11-003341 Aig vs. Southern Baptist Hospital Of Florida, D/B/A Baptist Medical Center; And Department Of Financial Services, Division Of Workers' Compensation, Office Of Medical Services Status: Closed Recommended Order on Tuesday, September 6, 2011.

Summary: Petitioner failed to timely submit a petition for administrative hearing to the agency. The time for submission of the petition was not extended or waived or equitably tolled; or did not relate back. Recommend dismissal of petition as untimely.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AIG, )

)

Petitioner, )

)

vs. ) Case No. 11 - 3341

)

SOUTHERN BAPTIST HOSPITAL OF )

FLORIDA, INC., d/b/a BAPTIST )

MEDICAL CENTER; AND DEPARTMENT )

OF FINANCIAL SERVICES, DIVISION )

OF WORKERS' COMPENSATION, )

OFFICE OF MEDICAL SERVICES, )

)

Respondents. )

________________________________)

RECOMMENDED ORDER OF DISMISSAL

This cause is before Errol H. Powell, an Administrative Law

Judge of the Division of Administrative Hearings, on the Motion

to Dismiss and Motion for Summary Final Order filed by Southern

Baptist Hospital of Florida, d/b/a Baptist Medical Center on

July 11, 2011, and August 12, 2011 , respectively . The Motion to

Dismiss and Motion for Summary Final Order are considered

motion s for a recommended order of dismissal.

APPEARANCES

For Petitioner: Daniel J. Simpson, Esquire

Conroy, Simberg, Ganon, Krevans, Abel,

Lurvey, Morrow, and Schefer, P. A.

3440 Hollywood Boulevard, Second Floor

Holl ywood, Florida 33021

For Respondent : 1 Alan M. Fisher , Esquire

Alan M. Fisher, P. A.

825 South U.S. Highway One, Suite 310

Jupiter, Florida 33377

For Respondent : 2 Cynthia L. Jakeman, Esquire

Department of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

STATEMENT OF THE ISSUE

The issue for determina tion is whether Southern Baptist

H ospital of Florida, Inc., d/b/a Baptist Medical Center should

be reimbursed by AIG for medical services rendered in accordance

with the proposed agency action by the Department of Financial

Services, Division of Workers' Compensation, Office of Medical

Ser vices issued on April 22, 2011.

PRELIMINARY STATEMENT

On April 22, 2011, the Department of Financial Services,

Division of Workers' Compensation, Office of Medical Services

(Department) issued a determination on a dispute between

Southern Baptist Hospital of Florida, Inc., d/b/a Baptist

Medical Center (Baptist Medical Center), and AIG regarding

reimbursement for medical service s rendered. The Department ' s

determination was favorable to Baptist M edical Center. AIG

disputed the Department ' s determination an d requested a hearing.

On July 6, 2011, this matter was referred by the Department to

the Division of Administrative Hearings.

P ursuant to notice, this matter wa s scheduled for final

hearing by webcast and telephone conference call between

locations in Mi ami, Jacksonville, and Tallahassee, Florida , on

September 21, 2011.

On July 11, 2011, Baptist Medical Center filed a Motion to

Dismiss AIG's Late Petition for Administrative Relief requesting

dismissal of AIG's Pe tition for Administrative Hearing

(Petition ) as untimely. Among other things, AIG filed a

response asserting that the Petition was timely , to which

Baptist Medical Center filed a reply. The Depar tment did not

file a response.

Pertinent hereto, on August 11, 2011, t he undersigned

issued an Order R egarding Motion to Dismiss. The undersigned

determi ned that, based upon Baptist Medical Center 's suggesting

that it become an additional respondent and not objecting to AIG

being a pa rty to the instant case as the Petitioner , Baptist

Medical Center was wi thdrawing its Motion to Dismiss . However,

subsequently, Baptist Medical Center indicated that it was not

withdrawing its Motion to Dismiss and desired the dismissal of

the Petition. As a result, on September 1, 2011, the

undersigned issued an Order Vacat ing Order Regarding Motion to

Dismiss.

On August 12, 2011, Baptist Medical Center filed, among

other motions, a Motion for Summary Final Order, which is

considered a motion for recommended order of dismissal, 3 and

which also incorporates arguments presente d by Baptist Medical

Center in its Motion to Dismiss . In essence, Baptist Medical

C enter's position is that AIG's P etition , challenging the

Department's determination , is untimely and should be dismissed.

