The Issue The issue is whether the claimant overutilized the services of Dr. Pamela J. Windham, a provider, in connection with services rendered on July 23 and August 10, 1999, in violation of Section 440.13(6) and (7), Florida Statutes.
Findings Of Fact Warren Stovall (Claimant) was born on January 9, 1948. On October 3, 1989, Claimant suffered head injuries-- mainly, in all likelihood, a concussion--in a work-related motor vehicle accident in the course of his employment with Petitioner Wyatt Brothers Construction (Wyatt Brothers). Petitioner CNA Insurance Company (CNA), which was the workers’ compensation carrier for Wyatt Brothers at the time of the accident, accepted the injury as compensable. A few days after the accident, Claimant complained of headaches and problems with his vision, memory, and processing of information. Within one month after the accident, physicians confirmed the presence of a right posterior parietal cyst measuring 5 x 6 x 8 cm to 5 x 7 x 5 cm. Although chronic and likely congenital, the cyst may have been adversely affected by the motor vehicle accident. On October 30, 1989, a surgeon performed a craniotomy, a cystoventriculostomy, and cyst wall biopsies for treatment of a right parietal occipital ependymal cyst. Post- surgical recovery was complicated by subarachnoid and intraventricular air causing severe headaches. CNA has reimbursed various providers for the treatment of the cyst, as well as for the diagnosis and treatment of post-surgical cognitive deficits. CNA has paid for all medically necessary treatment, without regard to whether it was necessitated by injuries associated with the motor-vehicle accident or the brain surgery. One of the providers is Intervenor Pamela J. Windham, Ph.D. (Dr. Windham), a licensed clinical psychologist who works in Louisiana, where Claimant now lives. Dr. Windham began counseling Claimant on February 2, 1990, and has counseled him on more than 200 occasions in the ensuing 10 years. In August 1999, CNA commenced a utilization review of the treatment provided Claimant by Dr. Windham. Certain peer review reports determined that several years of Dr. Windham's counseling had not been medically necessary or reasonable. In reliance upon these reports, CNA determined that Claimant had overutilized the services of Dr. Windham on July 23 and August 10, 1999. The charge for each of these two-and-one- half-hour counseling sessions was $462.50. On February 29, 2000, Dr. Windham filed with the Division of Workers’ Compensation (Division) a Petition to Division of Workers’ Compensation to Resolve the Dispute Regarding a Disallowance and Adjustment of Payments by CNA Insurance Companies to Pamela J. Windham, Ph.D. Identifying the two service dates (and a third, since paid in full) as the reimbursements in dispute, the petition requests the Division to issue an order requiring CNA to reimburse Dr. Windham for the total charges of $925 and to pay Dr. Windham’s reasonable attorneys’ fees. By letter to CNA dated April 27, 2000, the Division acknowledged receipt of Dr. Windham’s petition for reimbursement. The letter states that the Division examined the dispute pursuant to Rules 38F-7.020 and 38F-7.602, Florida Administrative Code, and the 1997 Florida Workers’ Compensation Health Care Provider Fee for Service Reimbursement Manual (Manual). Noting that CNA had claimed that it was conducting a utilization review, the letter states: “While the Division supports the importance of utilization review by the carrier, there is no provision for holding bills during a utilization review investigation. Rule [38F-7.602(3)(b)1] requires carriers to pay or deny medical bills within 45 days.” The letter recommends that CNA pay the remaining $1288.25 due within 30 days of the date of the letter, denies Dr. Windham’s request for attorneys’ fees, and informs any substantially affected person of its right to an administrative hearing. On May 18, 2000, CNA and Wyatt Brothers (Petitioners) served the Employer/Carrier’s Petition to the Division of Workers’ Compensation Regarding a Reimbursement Dispute and Disallowance of Payment by CNA Insurance Company to Pamela J. Windham, Ph.D. In their petition, Petitioners requested an order from the Division rejecting Dr. Windham’s claim for reimbursement and awarding attorneys’ fees and costs to Petitioners. Dr. Windham has pre- and post-doctoral training in neuropsychology. She completed a one-year fellowship at the Tulane Medical Center/Children’s Hospital in neuropsychology in September 1989. She worked as the sole employee of the neuropsychology department at the Touro Rehabilitation Center in New Orleans from November 1989 until mid-1997, at which time she entered private practice in nearby Metairie, Louisiana. Just a couple of months after Dr. Windham began working at the Touro Rehabilitation Center, the center’s neurologist, Dr. Diane Mayer, referred Claimant for a neuropsychological evaluation to document Claimant’s current level of neuropsychological functioning and make appropriate recommendations for further treatment. The neuropsychological evaluation took place over three days from February 2-7, 1990. Claimant’s wife reported to Dr. Windham that, following the brain surgery, Claimant continued to experience memory problems, restlessness, fatigue, and slowed accomplishment of formerly simple tasks, such as replacing door hinges. Claimant reported that his primary areas of residual deficits were in memory and slowed cognitive processing, as well as occasional difficulties in word-finding. Both Claimant and his wife reported that Claimant had experienced increased levels of irritability and frustration over his inability to complete tasks that, prior to the injury, he had been able to comply without difficulty. After administering appropriate tests, Dr. Windham determined that Claimant was within the average range of intellectual functioning, but suffered deficits in memory and higher-level abstract reasoning. She found that he was experiencing anxiety, depression, and self-doubt. Dr. Windham’s evaluation contains five recommendations. First, Claimant should participate in a rehabilitation program to address his memory and reasoning deficits; Dr. Windham expected him to “demonstrate progress throughout the coming months” because he was then only four months post-injury. Second, Claimant should undergo supportive therapy to alleviate his anxiety and frustration. Third, Claimant should use associative cues to strengthen his memory functions. Fourth, Claimant should generate possible solutions to imagined and actual problems in daily life to remediate his deficits in reasoning and problem-solving. Fifth, Claimant should undergo a complete neuropsychological reevaluation in eight months to determine his progress. In a letter dated June 22, 1990, evidently from Dr. Windham to a registered nurse/rehabilitation specialist, Dr. Windham states: It quickly became evident that these adjustment issues [originally identified in the above-described neuropsychological evaluation] encompassed Mr. Stovall’s primary support