STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-4546

)

HERBERT GOLOFF, D.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 30, 1993, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael G. Moore, Esquire

Department of Labor and Employment Security Suite 307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

For Respondent: William J. McCabe, Esquire

Shepherd, McCabe & Cooley 1450 West S.R. 434, Suite 200

Longwood, Florida 32750 STATEMENT OF THE ISSUES

Whether pursuant to Section 440.13(4)(h), Florida Statutes (1992 Supp.), and Rule 38F-7.511(2), Florida Administrative Code, the Respondent should be deauthorized for the health care of Ruth Waddle and required to repay $7,354.68 for medical services rendered after June 14, 1988.

PRELIMINARY STATEMENT

On June 23, 1993, Petitioner issued an Order to Show Cause why he should not be deauthorized and required to repay the sum in question. By Petition dated July 22, 1993, Respondent, timely requested a formal hearing pursuant to Section 120.57, Florida Statutes. On August 12, 1993, this matter was referred to the Division of Administrative Hearings for hearing. Following transfer of the case to the undersigned, this matter was set for hearing.

At the final hearing, Petitioner called Mollie Frawley, Ronald Hoffman, Carlton Thomas Exum, and Ronald Lee Harris as witnesses. Petitioner offered 16 exhibits, which were received into evidence. Respondent testified on his own behalf and called Ruth Waddle and Paul James Yocom as witnesses. Respondent offered 6 exhibits, which were received into evidence. Both parties sought additional time in which to file proposals which was granted. A transcript was prepared and filed on December 17, 1993.

Both parties submitted proposed findings of fact and conclusions of law which were received on January 6 and 12, 1994, respectively. The undersigned Hearing Officer has carefully 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, as set forth in the appendix attached hereto. Based upon all of the evidence, the following findings of fact are determined.

FINDINGS OF FACT

1. Respondent, Herbert Goloff, D.C., is a chiropractor licensed to practice in the State of Florida.

   
   

2. From March 10, 1988, through September 3, 1991, Dr. Goloff treated Ruth Waddle, a Workers' Compensation patient, for lumbar myofascitis.

   
   

3. Lumbar myofascitis is an inflammation of the muscle and the fascia in the lumbar spine. Lumbar myofascitis is indicated by the following objective findings: recurrent spasms, limitation of motion, tender nodules, trigger point tenderness in the muscles, and taut or sensitive skin.

   
   

4. On June 14, 1988, the Respondent placed Ruth Waddle at maximum medical improvement (MMI). The Respondent treated Ruth Waddle 14 times before placing her at MMI. The Respondent treated Ruth Waddle a total of 171 times after MMI.

   
   

5. The Respondent is required to maintain documentation substantiating the treatment and services he rendered to Ruth Waddle in order to receive reimbursement for those services.

   
   

6. The Respondent is required to perform an initial history, make a diagnosis, and develop a plan of care and document his subjective and objective findings in his records. The Respondent is also required to keep notes reflecting his subjective and objective findings, his appraisal or assessment and his plan of action (SOAP notes) for the patient Ruth Waddle, in order to substantiate and justify that the medical treatment and services he renders are medically necessary.

   
   

7. If a health care provider cannot document that this treatment and services are medically necessary, he is not entitled to receive reimbursement for his services.

   
   

8. The Respondent's records indicate that there was unscheduled ongoing care of the patient after June 14, 1988. Whenever the patient was in pain she would come in to the Respondent's Office and ask for a treatment. Respondent was not practicing full time in 1988. The patient seldom scheduled an appointment. She frequently came in on a Tuesday, a day she knew that Respondent had office hours.

9. The patient would describe her symptoms to Respondent and he would perform various therapies, including mild adjustments. Respondent would make minimum entries in the patient's progress notes.

   
   

10. Respondent's treatment of the patient Ruth Waddle, after reaching MMI, for the temporary relief of pain was palliative care.