On August 19, 2011, AIG filed a response in oppos ition to the

M otion for Summary Final Order . On August 25, 2011, Baptist

Medical Center filed a reply to AIG's response. On August 26,

2011, the Department filed a response to AIG's response.

Further, Baptist Medical Center's Motion to Dismiss is

conside red a motion for a recommended order of dismissal. 4 The

Motion to Dismiss is also considered in this Recommended Order

in that, essentially, the same arguments for dismissal are being

presented in both the Motion to Dismiss and the Motion for

Summary Fina l Order .

A basic tenant of law is that , in addressing motions to

dismiss, allegations of a petition or complaint must be accepted

as true in the light most favorable to the Petitioner or

complainant. City of Gainesville v. State of Fla., Dep't of

Transp. , 778 So. 2d 519, 522 (Fla. 1st DCA 2001); Fox v. Prof'l

Wrecker Operators of Fla., Inc., 801 So. 2d 175, 178 (Fla. 5th

DCA 2001). Consequently, the allegations in the Petition must

be taken as true and in the light most favorable to AIG.

FINDING S OF FACT

Based on the Petition and assertions by the parties to

which no disagreement exists, the following Findings of Fact are

made:

1. Baptist Medical Center filed a Petition for Resolution

of Reimbursement Dispute (Petition for Resolution) with the

Department . Baptist Medical Center was the Petitioner , and AIG

was the respondent.

2. On April 22, 2011, the Department issued its decision

in favor of Baptist Medical Center. Contained in its decision,

a mong other things, the Department notified all affected

per sons, including AIG and AIG's servicing agent, Specialty Risk

Services , Inc. (SRS), that any petition for hearing was required

to be filed within 21 days from their receipt o f the decision

and that failure to do so would constitute a waiver of the right

to a hearing regarding the Department's decision.

3. Both AIG and SRS received their respective copy of the

Department's decision on April 25, 2011. A petition for hearing

was required to be filed with th e Department on or before

May 16 , 2011.

4. SRS forw arded a petition for administrative hearing to

the Department's Clerk by Federal Express on May 10, 2011. An

inference is drawn and a finding of fact is made that SRS'

petition for administrative hearing was received by the

Department on May 11, 2011. SR S' petition for administrative

hearing reflects, among other things, in the style and the

allegations, SRS as the Petitioner and SRS as requesting the

hearing . A lso , in an allegation identifying the Petitioner and

the Petitioner 's address, SRS includes AI G and Liberty Asset

R ecovery as Petitioner s.

5. Subsequently, AIG was contacted by the Department's

counsel on June 16, 2011. The Department's counsel advised AIG

that SRS did not have standing to file the petition for

administrative hearing; that AIG, i nstead of SRS, must be named

as the Petitioner ; and that the 21 - day deadline would be

extended to allow AIG to file an amended petition for

administrative hearing to correct the defect of SRS as the

Petitioner .

6. AIG forwarded its Petition to the Departm ent's Clerk by

Federal Express on June 20, 2011. An inference is drawn and a

finding of fact is made that AIG's Petition was received by the

Department 's Clerk on June 21, 2011.

7. The Department's Clerk received AIG's Petition more

than 21 days from the date that AIG received the Department's

decision on the Petition for Resolution. AIG's Petition i s

untimely.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties there to pursuant to sections 120.569 and 1 20.57(1),

Florida Statutes (2011 ).

9 . Section 120.569, provides in pertinent part:

(2)(a) Except for any proceeding conducted

as prescribed in s. 120.56 , a petition or

request for a hearing under this section

shall be filed with the agency. . . . A

request for a hearing shall be granted or

denied within 15 days after receipt.

* * *

(c) Unless otherwise provided by law, a

petition or request for hearing shall

include those items required by the uniform

rules adop ted pursuant to s. 120.54(5)(b) .

Upon the receipt of a petition or request

for hearing, the agency shall carefully

review the petition to determine if it

contains all of the required information. A

petition shall be dismissed if it is not in

substantial compliance with these

requirements or it has been untimely filed.

Dismissal of a petition shall, at least

once, be without prejudice to Petitioner 's

filing a timely amended petition curing the

defect, unless it conclusively appears from

the face of the pe tition that the defect

cannot be cured. The agency shall promptly

give written notice to all parties of the

action taken on the petition, shall state

with particularity its reasons if the

petition is not granted, and shall state the

deadline for filing an amended petition if

applicable. This paragraph does not

eliminate the availability of equitable

tolling as a defense to the unt imely filing

of a petition.

