrams, Suskin & Berglund 2750 N.E. 187th Street

North Miami Beach, Florida 33180-2990

Wallace Orr, Secretary Department of Labor and Employment Security

2590 Executive Center Circle, East Suite 206, Berkeley Building Tallahassee, Florida 32301

Docket for Case No: 84-001921

Orders for Case No: 84-001921