STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT FRANKL, D.C., )

)

Petitioner, )

)

vs. ) CASE NOS. 92-7408

) 92-7409

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF WORKERS' COMPENSATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November 17, 1993, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties were as follows:

APPEARANCES

For Petitioner: Kenneth A. Wolis, Esquire

4601 Sheridan Street, 5th Floor Hollywood, Florida 33021

For Respondent: Michael G. Moore, Esquire

Florida Department of Labor and Employment Security

Suite 307, Hartman Building 2012 Capital Circle, Southeast

Tallahassee, Florida 32399-2189 STATEMENT OF THE ISSUES

This proceeding involves disputes as to whether, based on the 1988 Florida Workers' Compensation Reimbursement Manual, the Petitioner is entitled to additional payments for services provided to two patients beyond what he has already been paid.

PRELIMINARY STATEMENT

At the formal hearing on November 17, 1993, the Petitioner testified on his own behalf and also presented the testimony of one patient and the testimony of three chiropractic physicians. The Petitioner offered twelve exhibits, ten of which were received in evidence. 1/ The Respondent presented the testimony of one witness and offered seventeen exhibits, all of which were received in evidence.

At the conclusion of the formal hearing the parties were also afforded an opportunity to submit evidence regarding the appropriate amount of an attorneys

fee that had been awarded to the Respondent by order dated March 10, 1993. The Petitioner presented the testimony of one witness in that regard. The Respondent submitted an affidavit in support of its claim for attorney's fees. The issues regarding the award of attorney's fees are addressed in a separate Order Regarding Attorney Fees issued on the same day as this Recommended Order.

A transcript of the formal hearing was filed with the Hearing Officer on December 2, 1993, and the parties were allowed until January 3, 1994, within which to file their proposed recommended orders. The Respondent filed a timely proposed recommended order on January 3, 1994. The Petitioner filed a tardy proposed recommended order on January 12, 1994. 2/ The parties' proposals have been carefully considered during the preparation of this Recommended Order.

Specific rulings on all findings of fact proposed by all parties are contained in the Appendix hereto.

FINDINGS OF FACT

1. Petitioner, Robert Frankl, is a chiropractor duly licensed to practice chiropractic medicine in the State of Florida.

   
   

2. The Respondent, Department of Labor and Employment Security, Division of Workers' Compensation, is the administrative agency statutorily charged with administering the workers' compensation laws and administrative rules.

   
   

3. In carrying out its statutory mission the Division promulgated the 1988 Workers' Compensation Reimbursement Manual as Rule 38F-7.020, Florida Administrative Code.

   
   

4. The 1988 Workers' Compensation Reimbursement Manual establishes the maximum reimbursement allowances and reimbursement policies that are applicable to the workers' compensation system in the State of Florida.

   
   

5. The Petitioner treated Ivan Rothstein for his work related injuries on 10/23/90, 11/30/90, 1/26/91, 2/23/91, 3/23/91, and 5/22/91. On each of these dates the Petitioner billed Liberty Mutual for the following codes:

medicine treatment.

1. Petitioner was reimbursed for the physical medicine treatment procedure codes, but was not reimbursed for procedure code 90080 and contends that he is entitled to receive reimbursement for same in the amount of $210 (six dates times $35=$210).

   
   

2. Providers receiving reimbursement for physical medicine services cannot be reimbursed for office visits (for reexaminations) billed for on the same day

   unless the provider can provide documentation complying with the criteria set forth in Part X, E., of the 1988 Workers' Compensation Reimbursement Manual. The cited provision appears at pages 57 and 58 of the manual and reads as follows:

   
   

   E. Follow-up Office Visits.

   
   

   A follow-up office visit for re-examination of established patient may be reimbursed in addition to physical medicine treatment only when:

   1. There is a definitive change in the patient's condition.

   2. The patient fails to respond to treatment.

   3. The patient reaches maximum medical improvement (MMI) or is ready for discharge.

   4. The physician submits substantiating documentation to the carrier.

   
   

3. The 1988 Workers' Compensation Reimbursement Manual also includes the following at page 4 of the manual:

   
   

   III. Criteria for Documentation of Medical Necessity.

   
   

   When it is necessary to substantiate that any service is medically necessary, supporting documentation must be provided by the prescribing physician. Such documentation should include . . .

