Findings Of Fact 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. 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. Petitioner subsequently rendered a bill in the amount of $300 for services rendered on October 4, 1984, as follow-up treatment for Trueba. Following review of that bill by Dr. Wemple, Liberty Mutual only authorized payment of $54. 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. 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." 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. 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. 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.
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
The Issue The matter concerns the amount of the money to be reimbursed to the Agency for Health Care Administration for medical expenses paid on behalf of Mark Crain, a Medicaid recipient, following a settlement recovered from a third party.
Findings Of Fact This proceeding determines the amount the Agency should be paid to satisfy a Medicaid lien following Petitioner’s recovery of a $100,000 settlement from a third party. The Agency asserts that it is entitled to recover $35,700, which is the amount it calculated using the formula set forth in section 409.410(11)(f). The facts that gave rise to this matter are found pursuant to a stipulation of the parties.3/ On June 23, 2016, Petitioner was working for a tree pruning company. Petitioner’s employer assigned him to remove several branches from a tree. As directed, Petitioner climbed to the top of the tree and secured himself with one rope lanyard. Unfortunately, after he began pruning, Petitioner cut through the rope lanyard, lost his balance, and plummeted 30 feet to the ground. As a result of the fall, Petitioner suffered significant physical and neurological injuries. Petitioner underwent multiple surgeries. His medical procedures included an open reduction with internal fixation on his right wrist, lumbar fusion surgery, and a lumbar laminectomy. At the final hearing, Petitioner’s counsel represented that Petitioner’s medical prognosis is not fully known at this time. However, what is known is that Petitioner will continue to experience serious neurologic deficits. Petitioner’s injuries have left him with overall mobility issues and have affected his ability to walk normally. He suffers from a right foot drop and has limited feeling below his waist. The parties also stipulated that Petitioner has completed all medical treatment and therapy related to his accident. However, Petitioner is uncertain whether or not he will be able to return to normal activities in the future. Petitioner incurred sizable medical expenses due to his injuries. The charges for Petitioner’s medical procedures totaled approximately $375,000. However, only $62,067.28 has actually been paid for his medical care. Of this amount, the Florida Medicaid program paid $41,992.33. (In addition to the $41,992.22 paid by Medicaid, other health insurance covered $20,075.06.) Petitioner did not present evidence of monetary damages other than his past medical expenses. Petitioner subsequently initiated a civil cause of action for negligence against his (former) employer. Petitioner alleged that he was not properly trained how to safely secure himself to the tree. According to Petitioner’s counsel, Petitioner’s employer should have instructed him to use two lanyards instead of one. After two years of litigation, Petitioner settled his negligence action for $100,000. The settlement did not allocate Petitioner’s award between past medical expenses and other damage categories. The Agency, through the Florida Medicaid program, paid a total of $41,992.33 for Petitioner’s medical treatment resulting from the accident.4/ All of the expenditures that Florida Medicaid spent on Petitioner’s behalf are attributed to past medical expenses. Under section 409.910, the Agency is to be repaid for its Medicaid expenditures out of any recovery from liable third parties. Accordingly, when the Agency was notified of the settlement of Petitioner’s lawsuit, it asserted a Medicaid lien against the amount Petitioner recovered. The Agency claims that, pursuant to the formula set forth in section 409.910(11)(f), it should collect $37,500 to satisfy the medical costs it paid on Petitioner’s behalf. (As discussed in endnote 7, the “default” formula in section 409.910(11)(f) allows the Agency to collect $37,500 to satisfy its Medicaid lien.) The Agency maintains that it should receive the full amount of its lien regardless of whether Petitioner settled for less than what Petitioner believes is the full value of his damages. Petitioner, on the other hand, asserts that the Agency should be reimbursed a lesser portion of the settlement than the amount calculated using the section 409.910(11)(f) formula. Exercising its right to challenge the Medicaid lien pursuant to section 409.910(17)(b), Petitioner specifically argues that, taking into account the full value of Petitioner’s damages, the Agency’s Medicaid lien should be reduced proportionately. Otherwise, the application of the statutory formula would permit the Agency to collect more than that portion of the settlement that fairly represents Petitioner’s compensation for past medical expenses. Petitioner requests the Agency’s allocation from Petitioner’s third-party recovery be reduced to $4,199.23. To establish the value of his damages, Petitioner submitted the medical bills from his accident, as well as relied upon the stipulated facts. Petitioner’s medical bills show that he sustained the injuries identified above, as well as underwent surgery on his spine and wrist. To place a monetary value on Petitioner’s injuries, Petitioner’s counsel represented that his law firm appraised Petitioner’s injuries at no less than $1 to 2 million. However, Petitioner did not introduce any evidence or testimony corroborating this injury valuation or substantiating an amount Petitioner might have recovered at trial in his personal injury cause of action.5/ Neither did Petitioner offer evidence of additional damages Petitioner might be facing from his accident, such as future medical expenses, loss of quality of life, loss of employment or wages, or pain and suffering. Based on his estimate, Petitioner’s counsel asserted that the $100,000 settlement is far less than the actual value of Petitioner’s injuries and does not adequately compensate Petitioner for his damages. Therefore, a lesser portion of the settlement should be allocated to reimburse Medicaid, instead of the full amount of the lien. Petitioner proposes that a ratio should be applied based on the full value of Petitioner’s damages (conservatively estimated at $1,000,000) compared to the amount that Petitioner actually recovered ($100,000). Using these numbers, Petitioner’s settlement represents a 10 percent recovery of Petitioner’s damages. In like manner, the Medicaid lien should be reduced to 10 percent or $4,199.23 ($41,992.33 times .10). Therefore, Petitioner asserts that $4,199.23 is the portion of his third- party settlement that represents the equitable and fair amount the Florida Medicaid program should recoup for its payments for Petitioner’s medical care. The Agency was not a party to Petitioner’s negligence action or Petitioner’s $100,000 settlement. No portion of the $100,000 settlement represents reimbursement for future medical expenses. The undersigned finds that, based on the evidence in the record, Petitioner failed to prove, by a preponderance of the evidence, that a lesser portion of Petitioner’s settlement should be allocated as reimbursement for medical expenses than the amount the Agency calculated pursuant to the formula set forth in section 409.910(11)(f). Accordingly, the Agency is entitled to recover $37,500 from Petitioner’s recovery of $100,000 from a third party to satisfy its Medicaid lien.