    
    

11. The Respondent's records indicate that there was inadequate testing of the patient Ruth Waddle to substantiate the medical necessity of treatment after June 14, 1988.

    
    

12. The Respondent's records do not contain a plan of care or treatment for Ruth Waddle.

    
    

13. The Respondents records do not contain an initial history for Ruth Waddle.

    
    

14. The Respondents records do not contain an evaluation of Ruth Waddle's physical condition at the time of MMI relative to muscle spasms and range of motion, as well as other neurological and orthopedic tests.

    
    

15. Respondent failed to maintain SOAP notes for the patient Ruth Waddle.

    
    

16. The Respondent's records do not contain objective medical findings to substantiate the medical necessity of services rendered to Ruth Waddle after June 14, 1988.

    
    

17. The Respondent's records do not substantiate the medical necessity of the frequency and duration of the treatment provided to Ruth Waddle after June 14, 1988.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Section 120.57(1), Florida Statutes.

    
    

19. Section 440.13(4)(h), Florida Statutes, provides:

    
    

    The Division of Worker's Compensation . . . is empowered to investigate health care providers

    . . . to determine whether they are in com- pliance with the rules adopted by the division

    . . . or if they are requiring unjustified treatment, hospitalization, or office visits. If the division finds that a health care pro- vider . . . has made such excessive charges or required such treatment, services, hospitali- zation, or visits, the health care provider

    . . . may not receive payment under this chap- ter from a carrier, employer, or employee for the excessive fees or unjustified treatment, hospitalization, or visits; furthermore, the health care provider . . . is liable to return to the carrier or self-insurer any such fees or charges already collected.

20. Section 440.13(4)(i)4, Florida Statutes, provides in pertinent part:

    
    

    If it is determined that a physician improper- ly 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.

    
    

21. Pursuant to its rulemaking authority, the Division incorporated the 1988 and 1991 editions of the Florida Workers' Compensation Health Care Provider Reimbursement Manual into Rule 38F-7.020(1), Florida Administrative Code. The reimbursement manuals require health care providers in the workers' compensation system to document the medical necessity of the services and treatment he provides.

    
    

22. The 1988 and 1991 Worker's Compensation Health Care Provider Reimbursement Manuals required the Respondent to maintain documentation substantiating medically necessary services. Respondent was required to maintain an initial history, plan of care or treatment, assessment, as well as the Respondent's subjective and objective findings. The Respondent was required to maintain such documentation in order to justify and substantiate that the services and treatment he provided to Ruth Waddle were medically necessary.

    
    

23. 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 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).

    
    

24. Petitioner has established by the greater weight of the evidence that the Respondent's records and documentation do not contain the required initial history, plan of care, adequate testing, subjective and objective medical findings, in order to substantiate that Respondent's treatment of Ruth Waddle after June 14, 1988, was medically necessary.

    
    

25. Petitioner has established by the greater weight of the evidence that the Respondent's records do not substantiate the medical necessity of the frequency and duration of the treatment provided to Ruth Waddle after June 14, 1988.

    
    

26. The patient sought out the Respondent for palliative care, after reaching MMI. However, Respondent failed to properly document that treatment. Therefore, Respondent should return the fees collected to the insurance company which amounted to the sum of $7354.68, as set forth in the Order to Show Cause dated June 23, 1993.

    
    

27. Pursuant to Section 440.13(4)(h) and (i)4., Florida Statutes, the Respondent is liable to return to the American States Insurance the amount of the charges collected for the subject services that the Petitioner has determined were not medically necessary.

28. Respondent's argument that the Stipulation and Joint Petition for Lump Sum Settlement, which was approved by a Judge of Compensation Claims, precludes the Division from issuing its Order to Show Cause based on the doctrine of res judicata is misplaced. The settlement only determined the rights and obligations of the employer and carrier and the patient. The Division and the Respondent were not parties to the Stipulation. The Division, and not a different forum, has jurisdiction to determine whether Respondent has fulfilled his requirements under the workers' compensation laws and rules. See: Napp- Deady Associates v. Ramsey, 599 So.2d 288 (Fla. 1st DCA 1992); Terners of Miami Corp. v. Freshwater, 599 So.2d 674 (Fla. 1st DCA 1992).