   1. Objective findings which substantiate the need for the medical care and treatment.

   2. The estimated period of time and the estimated number of services required for treatment.

   3. The anticipated benefits to the patient.

   4. The reasons for continuing treatment, if applicable.

   
   

4. Part V., H., of the 1988 Workers' Compensation Reimbursement Manual also provides, at page 9:

   
   

   It is the responsibility of the physician to submit substantiating documentation to the carrier if it is medically necessary to exceed any of the limitations or exclusions of this manual. The carrier's approval should be based upon, but not be limited to, medical necessity, measurable improvement and potential achievement of expected goals.

   
   

5. The documentation that the Petitioner provided did not meet the criteria set forth in the reimbursement manual to establish the Petitioner's entitlement to reimbursement for the reexaminations billed for.

6. The Petitioner treated Angel Lugo for his work related injuries on February 25, 1991. The Petitioner billed FEISCO for the following codes for radiologic examinations taken on February 25, 1991:

   
   

   Procedure Code	Description	MRA
   72114	Radiologic examination, spine, lumbosacral; anteroposterior and lateral. . . . complete, including bending views	$70
   92070	Radiologic examination,
   [72070] 92170	spine; thoracic, anteroposterior and lateral Radiologic examination	$40
   [72170]	pelvis; anteroposterior only	$35

   
   

   Petitioner in error listed codes 92070 and 92170 which should have been 72070 and 72170 respectively.

   
   

7. Petitioner was reimbursed $70 for code 72114, but was disallowed reimbursement for 72070 and 72170. Petitioner contends that he is entitled to receive $75 in additional reimbursement for codes 72070 and 72170.

   
   

8. The 1988 Workers' Compensation Reimbursement Manual provides in pertinent part, at page 64:

   
   

   3. Reimbursement.

   * * *

   c. Certain radiology studies have procedure codes which list complete body areas, as well as the individual sections of body areas, as separate entities. When x-rays of multiple sections of a body area are billed separately, the total reimbursement must not exceed the provider's charge or the MRA of the complete body area study, whichever is less.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these consolidated proceedings. Section 120.57(1), Florida Statutes.

   
   

10. The burden of proof in this case is on the Petitioner, the party asserting the affirmative of the issue that is the subject matter of these consolidated proceedings. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 249 (Fla. 1st DCA 1977).

11. Section 440.13(2)(j)1, Florida Statutes (1992 Supp.), provides in pertinent part:

    
    

    The division [of Workers' Compensation] shall . . . also resolve reimbursement disputes based on criteria to be established by rule.

    
    

12. Pursuant to its rulemaking authority the Division of Workers' Compensation promulgated Rules 38F-7.514 through 7.519, Florida Administrative Code, as its "Disputed Reimbursement Rule."

    
    

13. The Petitioner was disallowed reimbursement for certain reexaminations and x-rays provided to patients Ivan Rothstein and Angel Lugo, respectively. Petitioner disputed the carrier disallowances of reimbursement and requested that the Division resolve his disputes with the carriers.

    
    

14. With regard to the issue of reimbursement for reexaminations, the Division of Workers' Compensation interprets part X, E., of the 1988 Workers' Compensation Reimbursement Manual to preclude the Petitioner from receiving reimbursement for both office visits for a reexamination and physical medicine services billed for on the same day unless the provider can provide documentation complying with the criteria set forth in Part X, E., of the Reimbursement Manual. This interpretation is correct and the greater weight of the evidence is to the effect that the Petitioner has failed to provide documentation sufficient to meet the criteria set forth in the reimbursement manual. Accordingly, the Petitioner is not entitled to any additional reimbursement for the services he provided to patient Ivan Rothstein.