system, namely his wife, Vickie. The emotional/behavioral factors which have surfaced subsequent to the head injury have significantly impacted the couple’s relationship. In particular, those intrusive factors include: Mr. Stovall’s emotional dependence, reduced drive/motivation, reduced empathy, reduced insight, lowered tolerance for frustration, and problematic communication, in general. On October 29-31, 1990, Dr. Windham performed another neuropsychological evaluation of Claimant. Summarizing Claimant’s current level of functioning, Dr. Windham found: Currently, Mr. Stovall continues to report cognitive difficulties primarily related to planning, organizing, and carrying out novel tasks. Occasional difficulties in word finding are still present also. Mr. Stovall’s wife continues to report some periodic difficulty in her husband’s social judgment. Both Mr. Stovall and his wife continue to report his increased irritability, in general, and an inability of Mr. Stovall to self-monitor . . .. There are current staff reports also of impulsivity, inability to self-correct, inability to perform basic mathematical calculations, and anxiety/depression. Decreased endurance level with concomitant decreased cognitive efficiency also continues to be problematic for Mr. Stovall. The reevaluation continues to find that Claimant was of average intelligence, and he continued to experience some problems with abstract reasoning. However, he had improved “on many measures” of memory. Dr. Windham’s reevaluation contains four recommendations. First, Claimant should continue to undergo rehabilitative therapy for deficits in reasoning and impulse- control. Second, Claimant should continue to receive supportive counseling for his anxiety and depression. Third, Claimant should undergo vocational rehabilitation to determine his ability to return to his prior construction work; noting that Claimant had probably already attained his pre-injury level of functioning and would continue to suffer significant deficits in reasoning and problem-solving, Dr. Windham warned that she expected that this effort would be “extremely difficult and ultimately disappointing.” Fourth, Claimant should undergo another neuropsychological evaluation in one year. On January 16, 1992, Dr. Richard Cicinelli, a psychiatrist, saw Claimant for a psychiatric evaluation. Dr. Cicinelli’s impression was as follows: Organic affective and organic personality disorder, due to a slowly resolving organic brain syndrome due to CNS injury, especially as stated to the posterior parietal area, the location of the removal of the cyst. The patient’s depression seems to be resolving well and responding to psychotherapy to the point that there is no need for a trial of antidepressants now. There does seem to be a residual brain syndrome, however, as in other similar cases of brain injury, in which there has been a slow, gradual improvement, but only to a certain extent, with the probability that there will be only a certain percentage of complete return to premorbid CNS functioning, such as 80 or 90 per cent. Elaborating on his findings, Dr. Cicinelli stated in a letter dated March 17, 1993: I felt that the patient’s depressive reaction to his injuries and some of the cognitive losses could improve with time, or with new training and continued psychotherapy. However, there is a certain degree of impairment, which will be certainly PERMANENT and IRREVERSIBLE. Medications, cognitive restructuring, and supportive individual psychotherapy can be palliative, but never fully cure such conditions. There is a need for continued supportive individual psychotherapy and continued evaluations by psychiatry, until the patient dies. On March 23, 1995, Dr. Mark K. Rosenbloom, a physician certified in physical medicine and rehabilitation, examined Claimant as part of a follow-up visit. Dr. Rosenbloom found that Claimant’s short-term memory and memory after ten minutes were good, but his concentration and speed of processing were mildly slowed and his insight and judgment were only fair. Dr. Rosenbloom concluded that Claimant would continue to benefit from Dr. Windham’s neuropsychological intervention and that his need for this treatment would be “indefinite.” Failing to follow the fourth recommendation of her October 1990 reevaluation, Dr. Windham never performed another comprehensive reevaluation of Claimant after the October 1990 reevaluation. On April 6, 1995, Dr. Windham noted that she “[a]chieved what appears to be maximum closure/resolution possible [with Mr. and Mrs. Stovall] in this session.” Dr. Windham admitted that, since 1993, she did not have “any objective evidence in the form of testing that would support the need for ongoing psychological counseling,” as she provided it. [Intervenor Exhibit A, p. 65.] For several years, Dr. Windham’s counseling has been more palliative or supportive than curative or remedial. As she explains, her treatment plan, for many years, has been to provide supportive counseling, on an as-needed, indefinite basis, as befits Claimant’s deficits, which will never disappear. [Intervenor Exhibit A, pp. 57-58.] Dr. Windham describes her work as “consistently . . . to address Mr. Stovall’s ability, with the support and involvement of his wife, to address his ability to deal with and address and cope with the consequences of the neurological insult of trauma that he sustained.” [Intervenor Exhibit A, p. 22.] Dr. Windham explains that Claimant’s condition requires repeated interventions: Because Mr. Stovall has significant memory difficulties, he has significant short-term and long-term [memory problems]. He has judgment, higher level, executive cognitive function deficits which relate to judgment, decision making. His ability to integrate information is not what it was previously nor will it be again. Therefore, when [Mr. and Mrs. Stovall] come in, it takes repetition. It takes supportive repetition. It has been challenging but I think we successfully established the kind of therapeutic relationship with Mr. Stovall and with his wife, such that he trusts me, he trusts my judgment. I can--I can address issues that are uncomfortable to him, issues of safety, issues of financial management, issues wherein he and his wife disagree vehemently with regard to, say, family issues too. I’ve managed to establish and maintain that sort of trusting relationship with Mr. Stovall and with his wife. And I think that’s been the reason for the success that we have had with regard to dealing with these issues as they’ve arisen. [Intervenor Exhibit A, pp. 23-24.] Dr. Windham links Claimant’s need for ongoing supportive therapy to counseling concerning such matters as marital problems, the purchase of a new car, problems with a daughter’s decision to enlist in the military, and Claimant’s concerns about his sister and nephew. [Intervenor Exhibit A, p. 46.] Dr. Windham explains that Claimant’s perceptions, his cognitive functioning is impaired. . . . He is easily overwhelmed cognitively. And it affects not only the situation that’s being addressed but it