(d) The agency may refer a petition to the

division for the assignment of an

administrative law ju dge only if the

petition is in substantial compliance with

the requirements of paragraph (c).

10 . Pertinent to the instant case, the Department provided

in its decision that any petition for hearing was required to be

received by the Department within 21 days from receipt of its

decision.

11 . AIG received the Department's decision on April 25,

2011. As a result, AIG's Petition should have been received by

the Department's Clerk on or before Monday, May 16, 2011.

However, AIG's Petition was not received until June 21 , 2011,

more than one month after the date that AIG received the

Department's decision and more than one month after the date

that the Department should have received AIG's Petition.

12 . AIG argues that its Petition is not untimely because

t he action by the Department's counsel , after the filing

deadline, extended and waived the 21 - day requirement. The

undersigned is not persuaded that the action by the Department's

counsel extended and waived the 21 - day requirement. See

Riverwood Nursing C tr., LLC. v. Ag. for Health Care Admin. , 58

So. 3d 907 , 911 (Fla. 1st DCA 2011). Furthermore, even though

not argued, equitable tolling does not apply to the

circumstances presented in the instant case. Id.

13 . Additionally, AIG argues that its Petiti on is not

untimely because its Petition amends or relates back to the

earlier petition for hearing filed by SRS with the Department's

Clerk on May 11, 2011. The undersigned is not persuaded that

the relation back rule applies in this particular situation.

Id. See a lso Trosso v. Fla. Ins. Guar. , 538 So. 2d 103 (Fla.

4th DCA 1989).

14. Consequently, AIG's Petition i s untimely.

15. The agency with whom a petition for hearing is filed

determines whether the petition should be dismissed as untimely.

§ 120. 569(2)(c), Fla. Stat. SRS' petition for hearing was filed

with the Department , as SRS being the Petitioner . AIG's

Petition was filed with the Department , as AIG being the

Petitioner . The refore, the Department determines whether AIG's

P etition should be dismissed as untimely.

16 . The Department shall dismiss a petition for hearing,

at least once, without prejudice and allow the Petitioner to

file an amended petition curing the defect, unless it appears

conclusively from the face of a petition that the de fect in the

petition cannot be cured. § 120.569(2)(c), Fla. Stat.

17. The Department determined that SRS did not have

standing to file a petit ion for hearing as a Petitioner , but did

not dismiss SRS' petition for hearing.

18. AIG did not file a petitio n for hearing before the

expiration of the 21 - day requirement.

19. Subsequent to the 21 - day requirement, the Department's

counsel contacted AIG and advised AIG of SRS' standing defect

and that AIG was required to file the petition for hearing. AIG

then f iled its Petition.

20. Unless the Department determines that the defect in

SRS' petition for hearing, as SRS being the Petitioner , could be

cured by AIG 's filing a petition for hearing, as AIG being the

Petitioner , AIG's Petition should be dismissed.

21. AIG's Petition is untimely and should be dismissed.

RECOMMENDATION

Based on the foregoing Finding s of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Financial Services,

Division of Workers' Compensation, Office of Medical Services

e nter a final order dismissing AIG's Petition for Administrative

Hearing.

DONE AND ENTER ED this 6th day of September , 2011, in

Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 6th day of September , 2011.

ENDNOTES

1/ The Respondent is Southern Baptist Hospital of Florida, d/b/a

Baptist Medical Center.

2/ The Respondent is Department of Financial Services, Division

of Workers' Compensation, Office of Medical Services.

3/ This Administrative Law Judge does not have final order

authori ty in the instant case.

4/ Id.

COPIES FURNISHED:

Daniel J. Simpson, Esquire

Conroy, Simberg, Ganon, Krevans, Abel,

Lurvey, Morrow, and Schefer, P.A.

3440 Hollywood Boulevard, Second Floor

Hollywood, Florida 33021

Julie Jones, CP, FRP, Agency Cle rk

Department of Financial Services

Division of Legal Affairs

200 East Gaines Street

Tallahassee, Florida 32399 - 0390

Alan M. Fisher, Esquire

Alan M. Fisher, P.A.

825 South U.S. Highway One, Suite 310

Jupiter, Florida 33377

Cynthia L. Jakeman, Esquire

D epartment of Financial Services

Division of Legal Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommen ded order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.