    
    

15. With regard to the issue of reimbursement for x-rays, the Respondent's analysis and interpretation of the Reimbursement Manual are flawed. Procedure code 72114 (for which the Petitioner was reimbursed in the correct amount) is a "complete body area" study within the meaning of the language at page 64 of the Reimbursement Manual (quoted in paragraph 14, above). However, the "complete body area" encompassed by procedure code 72114 is the lumbosacral area of the spine; not the entire spine. Procedure code 72070 encompasses certain x-rays of the thoracic spine. Procedure code 72170 encompasses certain x-rays of the pelvis. Neither the thoracic spine nor the pelvis are part of the lumbosacral area of the spine. Inasmuch as procedure codes 72070 and 72170 involve areas of the body that are separate and distinct from the "complete body area" encompassed by procedure code 72114, the quoted language from page 64 of the Reimbursement Manual has no application and the Petitioner is entitled to reimbursement at the rate provided in the manual for procedure codes 72070 ($40.00) and 72170 ($35.00) for a total of $75.00.

    
    

16. At the formal hearing the Petitioner's counsel asserted an entitlement to an award of attorney's fees for his services in these consolidated cases. Petitioner's counsel did not cite any statutory basis for an award of such fees. The Hearing Officer has not discovered any statutory basis for an award of such fees. Accordingly, there does not appear to be any basis for an award of such fees.

    
    

17. In his proposed recommended order the Petitioner asserts that the three expert witnesses who were called to testify on his behalf are entitled to have their expert witness fees paid. In the absence of a statute or rule providing otherwise, such fees are normally paid by the party who called the

expert witnesses. There is nothing in the record of these two consolidated cases to indicate that it should be otherwise here.

RECOMMENDATION

On the basis of all of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered in these two consolidated cases to the following effect:

1. Concluding that the Petitioner is entitled to additional reimbursement in the amount of $75.00 for procedure codes 72070 and 72170 with regard to his treatment of patient Angel Lugo;

   
   

2. Concluding that the Petitioner is not entitled to any additional reimbursement with regard to his treatment of patient Ivan Rothstein; and

   
   

3. Concluding that all other relief claimed by the Petitioner should be denied.

DONE AND ENTERED this 8th day of July 1994 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July 1994

ENDNOTES

1/ Petitioner's exhibits 8 and 12 were not received in evidence.

2/ Rather than spending time and effort to inquire as to why the Petitioner's proposed recommended order was filed late, the proposal has been treated as timely filed and has been fully considered during the preparation of this Recommended Order. Nevertheless, the Hearing Officer feels constrained to mention that the tardy filing of proposals without benefit of explanation or motion for extension of time is a risky practice. In the future, counsel should not be surprised if they receive orders directing them to show cause why such tardy submissions should not be stricken.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties:

Proposed findings submitted by Petitioner.

Paragraphs 1 through 4: Accepted.

Paragraph 5: Accepted in part and rejected in part. Accepted that the Petitioner was not reimbursed for procedure code 90080. The remainder of paragraph 5 is rejected as contrary to the greater weight of the evidence.

Paragraph 6: Rejected for several reasons primarily because it is based on hearsay evidence that would not be admissible over objection in a civil action and is not otherwise supported by competent substantial evidence. Further, this paragraph incorporates a conclusion or opinion that is contrary to the greater weight of the evidence.

Paragraphs 7 and 8: Accepted.

Paragraph 9: Rejected as constituting argument or conclusions of law rather than proposed findings of fact. (The attorney's fees issue has been addressed in a separate order.)

Paragraph 10: Rejected as constituting argument or conclusions of law rather than proposed findings of fact. (In any event, the arguments and conclusions in this paragraph are unfounded.)

Proposed findings submitted by Respondent.

Paragraphs 1 through 15: Accepted.

Paragraph 16: Rejected as unnecessarily repetitious and as suggesting an incorrect inference.

Paragraph 17: Rejected as irrelevant to the disposition of the merits of these two consolidated cases. The attorney's fees issue has been addressed in a separate order.

COPIES FURNISHED:

Kenneth A. Wolis, Esquire 5th Floor

4601 Sheridan Street

Hollywood, Florida 33021

Michael G. Moore, Esquire Florida Department of Labor and

Employment Security

Suite 307, Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399-2189

Shirley Gooding, Secretary Department of Labor and

Employment Security

303 Hartman Building

2012 Capital Circle Southeast Tallahassee, Florida 32399-2152

Edward A. Dion, General Counsel Department of Labor and

Employment Security

307 Hartman Building

2012 Capital Circle Southeast Tallahassee, Florida 32399-2189

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY

ROBERT FRANKL, D.C.,

Petitioner,

DLES CASE NO. 94-0088-DWC

vs. DOAH CASE NOS. 92-7408

92-7409

DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF WORKERS' COMPENSATION,

Respondent.