significantly affects his relationship with his wife and his family. An important part of neuropsychological intervention or treatment . . . has been adjustment in daily functioning to issues as they arise. . . . Mr. Stovall has and will continue to have difficulties with regard to . . . those cognitive deficits. He will continue to have difficulty with memory, long-term and short-term, especially short-term. When he takes in information that’s new, he cannot process it, encode it, and store it in order that he can retrieve it as you and I do or as he did previously. He cannot attend to that information, therefore, in order to evaluate and judge it and make a sound decision about it. So all the issues that [Mr. and Mrs. Stovall] bring up and, you know, sometimes I think in my notes I’m sitting there and I’m trying to jot a line maybe when we get started on something, talking about something, and then being pushed for time, I probably don’t go back and do the kind of comprehensive notes that I need to do or to tie it together. But, I can assure you that the treatment that I have provided has been to the best of my ability, it has been needed, and I think it’s been beneficial. Intervenor Exhibit A, pp. 60-64. Dr. Windham has treated Claimant and/or his wife over 200 times from 1990 to 2000: 51 times in 1990, 23 times in 1991, 3 times in 1992, 27 times in 1993, 1 time in 1994, 18 times in 1995, 25 times in 1996, 15 times in 1997, 26 times, in 1998, 13 times in 1999, and 6 times in 2000. Over the years, much of Dr. Windham’s work with Claimant and his wife involved marital and family issues, including financial issues. Frequent issues involved the impact of Claimant’s consumer transactions upon the couple’s domestic life. Sometimes the issues seemed trivial, such as Claimant’s insistence upon driving the whole way on a trip with his wife. Other times, the issues were more substantial, involving tasks that Claimant could no longer do or could no longer do efficiently. Dr. Windham’s notes for the July 23, 1999, session reveal that Claimant was persisting in his intention to purchase an automobile over the Internet, despite adverse experiences of long-distance business transactions reportedly of a similar nature. The notes state that Dr. Windham linked these undescribed past experiences to Claimant’s decreased level of cognitive functioning with its attendant impact upon his ability to manage finances. Dr. Windham’s notes for the August 10, 1999, session reveal that Claimant was alert and oriented to time, person, place, and situation. The notes state that he expressed confusion regarding his long-term memory and its impact on his ability to plan for the future. The notes state that Dr. Windham discussed “previous issues of conflict” and relate the higher-level cognitive deficits to the brain trauma suffered by Claimant. As part of its utilization review, CNA obtained the opinions of three experts, based on a review of records, but not an examination of Claimant. By report dated September 3, 1999, David M. Bortnick, a clinical psychologist and neuropsychologist, stated that he found that, after 1994, the focus of Dr. Windham’s treatment was less on the industrial injuries suffered in 1989 and more on domestic issues. Dr. Bortnick concluded that Dr. Windham’s treatment was excessive in duration and frequency, as her evaluation and treatment should have been completed by December 1994. Dr. Bortnick added that years of psychological treatment often produces strong feelings of dependency in the patient and therapist and reinforces an unhealthy disability identity. By report dated September 27, 1999, Leslie L. Mate, a psychiatrist, Alan J. Raphael, a psychologist, Charles J. Golden, a clinical psychologist and neuropsychologist, and Kenneth C. Fischer, a neurologist, opined that Dr. Windham’s treatment was medically unnecessary after February 17, 1992, by which time Claimant was functioning within normal limits. By report dated September 11, 2000, Jeffery A. Danziger, a psychiatrist, opined that, in response to Claimant’s cognitive and personality issues emerging as a result of the neurosurgery, a neuropsychological evaluation and “short course of cognitive retraining and [family] assistance” were reasonable. Dr. Danziger found that Dr. Windham’s therapy sessions “apparently focused more on marital therapy, family conflict and financial issues and had little to do with the original problems relating to the cognitive and intellectual deficits and personality changes.” Dr. Danziger warned that Claimant may have developed a “dependence on the therapist and an unhealthy fostering of a sick and dependent role.” Respondent subsequently obtained medical reports from three persons: Lee H. Bukstel, a clinical neuropsychologist, Conrad P. Weller, a psychiatrist, and David A. Gross, a psychiatrist. By an undated report, Dr. Bukstel noted that Dr. Windham had not completely reacted to the data showing, between her two major evaluations of Claimant, that his memory and attention/concentration had improved at least to the normal range. Dr. Bukstel also noted that often he could not judge the level and quality of care due to the lack of specificity in Dr. Windham’s notes. He questions whether Dr. Windham was sufficiently oriented toward a back-to-work set of issues, given the Workers’ Compensation setting. Although Dr. Bukstel did not seriously question the frequency of treatment, he questioned its duration, noting that its earlier focus on work-related issues shifted to marital- therapy issues with the emergence of Mrs. Stovall’s marital issues possibly driving the duration of the treatment. Dr. Bukstel concluded that none of Dr. Windham’s treatment was medically necessary after 1992. By report dated February 19, 2001, Dr. Weller, agreeing with Dr. Cicinelli’s conclusion that Claimant may require “indefinite psychiatric or psychological follow-up as a result of his head injury,” opined that a provider could reasonably provide Claimant with “low-intensity psychiatric or psychological follow-up,” consisting of “periodic reassessment and occasional treatment intervention or psychotropic medication management on a quarterly to annual basis.” Dr. Weller concluded that, after 1991, it would have been reasonable for Dr. Windham to see Claimant up to quarterly, absent documented neuropsychiatric complications, such as depression. Finding that Dr. Windham’s notes fail to address diagnostic issues and fail to document symptoms, such as anxiety, compulsions, or depression that may have required intensive treatment, Dr. Weller could not justify more than monthly sessions during 1990 and 1991, especially in light of the multimodal treatment that Claimant was then receiving at the Touro Rehabilitation Center from other providers. By report dated January 26, 2001, Dr. Gross opined that all of Dr. Windham’s services were medically necessary and reasonable in frequency and duration. He found that she appropriately focused on “coping strategies, cognitive techniques,” and “The Good, The Bad, and The Ugly” of daily living. Dr. Gross