12-002583 Hialeah Hospital vs. Department Of Financial Services, Division Of Workers' Compensation Status: Closed Recommended Order on Monday, February 25, 2013.

Summary: If injury not determined to be compensable, ALJ lacks jurisdiction to determine if carrier properly disallowed claim for reimbursement from health care provider.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HIALEAH HOSPITAL , )

)

Petitioner , )

)

vs. )

)

DEPARTMENT OF FINANCIAL )

SERVICES, DIVISION OF WORKERS' )

COMPENSATION , ) Case No. 12 - 2583

)

Respondent , )

)

and )

)

ASSOCIATED INDUSTRIES INSURANCE )

COMPANY, )

)

Intervenor. )

)

)

RECOMMENDED ORDER

On January 22, 2013, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings, conducted the

final hearing by video conference in Tallahassee and Lauderdale

Lakes, Florida.

APPEARANCES

Petitioner: Lorne S. Cabinsky, Esquire

The Law Offices of Lorne S. Cabinsky, P.A.

3020 Northeast 32nd Avenue, Suite 201B

Fort Lauderdale, Florida 33308

Respondent: Mari McCully, Esquire

Department of Financial Services

200 East Gaines Street

Tallahassee, Florida 32399 - 4229

Intervenor: James T. Armstrong, Esquire

Nathan Stravers, Esquire

Walton Lantaff Schroeder & Carson LLP

200 South Orange Avenue, Suite 1575

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Respondent properly dismissed

Petitioner's Petition for Resolution of Workers' C ompensation

Reimbursement Dispute, pursuant to secti on 440.13(7), Florida

Statutes.

PRELIMINARY STATEMENT

On June 8, 2012, Petitioner filed with Respondent a

Petition for Resolution of Reimbursement Dispute (Petition).

Petitioner allegedly provided servic es to an injured employee

from March 2 - 8, 2012, pursuant to an unsched uled emergency room

admission, for which it filed a claim for reimbursemen t of

$21,611.20. O n May 29, 2012, Petitioner allegedly received from

Intervenor an Explanation of Bill Review ( EOBR) that denied the

claim for reimbursement. The Petition objects to the denial on

the cited ground of a lack of authorization because

authorization allegedly was not required for an unscheduled

emergency room admission, under Florida Adm inistrative Cod e R ule

69L - 7.602 .

By Workers' Compensation Medical Services Reimbursement

Dispute Dismissal dated June 14, 2012 (Dismissal) , Respondent

dismissed the Petition on the cited ground that Petitioner had

not submitted an EOBR. Petitioner timely requested a f ormal

hearing.

At the hearing, Petitioner called five witnesses and

offered into evidence four exhibits: Petitioner Exhibits 1, 3,

8, and 9. Respondent called no witnesses and offered into

evidence one exhibit: Respondent Exhibit D, which consisted of

t he envelope and UB - 04 from what was originally filed as

Petitioner Exhibit 2. Intervenor called no witnesses and

offered into evidence two exhibits: Intervenor Exhibits 1 and

2, which were originally filed as Petitioner Exhibits 8 and 9.

The parties joi ntly offered two exhibits: Joint Exhibits A and

B. All exhibits were admitted.

The parties did not order a transcript. Respondent and

Intervenor filed proposed r ecommended orders on February 2 2,

2013, and Petitioner filed a proposed recommended order on

February 25, 2013. The Administrative Law Judge has treated

Petitioner's proposed recommended order as timely filed.

FINDING S OF FACT

1. At all material times, C. G. was employed by Solo

Printing, Inc., which had workers' compensation coverage through

I ntervenor.

2. 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.

3. 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 .

4. Intervenor's Notice of Denial cites three grounds for

denying payment for the bill: section 440.09(3), which

prohibits compens ation 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: Pe titioner's failure to submit an EOBR

with its Petition.

5. The only ground cited in the preceding paragraph that

is relevant is the first cited by Intervenor. This ground

raises the issue of compensabilit y by disclosing that Intervenor

has not conceded that C. G.'s injuries are compensable . N or has

a Judge of Compensation Claims (JCC) ever entered an order

determining that C. G.'s injuries are compensable . In fact,

C. G. has ne ver filed a claim for benefits.

6 . At the time in question, C. G. had healt h 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 rend ered to

him in March 2012.

CONCLUSIONS OF LAW

7 . Respondent transmitted this file to the Division of

Administrative Hearings, pursuant to section 440.13(7), Florida

Statutes. Under this subsection, a health care provider may

file a petition with Respon dent for the resolution of a dispute

concerning a bill for which a carrier has "disallow[ed]" or

"adjust[ed]" payment. § 440.13(7)(a). If there are disputed

issues of material fact, a party whose substantial interests are

affected by the ensuing proposed action may then request a

formal hearing with an Administrative Law Judge (ALJ) , pursuant

to section s 120.569 and 120.75(a).

8 . However, this case does not involve the "disallowance"

of a payment. (Clearly, Intervenor did not adjust the payment,

so this alternative is not further addressed in this Recommended

Order.) This case involves the "denial" of a payment. Although

an ALJ has jurisdiction over reimbursement disputes following a

disallowance, an ALJ lacks jurisdiction over reimbursement

disputes f ollowing a denial.

9 . In a disallowance case , the injuries are compensable,

but the claim for reimbursement is rejected on the ground of

medical necessity, insufficient documentation, lack of

authorization , or billing error . F la. Admin. Code R .

6 9L - 7.602(o). In a denial case (or a case involving a

disallowance and a denial) , the problem with the claim for

reimbursement is more basic: the injuries have not been

determined to be compensable. F la. Admin. Code R. 69L - 7.602(m).

10 . Here, Interven or used the proper term, "denial," in

its Notice of Denial due to the first ground cited for its

refusal to approve payment of the reimbursement claim:

noncompensability. Strictly speaking, the second ground cited --

a lack of authorization -- should result in a "disallowance," but

this ground is irrelevant to the present case anyway.

11 . "Compensability" may be established by only two means:

the concession of a carrier or determination by a JCC .

§ 440.13(1)(e), Fla. Stat. As noted in the Findings of Fac t,

neither Intervenor nor a JCC has determined that C. G.'s

injuries are compensable.

12 . As the ALJ discussed during the hearing, sometimes it

is necessary for an ALJ to make legal determinations concerning

matters over which he obviously has no juris diction, such as

legal title to real property or the meaning of a contract , in

the exercise of the jurisdiction that has been assigned to the

ALJ , such as factual dispute concerning environmental permitting

or professional discipline. In such cases, the d etermination of

the ALJ does not adjudicate the parties' rights to land or under

a contract, but constitutes a finding of fact or conclusion of

law subordinate to the permitting or disciplinary matter

properly at issue.

13 . Here, though, a compensabilit y determination by an ALJ

would not constitute a finding of fact or conclusion of law

subordinate to a matter over which the ALJ properly has

jurisdiction. Instead, a compensability determination would

serve the sole purpose of bringing this dispute withi n chapter

440 because, only if C. G.'s injuries are compensable, may

Intervenor be liable to Petitioner -- subject to other issues,

su ch as whether authorization was required in this case or

whether Petitioner was obligated to file a copy of the

Explanation of Benefit Review with its Petition. To varying

degrees, the parties have obscured the determinative issue in

this case by focusing on these disallowance issues, but the key

fact is that C. G.'s injuries have not been determined to be

compensable, and the key conclusion of law is that the ALJ lacks

the jurisdiction to make this determination to proceed to the

disallowance issues .

RECOMMENDATION

I t 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, Flo rida 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. Cabinsk y, 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

NOTI CE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in t his case.