/

FINAL ORDER

On July 8, 1994, the assigned Hearing Officer, Michael M. Parrish, of the Division of Administrative Hearings (DOAH) submitted his Recommended Order to the Department of Labor and Employment Security (DLES) in the above-styled consolidated cases. A copy of that Recommended Order is attached hereto and incorporated herein by reference.

On July 20, 1994, the Petitioner, Robert Frankl, D.C., filed an Objection to Recommended Order which will be treated as Written Exceptions to the Recommended Order with the Department. The matter is now before me for the purpose of issuing final agency action.

PREFACE

The Petitioner filed exceptions to the Recommended Order disputing portions of the Hearing Officer's Conclusions of Law and Recommendations. Before ruling on the exceptions, it is appropriate to comment on the standard of review imposed on an agency in reviewing recommended orders submitted by DOAH hearing officers.

Pursuant to section 120.57(1)(b)1O., Florida Statutes (1993), an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. The agency may not reject or modify findings of fact made by the hearing officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See, e.g., Freeze v. Department of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent substantial evidence is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached. DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)

The agency cannot reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those matters are within the province of the hearing officer. Goss v. District School Board of St. Johns County, 601 So.2d 1232 (Fla. 5th DCA 1992); and Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the Department is bound by such a finding. Florida Department of Business Regulation v. Bradley, 510 So.2d at 1123.

The agency is free to exercise its judgment and to reject the Hearing Officer's conclusions of law. See, e.g., MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3rd DCA 1987); Siess v. Department of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); and Alles v.

Department of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982)

RULING ON PETITIONER'S WRITTEN EXCEPTIONS TO THE RECOMMENDED ORDER

1. The Petitioner's exceptions numbered 1 through 7 except to the Hearing Officer's Conclusions of Law in paragraph 20 of the Recommended Order. Petitioner's exceptions merely reargue the same evidence presented to the Hearing Officer at the final hearing. Attached to the Petitioner's exceptions, are copies of the same exhibits Petitioner presented at the final hearing. The Petitioner's reargument of the same evidence presented to the hearing officer is cumulative. The Hearing Officer found by the greater weight of the evidence that the Petitioner failed to provide documentation justifying additional reimbursement for treatment of Ivan Rothstein. The Hearing Officer's legal conclusions substantially comply with the law as applied to the underlying factual findings, which were based on competent, substantial evidence. (T. 119- 122; 132-164). Consequently, the Petitioner's exceptions numbered 1 through 7 are denied.

   
   

2. The Petitioner's exception following exception number 7, is numbered "(2)", but will be treated as number 8, essentially excepts to the Hearing Officer's Conclusion of Law in paragraph 23. The Hearing Officer concluded that there was no statute or rule providing for the payment of expert witness fees by the opposing party in administrative proceedings pursuant to section 120.57, Florida Statutes, before the Division of Administrative Hearings. Petitioner's reliance upon section 440.31, Florida Statutes, to support his request for an award of expert witness fees in a proceeding governed by the administrative procedures act, chapter 120, Florida Statutes, is misplaced. See, Rule 60Q- 2.021, Florida Administrative Code. The Hearing Officer's legal conclusions substantially comply with the law. Consequently, the Petitioner's exception 8 is denied.

FINDINGS OF FACT

1. The Findings of Fact as set forth in the Recommended Order are adopted and incorporated herein by reference.

   
   

2. There is competent substantial evidence to support the Findings of Fact.

CONCLUSIONS OF LAW

1. The Department of Labor and Employment Security, Division of Workers' Compensation has jurisdiction of this matter pursuant to section 440.13(2)(j) 1, Florida Statutes (1993), and Rules 38F-7.514 - 7.519, Florida Administrative Code.