opined that it was reasonable to conclude that the cognitive deficits from which Claimant suffered would interfere with all aspects of his daily life. The greater weight of the evidence establishes the medical necessity of low-intensity neuropsychological treatment, given the permanency of Claimant’s cognitive deficits. Of course, the frequency of this treatment is driven by the intensity of the symptoms, but, in recent years, quarterly or semi-annual counseling sessions with Dr. Windham would have been sufficient to treat Claimant's documented problems. Medically necessary sessions at appropriate intervals will feature the identification of specific, relevant symptoms; workable compensating strategies; and--if warranted--more intensive therapeutic alternatives, such as an evaluation for psychotropic medications. Obviously, the participants will, from time to time, discuss the consequences of specific symptoms, and these discussions will involve various aspects of domestic life, but sessions at appropriate intervals would no longer highlight consumer credit counseling, Claimant’s insistence on doing all of the driving on family trips, or family issues at most tangentially involved with Claimant’s cognitive deficits. As for the July 23 and August 10, 1999, service dates, the record fails to establish their medical necessity. As for the July session, many persons purchase cars on the Internet--presumably, some of them unwisely. If Claimant’s cognitive deficit were surfacing in his investigation of the possibility of buying a car by this means, Dr. Windham’s notes, which do not specify how this proposed behavior is linked to other “similar” behaviors, do a remarkably poor job of linking these elements or even establishing the imprudence of this particular behavior. As for the August session, Dr. Windham’s notes again do a poor job of detailing the nature of Claimant’s problem in planning for the future. Perhaps Claimant's problem was an inability to conceptualize the multiple contingencies necessary for effective planning. Perhaps Claimant's problem was, again, financial in nature, possibly encompassing apprehension concerning future financial security. Dr. Windham’s notes leave the reader only with speculation and conjecture as to any link that may exist between the treatment provided during this session and Claimant’s cognitive deficits. In general, any connection between the July 23 and August 10, 1999, counseling sessions and the brain surgery that followed the motor vehicle accident is undermined not only by Dr. Windham's poor note-keeping, but by her failure to document the extent to which Claimant recovered memory functions in the year following her initial evaluation of him and the effect of this improvement on his overall level of functioning. These omissions are exacerbated by Dr. Windham's failure to follow her own recommendation and conduct another neuropsychological reevaluation of Claimant after the October 1990 reevaluation. These deficiencies are crucial in assessing the August 10 session, in which reported memory problems are explicit, and the July 23 session, in which memory problems are evident and likely joined with cognitive problems. These deficiencies are also crucial in assessing Dr. Windham's justification of the frequency of sessions, as necessitated partly by Claimant's reported memory problems (Intervenor Exhibit A, pp.23-24), and the duration of sessions, also as necessitated partly by Claimant's reported memory problems (Intervenor Exhibit A, pp. 60-64). Except as altered above, the remaining findings of fact from the Partial Recommended Order, as adopted by the Partial Final Order, are incorporated by reference in this Recommended Order.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order determining that the services rendered Claimant by Dr. Windham on July 23 and August 10, 1999, constitute overutilization, for which Petitioners are not liable in reimbursement, and denying all requests for attorneys' fees and costs. DONE AND ENTERED this 10th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2001. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Elizabeth Teegen, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Mark S. Spangler Law Offices of Mark S. Spangler, P.A. 1061 North Maitland Center Commons Orlando, Florida 32751 Timothy G. Schoenwalder Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32301 Nancy Staff Terrel Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Michael B. Murphy The Stanley Wines Law Firm, P.A. Post Office Box 860 Winter Haven, Florida 33882-0860
The Issue Whether this matter should be dismissed for lack of disputed issues of fact and law, and because Petitioner has affirmatively stated she no longer wishes to pursue this claim.
Findings Of Fact Respondent is a non-profit corporation geriatric care facility. Petitioner was employed by Respondent as a Certified Nursing Assistant at the time of her termination on August 21, 1998. On or about February 2, 1999, Petitioner filed a Charge of Discrimination (Charge) with FCHR. Petitioner alleged that she was discriminated against on the basis of her marital status in violation of the Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (FCRA). FCHR assigned Petitioner’s Charge case number 99-1079. The FCHR investigated Petitioner’s allegations of marital status discrimination and, on March 4, 2002, issued a “No Cause Determination.” The FCHR found that “there is no reasonable cause to believe that Respondent discriminated against [Stephenson] on the basis of marital status (married).” In its investigation, FCHR concluded that: Complainant [Stephenson] became very belligerent toward her supervisor after Complainant’s husband tried to deliver a package to her while she was on duty. Complainant’s husband was told that visitor’s [sic] are not permitted when employees are on duty. Complainant was suspended on July 13, 1998 for one day for insubordination and for being disrespectful toward her direct supervisor. . . . Records show that Complainant acknowledged receipt of Respondent’s policy regarding visitors. . . . Respondent provided sworn affidavits from Complainant’s supervisors and from the facility’s Assistant Administrator, that states on August 13, 1998, Complainant refused to take a 100 year old resident to the restroom after the resident requested her assistance several times. The resident needed to be taken to the restroom frequently due to her age and the medication she was taking. Complainant told the resident that she had already taken her ten times in the past five minutes, and she is not taking her again. As a result, Complainant was terminated. Complainant did not take advantage of Respondent’s grievance procedure nor harassment policy to try to resolve any issues or problems that she may have experienced. In regards to Complainant’s allegations that she was denied severance pay, according to Respondent’s policy, employee’s [sic] who are involuntary discharged are not eligible to receive severance pay. Records show that Complainant acknowledged receipt of