RECOMMENDATION

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

1. Respondent be determined to have failed to substantiate the treatment of Ruth Waddle after June 14, 1988.

   
   

2. The Respondent be ordered to return the sum of $7,354.68 to the American States Insurance Company for the fees that the Respondent collected in treating Ruth Waddle after June 14, 1988, when the patient reached MMI.

DONE and ENTERED this 30th day of March, 1994, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 30th day of March, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4546

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's proposed findings of fact.

Accepted in substance: paragraphs 1-14.

Respondent's proposed findings of fact.

Accepted in substance: paragraphs 2, 5(a), 5(b) (in part).

Rejected as against the greater weight of the evidence: paragraph 4, 5(b) (in part), 5(c).

COPIES FURNISHED:

Michael G. Moore, Esquire

Department of Labor and Employment Security Suite 307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, Florida 32399-2189

William J. McCabe, Esquire Shepherd, McCabe & Cooley 1450 West S.R. 434, Suite 200

Longwood, Florida 32750

Shirley Gooding, Secretary

Department of Labor and Employment Security Suite 303 Hartman Building

2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152

Cecilia Renn, Esquire Chief Legal Counsel

Department of Labor and Employment Security Suite 307 Hartman Building

2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their 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

DIVISION OF WORKERS )

COMPENSATION, )

)

Petitioner, )

) DLES CASE NO. 92-103-WC

vs. ) DOAH CASE NO. 93-4546

)

HERBERT GOLOFF, D.C., )

)

Respondent. )

)

FINAL ORDER

On March 30, 1994, the assigned Hearing Officer, Daniel M. Kilbride, of the Division of Administrative Hearings (DOAH) submitted his Recommended Order to the Department of Labor and Employment Security (DLES) in the above-styled case. A copy of that Recommended Order is attached hereto and incorporated herein by reference.

On April 11, 1994, the Respondent, Herbert Goloff, D.C., (Goloff) filed Written Exceptions to the Recommended Order with the Department. The matter is now before me for the purpose of issuing final agency action.

PREFACE

Goloff filed exceptions to the Recommended Order disputing portions of the Hearing Officer's Findings of Fact and Conclusions of Law. 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)10., 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 GOLOFF'S WRITTEN EXCEPTIONS TO THE RECOMMENDED ORDER

1. Goloff's exceptions 1 and 2 except to the Hearing Officer's finding of fact in paragraph 5 of the Recommended Order on grounds that there was no rule or regulation in effect at the time Goloff provided treatment to Ruth Waddle. The Hearing Officer found that Goloff is required to maintain documentation substantiating the treatment and services rendered. The Hearing Officer's finding of fact is supported by competent substantial evidence. (T. 24, 49, 89-91, 121-122, 126-131; Division Ex 1-3) Consequently, Goloff's exceptions 1 and 2 are denied.

   
   

2. Goloff's exception 3 excepts to the Hearing Officer's finding of fact in paragraph 6 of the Recommended Order on grounds similar to exceptions 1 and

1. The Hearing Officer found that Goloff is required to perform an initial history, make a diagnosis, develop a plan of care, and document his subjective and objective findings in order to substantiate and justify the medical necessity of the treatment he provided. The Hearing Officer's finding of fact is supported by competent substantial evidence. (T. 24, 49, 89-91, 121-122, 126-131, 143-144, 153-156, 168-169; Division Exhibits 1-3). Consequently, Goloff's exception 3 is denied.