   
   

2. The Conclusions of Law set forth in the Recommended Order are adopted and incorporated herein by reference, with the exception of paragraph 21.

   
   

3. Paragraph 21 of the Hearing Officer's Recommended Order concluded that procedure code 72114 is not a "complete body area study" within the context of page 64 of the 1988 Reimbursement Manual: because code 72114 encompasses only the lumbosacral area of the spine; not the entire spine. For this reason the Hearing Officer concluded that the referenced provision from page 64 of the 1988 Reimbursement Manual had no application. The referenced provision 3.c. from page 64 of the 1988 Reimbursement Manual provides:

Certain radiology studies have procedure codes which list complete body areas, as well as the individual section of the body areas, as separate entities. When x-rays of multiple sections of a body area are billed separately, the total reimbursement must not exceed the provider's charge or the MRA of the complete body area study, whichever is less.

The Hearing Officer did not consider the procedure code for the complete body area study of the spine, which is 72010, and which is described as "Radiologic examination, spine, entire, survey study, anteroposterior and lateral." The maximum reimbursement allowance for procedure code 72010 is $60. Pursuant to provision 3.c., set forth above, Petitioner's total reimbursement for the procedure codes billed, i.e. 72070, 72170 and 72114, must not exceed the maximum reimbursement allowance of the complete body area study of the spine. Since the Petitioner was reimbursed $70 for procedure code 72114, an amount in excess of the maximum reimbursement allowance for code 72010 (complete study of the spine), the Petitioner is not entitled to any additional reimbursement for procedure codes 72070 and 72170.

CONCLUSIONS

Upon review of the Recommended Order and after a review of the complete record in this case, and having ruled on all of the exceptions filed by the Petitioner, the Department hereby adopts and incorporates by reference the Findings of Fact and Conclusions of Law, except paragraphs 21 of the Conclusions of Law and 1 of the Recommendation as modified herein, set forth in the Recommended Order.

Based upon the foregoing, it is accordingly ORDERED and ADJUDGED that:

1. The Petitioner is not entitled to any additional reimbursement with regard to his treatment of patient Angel Lugo; and

   
   

2. The Petitioner is not entitled to any additional reimbursement with regard to his treatment of patient Ivan Rothstein; and

   
   

3. All other relief claimed by the Petitioner is denied.

THIS ORDER CONSTITUTES FINAL AGENCY ACTION. PURSUANT TO 120.68(2), FLORIDA STATUTES, JUDICIAL REVIEW OF THIS PROCEEDING MAY BE INSTITUTED BY FILING A NOTICE OF APPEAL IN THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. SUCH NOTICE OF APPEAL MUST BE FILED WITH THE DISTRICT COURT OF APPEAL WITHIN THIRTY (30) CALENDAR DAYS OF THE DATE THIS ORDER IS FILED IN THE OFFICIAL RECORDS OF THE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, AS INDICATED IN THE CERTIFICATE OF THE AGENCY CLERK BELOW, OR FURTHER REVIEW WILL BE BARRED.

DONE AND ORDERED this 6th day of October, 1994, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY

ANN CLAYTON, DIRECTOR

Division of Workers' Compensation

2728 Centerview Drive

Suite 301, Forrest Building Tallahassee, Florida 32399

CERTIFICATE OF THE AGENCY CLERK

I HEREBY CERTIFY that the above FINAL ORDER has been filed with the Agency Clerk of the Department of Labor and Employment Security this 6th day of October, 1994, and that a true copy has been furnished on this date by hand delivery or U.S. Mail to:

Kenneth A. Wolis, Esquire 5th Floor

4601 Sheridan Street

Hollywood, Florida 33021

Michael M. Parrish, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Edward A. Dion, General Counsel Department of Labor and

Employment Security

Suite 307, Hartman Building 2012 Capital Circle, S.E.

Tallahassee, Florida 32399-2189

Michael G. Moore, Esquire Department of Labor and

Employment Security

Suite 307, Hartman Building 2012 Capital Circle, S.E.

Tallahassee, Florida 32399-2189

NELDA J. ATKINSON, AGENCY CLERK

Department of Labor and Employment Security

Docket for Case No: 92-007408

Orders for Case No: 92-007408