this policy. Complainant was contacted telephonically to determine whether additional information would be offered to support her allegations. Complainant offered no additional information to rebut Respondent’s position. On or about April 3, 2002, Petitioner filed her Petition with FCHR. FCHR transmitted the Petition to the Division on April 10, 2002. In or about January 1999, while her Charge was pending at the FCHR, Petitioner also filed a worker’s compensation claim pursuant to Chapter 440, Florida Statues, alleging that she suffered a workplace injury on August 21, 1998, the same day she was terminated from employment. While Petitioner’s Charge was pending at FCHR, Petitioner mediated her worker’s compensation claim. Petitioner’s worker’s compensation claim was settled and Petitioner received $10,000.00, as a lump-sum settlement. Petitioner was represented by counsel at the time she settled the claim. A Stipulation was entered into between the parties. Paragraph 11 of the Stipulation states: ALL KNOWN ACCIDENTS, INJURIES AND OCCUPATIONAL DISEASES REVEALED AND ALL PENDING CLAIMS WITHDRAWN - The Claimant once again, represents and affirms that all accidents, injuries and occupational diseases known to have occurred or sustained while employed or allegedly employed by the employer have been revealed. All pending or potential claims, and notices of denial pertaining thereto, are hereby voluntarily withdrawn, and are hereby considered dismissed with prejudice, whether previously filed or not. In consideration for the settlement herein the Employee hereby also extinguishes all causes of action or potential of causes of action, against the Employer and Carrier including but not limited to any statutory, common law, State, Federal, and administrative claims, ADA claims, and claims for any other alleged on-the-job accidents with the Employer herein. In Paragraph 12 of the Stipulation, Petitioner also agreed that she would be prospectively estopped from challenging the validity of the Stipulation and documents attached thereto. In Paragraph 2 of the Affidavit attached to the Stipulation, Petitioner acknowledged under oath that she understood that the $10,000.00 lump settlement represented “full and final settlement of all past, present and future benefits of every kind and class whatsoever, including medical treatment under Florida Statue 440 regarding any and all industrial accidents.” In addition to the settlement of benefits under Chapter 440, Florida Statues, Petitioner also acknowledged that she understood that “all other causes of action and claims against the employer and/or carrier are extinguished and forever barred.” The worker’s compensation Judge of Compensation Claims approved the Stipulation on or about January 7, 2000.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief from an Unlawful Employment Practice filed by Petitioner in this proceeding. DONE AND ENTERED this 10th day of June, 2002, in Tallahassee, Leon County, Florida. ____________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2002. COPIES FURNISHED: Theresa A. Stephenson 7459 Pinedale Drive Boynton Beach, Florida 33462 Robert J. Sniffen, Esquire Moyle, Flanigan, Katz, Kolins, Raymond & Sheehan, P.A. The Perkins House 118 North Gadsden Street Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent properly dismissed Petitioner's Petition for Resolution of Workers' Compensation Reimbursement Dispute, pursuant to section 440.13(7), Florida Statutes.
Findings Of Fact At all material times, C. G. was employed by Solo Printing, Inc., which had workers' compensation coverage through Intervenor. On March 2, 2012, C. G. was injured at work as a result of falling onto his knee during a fight with a coworker. C. G. was transported from the worksite by ambulance to Petitioner's hospital, where he was admitted. Later the same day, C. G. underwent emergency surgery to his knee. He was discharged from the hospital on March 8, 2012. On April 2, 2012, Petitioner billed Intervenor for services rendered to C. G. during his hospitalization. On May 11, 2012, Intervenor issued a Notice of Denial. On June 8, 2012, Petitioner filed with Respondent the Petition. On June 14, 2012, Respondent issued the Dismissal. Intervenor's Notice of Denial cites three grounds for denying payment for the bill: section 440.09(3), which prohibits compensation for injuries to an employee "occasioned primarily" by his willfully trying to injure another person; lack of authorization for services; and any other defense that may become available. The Dismissal cites one ground for dismissing the Petition: Petitioner's failure to submit an EOBR with its Petition. The only ground cited in the preceding paragraph that is relevant is the first cited by Intervenor. This ground raises the issue of compensability by disclosing that Intervenor has not conceded that C. G.'s injuries are compensable. Nor has a Judge of Compensation Claims (JCC) ever entered an order determining that C. G.'s injuries are compensable. In fact, G. has never filed a claim for benefits. At the time in question, C. G. had health insurance, but his insurer reportedly denied coverage on the ground that it insured's injuries were covered by workers' compensation. It does not appear that Petitioner has commenced a legal action against C. G. for payment for the services that it rendered to him in March 2012.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a Final Order dismissing the Petition. DONE AND ENTERED this 25th day of February, 2013, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2013. COPIES FURNISHED: Lorne S. Cabinsky, Esquire Law Offices of Lorne S. Cabinsky, P.A. Suite 1500 101 Northeast 3rd Avenue Fort Lauderdale, Florida 33301 Mari H. McCully, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 James T. Armstrong, Esquire Walton Lantaff Schroeder and Carson, LLP Suite 1575 200 South Orange Avenue Orlando, Florida 32801 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Division of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether Respondent violated section 456.072(1)(v), Florida Statutes (2012-2013), as alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed for his conduct.