   
   

2. Goloff's exception 4 excepts to the Hearing Officer's finding of fact in paragraph 7 of the Recommended Order. The Hearing Officer found that if a health care provider cannot document that treatment and services are medically necessary, he is not entitled to receive reimbursement. The Hearing Officer's finding of fact is supported by competent substantial evidence. (T. 98, 131; Division Exhibits 1-3). Consequently, Goloff's exception 4 is denied.

   
   

3. Goloff's exception 5 excepts to the Hearing Officer's finding of fact in paragraph 11. The Hearing Officer found that there was inadequate testing to substantiate the medical necessity of treatment rendered after June 14, 1988. The Hearing Officer's finding of fact is supported by competent, substantial evidence. (T. 89-91, 94-95, 128-131, 142-143, 152; Division Exhibits 1-3) Consequently, Goloff's exception 5 is denied.

   
   

4. Goloff's exception 6 excepts to the Hearing Officer's finding of fact in paragraph 13. The Hearing Officer found that Goloff's records do not contain an initial history for Ruth Waddle. The record reflects that Goloff did not perform an initial history, however, Goloff excepts to the finding of fact on the basis that he relied upon an initial history of another health care provider treating Ruth Waddle prior to Goloff. (T. 97; Division Exhibit 8). Goloff's exception 6 is accepted and this finding of fact will be modified accordingly.

5. Goloff's exceptions 7, 8, 9, and 10 except to the Hearing Officer's findings of fact in paragraphs 14, 15, 16 and 17 respectively. No basis for the exceptions is set forth. The Hearing Officer's findings of fact are supported by competent substantial evidence. Consequently, Goloff's exceptions 7, 8, 9, and 10 are denied.

   
   

6. Goloff's exceptions 11 through 18 address the Hearing Officer's Conclusions of Law and appear to consist of a mixture of pure legal conclusions and reiterations of factual findings previously made. As noted in the preface, the Department is free to exercise its judgment at the agency level and reject those portions of the Recommended Order consisting of pure conclusions of law. See, e.g., Siess v. Department of Health and Rehabilitative Services, 468 So.2d

478 (Fla. 2d DCA 1985)

A review of the governing law and the record in this case reflects that 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. Consequently, the Hearing Officer's Conclusions of Law are hereby adopted and Goloff's Exceptions 11 through 18 are denied.

FINDINGS OF FACT

1. The Findings of Fact as set forth in the Recommended Order are adopted and incorporated herein by reference, except for paragraph 13, which is modified to provide:

   
   

   The Respondent's records do not contain

   an initial history for Ruth Waddle that was prepared by the Respondent.

   
   

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(4)(h), Florida Statutes (1993), and Rules 38F-7.505 - 7.513, Florida Administrative Code.

   
   

2. The Conclusions of Law set forth in the Recommended Order are adopted and incorporated herein by reference.

CONCLUSION

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 Goloff, the Department hereby adopts and incorporates by reference the Findings of Fact and Conclusions of Law, as modified herein, set forth in the Recommended Order.

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

1. Goloff failed to substantiate the medical necessity of the treatment provided to Ruth Waddle after June 14, 1988.

2. Goloff return the sum of $7.354.68 to the American States Insurance Company for the fees that he collected in treating Ruth Waddle after June 14, 1988.

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 28th day of June, 1994, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY

ANN CLAYTON, DIRECTOR

Division of Workers Compensation as designee for SECRETARY SHIRLEY O. GOODING

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 29th day of June, 1994, and that a true copy has been furnished on this date by hand delivery or U.S. Mail to:

William J. McCabe, Esquire Shepherd, McCabe & Cooley

1450 West S.R. 434, Suite 200

Longwood, Florida 32750

Daniel M. Kilbride, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Michael G. Moore, Esquire Department of Labor and Employment Security

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

Tallahassee, Florida 32399-2189

Edward A. Dion, General Counsel Department of Labor and Employment Security

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

Tallahassee, Florida 32399-2189

NELDA ATKINSON, AGENCY CLERK

Department of Labor and Employment Security

Docket for Case No: 93-004546

Orders for Case No: 93-004546