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. The Board of Medicine is the professional licensing board charged with final agency action with respect to physicians licensed pursuant to chapter 458. At all times relevant to the instant proceedings, Respondent has been a licensed physician in the State of Florida, and holds license number ME 17784. At all times relevant to the instant proceeding, Respondent was employed by AmeriMed Diagnostic Services, Inc. (AmeriMed), 500 West Martin Luther King Jr. Boulevard, Tampa, Florida. Patient A.P. A.P., a male patient, presented to Respondent at AmeriMed on September 11, 2013, and April 8, 2014, for medical evaluation related to an ongoing workers’ compensation claim. During both appointments, A.P. complained of severe lower back pain and pain radiating down his left leg. A.P. did not complain of a hernia or pain in his genitals. Respondent performed a physical examination on A.P on September 11, 2013. During the examination, Respondent instructed A.P. to undress down to his underwear and lie on his back on an examining table. Respondent removed A.P.’s underwear while A.P. was lying on the examining table. Respondent moved A.P.’s legs back and forth and then touched the area in between A.P.’s legs underneath his testicles. While doing this, Respondent “lifted” A.P.’s penis and moved it back and forth. After several minutes of Respondent touching A.P. in this manner, A.P. ejaculated. A.P. tried to remove himself from the examining table, but Respondent pressed on A.P.’s stomach and told him to “just relax.” Respondent then cleaned the semen off of A.P. and told him to get dressed. After the appointment, A.P. felt embarrassed and ashamed and believed that what happened during the examination was his fault because he had not “been with a woman in quite some time.” On April 8, 2014, A.P. presented to Respondent for a second examination. During the examination, Respondent instructed A.P. to undress down to his underwear and lie on his back on the examining table. While A.P. was on the examining table, Respondent removed A.P.’s underwear and used his fingers to manipulate A.P.’s penis “back and forth,” which eventually caused A.P. to ejaculate. A.P. tried to remove himself from the examining table but Respondent, like before, told him to “relax,” and reminded A.P. that he needed the examination for his workers’ compensation case. After A.P. ejaculated, Respondent “cleaned up” and instructed A.P. to get off the table. Respondent then told A.P. to walk back and forth across the examination room, and A.P. complied with Respondent’s directive. A.P. was naked when he walked back and forth across the room. After the second appointment, A.P. believed that what happened to him while being examined by Respondent was not his fault, and he believed that Respondent’s examination was sexual in nature. A.P. testified that he was sexually molested as a child and knew the difference between an appropriate medical examination and molestation. As a result of these incidents with Respondent, A.P. has reservations about being examined by another physician in Florida. Respondent’s patient examination notes for the September 11, 2013, and April 8, 2014, appointments with A.P. do not document a genital or hernia examination. After leaving the appointment on April 8, 2014, A.P. was upset about what Respondent had done to him so he called his girlfriend who suggested that he report the matter to the police. A.P. subsequently went to the police department and reported Respondent’s conduct. A.P. testified that he reported the incident to the police on April 8, 2014. Respondent attempted to challenge A.P.’s credibility by presenting A.P. with a copy of the police report which identified April 14, 2014, as the date the police report was made. The police report was not admitted into evidence and there was no testimony from the author of the report; therefore, it is unclear whether the date in the report refers to when A.P. reported the incident or when the police department generated the report. Regardless, A.P. is certain that on April 8, 2014, he reported the incident to the police department and his testimony in this regard is credible. On cross-examination, Respondent attempted to further discredit A.P.’s testimony by noting that A.P. stated that he did not remember seeing any of the other physicians at AmeriMed until after his first visit with Respondent. Patient A.P.’s records document that he did see another physician before being evaluated by Respondent. However, this fact does not contradict or confuse his testimony about what occurred during his two appointments with Respondent. Additionally, in light of the fact that these appointments occurred more than three years ago, it is not unreasonable to believe that A.P. might not remember clearly which physician he initially saw at AmeriMed. Respondent also attempted to impeach A.P. by asking him about his history with pain medications. A.P. originally testified that he was taking hydrocodone at the time he first saw Respondent. After Respondent’s counsel presented A.P. an excerpt from A.P.’s medical records from AmeriMed, A.P. remembered that he was also taking morphine. Respondent suggests that A.P. concealed that he was taking morphine, and should therefore not be believed, but A.P. explained that he believed morphine was a “non-narcotic” and admitted that he is not familiar with medications. A.P. testified that his medications did not impact his ability to observe or perceive the events that happened during his appointments with Respondent. With regard to the incidents that occurred while he was being examined by Respondent, A.P.’s testimony was precise, lacking in confusion, and credible. Patient J.T. J.T., a male patient, presented to Respondent at AmeriMed for medical appointments on February 11, and March 20, 2014. At both appointments J.T. complained of lower back pain, pain radiating down his legs, and numbness and tingling in his feet. J.T. did not complain of a hernia or pain in his genitals. J.T. presented to Respondent at AmeriMed because he was told that Respondent could assist him with his federal workers’ compensation claim. During the appointment on February 11, 2014, Respondent performed a physical examination on J.T. Prior to the examination, Respondent told J.T. to remove all of his clothes, except for his underwear, and lie on his back on the examination table. J.T. complied with Respondent’s directive, and while J.T. was lying on his back, Respondent removed J.T.’s underwear and told J.T. that he needed to “check his hips.” With his hands, Respondent pushed into J.T.’s inner thigh area near his groin. Respondent then told J.T. that he was going to “check for sensation.” Respondent touched a small plastic instrument with a wheel on it to J.T.’s feet and legs. Respondent moved the instrument up to J.T.’s inner thigh and then grabbed J.T.’s penis and “pulled it up.” Respondent rolled the instrument on each side of J.T.’s penis and asked J.T. where he felt it more. Respondent also touched the instrument on the sides of J.T.’s scrotum. Respondent did this for four to five minutes. At one point, while Respondent was using the instrument on J.T.’s genitals, Respondent told J.T. that he was “checking for a hernia.” Next, Respondent instructed J.T. to stand up and walk back and forth across the exam room on his tiptoes and heels. J.T. complied while Respondent observed him. After walking back and forth, Respondent told J.T. to stand in front of him so he could again “check for a hernia.” While Respondent sat on a stool and J.T. stood naked in front of him, Respondent grabbed J.T.’s scrotum and used his hands to manipulate J.T.’s testicles. J.T. described Respondent’s touching of his scrotum as “fondling” rather than a touching that resembled a legitimate hernia examination. J.T. testified that he had been checked for a hernia previously by other physicians and described those examinations as “very different” from Respondent’s examination. According to J.T., in previous exams, he was required by other physicians to stand up as the doctor felt either side of his testicles and instructed him to turn his head and cough. J.T. explained that the “legitimate” hernia examinations lasted seconds, and the doctor did not move his testicles around in the way that Respondent had. Respondent’s patient examination note for the February 11, 2014, appointment with J.T. does not document a genital or hernia examination. J.T. testified that following his appointment with Respondent on February 11, 2014, he felt “weird” because he had never experienced an examination like the one Respondent performed. J.T. presented to Respondent for a second time on March 20, 2014, to obtain additional information requested by the office of workers’ compensation. During the appointment on March 20, 2014, Respondent told J.T. that he needed to do another examination because he needed to make sure he “didn’t miss anything.” On March 20, 2014, Respondent performed a second physical examination on J.T. Respondent instructed J.T. to undress down to his underwear, and to lie on his back on the examining table. While on the examining table, Respondent removed J.T.’s underwear and used the same plastic instrument as before on each of J.T.’s legs, penis and scrotum. Respondent then instructed J.T. to get off the table and walk back and forth across the room. J.T. complied with Respondent’s directive and did so while completely undressed. After walking back and forth, Respondent asked J.T. to stand in front of him as Respondent sat on a stool. Respondent squeezed one side of J.T.’s scrotum and then the other. Respondent took about 45 seconds squeezing each side of J.T.’s scrotum and advised J.T. that he believed he had a “slight hernia.” J.T. described the way Respondent squeezed his scrotum as “fondling.” Respondent did not document that he examined J.T.’s genitals or checked for a hernia in his patient examination note for the appointment on March 20, 2014. J.T. filed a police report against Respondent on August 26, 2014. J.T. also filed a formal complaint with the Department shortly thereafter. The incidents with Respondent have negatively affected J.T. and have caused him to be hypercautious and guarded when seeing other doctors. When questioned about his reason for waiting nearly four months to file a complaint with the Department, J.T. credibly testified that he was confused and embarrassed by the incidents. According to J.T., it was not until he found out that there were other patients with similar experiences that he knew something was inappropriate about the way that Respondent had examined him, and it was then that he decided to file a complaint. Patient J.T.’s explanation was clearly stated and is credible. When asked about communications he had with staff and patients at AmeriMed, J.T. credibly testified that he was never told to file a complaint against Respondent, and that he did not conspire with any other patients to make up false allegations against Respondent. With regard to the incidents that occurred while he was being examined by Respondent, J.T.’s testimony was precise, lacking in confusion, and is credible. Patient E.S. Between January 2013 and June 2013, E.S., a male patient, presented multiple times to Respondent for medical evaluation related to his federal workers’ compensation claim. E.S.’s complaints included pain in both feet, flattened arches of both feet, plantar fasciitis, and severe pain on standing and/or walking. E.S. did not complain of a hernia or pain in his genitals. On January 14, 2013, E.S. arrived at AmeriMed for an initial visit with Respondent. Respondent performed a physical examination of E.S. and during the course of the examination Respondent told E.S. to take off all of his clothes. During the examination, while E.S. sat on the examining table, Respondent grabbed E.S.’s penis and moved it around with his hands. Respondent then instructed E.S. to get off of the table and walk back and forth across the examination room. E.S. did so, while still completely undressed. After walking back and forth, Respondent told E.S. to stand in front of him. E.S. complied with Respondent’s directive, and while doing so Respondent held E.S.’s penis and asked him to turn his head to the left and to the right. E.S. presented to Respondent on February 15, 2013, at which time Respondent performed a physical examination. Respondent told E.S. to take off all of his clothes and to lie on the examining table. During the examination, while E.S. was on the table naked, Respondent touched and pulled on E.S.’s penis. E.S. described the touching as “stroking.” Respondent instructed E.S. to walk back and forth across the room, and E.S. complied. E.S. then stood naked in front of Respondent, and while doing so Respondent held E.S.’s penis and asked him if he felt pain. While holding E.S.’s penis, Respondent told E.S. to turn his head and cough. Respondent did not touch E.S.’s testicles or the area underneath E.S.’s testicles during the examination. E.S. testified that during each of his three subsequent visits with Respondent, he was required to completely undress, and that Respondent touched or in some way manipulated his penis. E.S. testified that the manner in which Respondent touched his penis was not the same on every appointment. For instance, during one of the visits, E.S. testified that Respondent tried to “open” his penis by pulling down on the top of it. E.S. was treated by other physicians for his feet and back pain prior to being evaluated by Respondent. While being examined by the other physicians, E.S. testified that he was not naked, and the physicians did not touch his penis. Additionally, E.S. testified that his current physician, who is also treating him for pain in his feet and back, does not ask him to undress completely and does not touch his penis during examinations. Patient E.S. has had hernia examinations by other physicians in the past, and during those examinations he had to remove his pants for a short period of time to allow the physician to push up on his testicles, while he turned his head to the right and the left and coughed. E.S. testified that Respondent’s exam was different because E.S. was naked and Respondent “held” his penis, which no other doctors have done. Respondent did not document that he examined E.S.’s genitals or checked for a hernia in any of his patient examination notes for appointments between January 2013 and June 2013. E.S. was vulnerable when he presented to Respondent for medical evaluation. E.S. had spent years dealing with his workers’ compensation claim, a process which he described as difficult. He was assured that Respondent could help him with his claim. During the first examination, E.S. “blanked” while Respondent touched him inappropriately because he assumed Respondent had to “check everything” and would “write a really good report.” After the second and third appointments, E.S. became concerned about the way that he was being examined by Respondent. Nevertheless, E.S. returned to Respondent for a fourth and fifth appointment because he needed the examinations in order to comply with the requirements for his workers’ compensation claim. With regard to the incidents that occurred while he was being examined by Respondent, E.S.’s testimony was precise, lacking in confusion, and credible. Patient L.P. L.P., a male patient, presented to Respondent at AmeriMed multiple times for medical appointments between August 2012 and April 2014. L.P.’s complaints included lower back pain, pain in his hips, and pain radiating down the right leg. L.P. did not complain of a hernia or pain in his genitals. During each appointment, L.P. was examined by Respondent and instructed to take off all his clothes, including his underwear. L.P. was also instructed by Respondent to lie on the examining table. While on the table, Respondent rubbed a plastic instrument up and down L.P.’s legs, between his legs, and on his penis. According to L.P., Respondent would also pull the foreskin back on L.P.’s penis, manipulate L.P.’s penis with his hands, and touch L.P.’s testicles. During the examinations, Respondent instructed L.P. to walk naked back and forth across the examination room. Respondent also had L.P. stand in front of him so that Respondent could purportedly “check for a hernia.” In “checking for a hernia,” Respondent held L.P.’s penis in one hand and then felt in between L.P.’s legs with the other hand. L.P. testified that Respondent did all of these things at every appointment and that Respondent spent the majority of the examination touching the instrument on L.P.’s penis. L.P. testified that he has been checked for a hernia before but Respondent’s purported hernia examination was “totally different.” Respondent did not document that he examined L.P.’s genitals or checked for a hernia in any of his patient examination notes. L.P. described a long history of back pain, which resulted from two work-related accidents, and noted that he had seen other physicians for his back pain before presenting to Respondent at AmeriMed. According to L.P., none of his other physicians required him to undress completely for an examination, touched his genitals, or had him walk back and forth while naked. Additionally, L.P.’s current physician does not require him to undress for examinations. L.P. explained why he never told anyone about the inappropriate examinations until after Respondent stopped working at AmeriMed. L.P. testified that Respondent’s examinations made him feel uncomfortable, but he continued to see Respondent because he was the only doctor he had. L.P. explained that he wanted to say something about the inappropriate examinations but he remained silent because he did not want to lose his workers’ compensation doctor. L.P. described the process of finding a doctor who treated federal workers’ compensation claim patients as difficult, which is why he drove 138 miles from Ft. Myers to Tampa for his appointments with Respondent. Respondent, in an attempt to impeach L.P., suggests that there was collusion between L.P., the staff and other patients at AmeriMed to make false accusations against Respondent. L.P. testified credibly that he was never asked by AmeriMed staff or anyone else to fabricate allegations against Respondent. With regard to the incidents that occurred while he was being examined by Respondent, L.P.’s testimony was precise, lacking in confusion, and credible. Respondent’s witnesses Respondent presented four witnesses: C.W.; S.L.; G.T.; and E.C. These individuals are all former U.S. Air Marshals and were workers’ compensation patients treated by Respondent at AmeriMed. Patients C.W., S.L., G.T. and E.C. all know each other through the U.S. Air Marshal Service. Through his witnesses’ testimony, Respondent seeks to prove that AmeriMed staff solicited complaints against him, and that the patients involved in this case had ulterior motives in making the allegations against Respondent. None of Respondent’s witnesses testified, however, that they were solicited by anyone to make a complaint against Respondent, and their testimony was based largely on rumor and speculation. Additionally, Respondent presented no evidence showing that any of the patients in this case had an incentive, financial or otherwise, to fabricate the allegations against Respondent. Expert testimony Dr. Kevin Nowicki, M.D., testified as a medical expert for Petitioner. Dr. Nowicki is a licensed medical doctor in the State of Florida and is board-certified in orthopedic surgery. Dr. Nowicki performs similar examinations on patients with orthopedic pain, including workers’ compensation patients. Dr. Nowicki testified that a physical examination, within the professional scope of practice, on a patient with complaints of lower back pain, pain radiating down the legs, or numbness and tingling in the feet, does not require the patient’s underwear to be removed. A physical examination, within the professional scope of practice, on a patient with complaints of pain in both feet, flattened arches in both feet, plantar fasciitis, and pain on standing and/or walking would be limited to the area of the body below the knee, and the patient does not need to be naked. Additionally, according to Dr. Nowicki, it is unnecessary and medically unjustified to squeeze the scrotum, pull on the penis, use an instrument to touch the sides of the penis, or require a patient to walk back and forth across the room naked for an orthopedic examination. Dr. Nowicki also testified that when checking for a hernia, there may occasionally be a need to touch the patient’s scrotum, but such touching should take five to ten seconds and does not require any touching of the patient’s penis. Dr. Nowicki’s medical opinions with regard to orthopedic examinations and hernia examinations are accepted. His testimony is found to be credible and uncontroverted. Respondent did not offer the testimony of an expert witness to counter Dr. Nowicki’s testimony. Furthermore, Respondent chose not to testify at the hearing and invoked his Fifth Amendment privilege against self-incrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine issue a final order finding that Respondent, Samy F. Bishai, M.D., violated section 456.072(1)(v) as alleged in Counts I through IV of the Amended Administrative Complaint. It is further RECOMMENDED that the Board revoke Respondent’s license to practice medicine, impose an administrative fine in the amount of $40,000, and impose costs of investigation and prosecution. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2017. Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Michael L. Smith, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 (eServed) Allison M. Dudley, Esquire Florida Department of Health Prosecution Services 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Nichole C. Geary, General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Claudia Kemp, JD, Executive Director Board of Medicine Florida Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed)
