First Choice Surgery Ctr. v. Fresh Pickin's Mkt., Inc.
| Decision Date | 16 October 2012 |
| Docket Number | No. 2011 CA 1918.,2011 CA 1918. |
| Parties | FIRST CHOICE SURGERY CENTER v. FRESH PICKIN'S MARKET, INC. and Louisiana Restaurant Association Self Insurers Fund. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Elizabeth J. Wilson, Baton Rouge, LA, for Plaintiff–Appellee First Choice Surgery Center.
Kirk L. Landry, Baton Rouge, LA, for Defendants–Appellants Fresh Pickin's Market, Inc. and Louisiana Restaurant Association Self Insurers Fund.
Before PETTIGREW, McCLENDON and WELCH, JJ.
[1 Cir. 2]The defendants, Fresh Pickin's Market, Inc. (“Fresh Pickin's”) and its workers' compensation insurer, Louisiana Restaurant Association Self Insurers Fund (“LRA”) appeal a judgment awarding the plaintiff, First Choice Surgery Center of Baton Rouge, LLC (“First Choice”), fees for surgical services rendered to an injured employee of Fresh Pickin's, penalties, and attorney fees. Finding no error in the judgment of the workers' compensation judge (“WCJ”), we affirm the judgment.
First Choice is an ambulatory surgery center in Baton Rouge, Louisiana, which is owned by Dr. Arnold Feldman, a physician specializing in the treatment of chronic pain disorder, including spinal disorders. On November 29, 2005, Tricia Trentham, a workers' compensation claimant and an employee of Fresh Pickin's, underwent spinal surgery—a two-level discectomy—that was performed by Dr. Feldman at First Choice. Following the surgical procedure, on December 1, 2005, First Choice submitted insurance claims, which were coded according to internationally recognized billing codes, to LRA for Dr. Feldman's professional services, for the anesthesia services, and for facility fees for the procedures, supplies, medications, and injections provided to Ms. Trentham.
The professional and anesthesia services, as billed, were paid, but the amount billed for facility fees for services and supplies was not paid in full. Specifically, the total amount of facility fees billed was $38,244.40, and on January 31, 2006, LRA remitted payment for the facility fees in the total amount $5,552.63. This payment represented payment for only two of the five coded procedures that were billed, and did not include payment for any supplies, medications, and injections. First Choice apparently appealed the amount of the [1 Cir. 3]payment to QMedtrix, the repricing company that adjusted the payment to First Choice on behalf of LRA, but the appeal was denied.
Therefore, on July 24, 2006, First Choice filed a disputed claim for compensation against Fresh Pickin's and LRA alleging that First Choice provided health care services to Tricia Trentham, an employee of Fresh Pickin's who was insured by LRA, that the total for services rendered was $38,244.40, but LRA remitted payment of $5,552.63, that LRA made no allowance for the main billed procedure, and that LRA materially deviated from the reimbursement schedule for an ambulatory surgery center. Fresh Pickin's and LRA answered, contending that First Choice was not underpaid and was not entitled to additional sums because all payments owed or that could have been owed relating to the treatment of Tricia Trentham had been paid in accordance with the Louisiana Workers' Compensation Act.
On September 25, 2006, a second payment in the amount of $3,009.75 was received from LRA. This payment was for the same two coded procedures that were billed and partially paid with the January 31, 2006 payment.
A trial on the merits was held on February 2, 2011. Following trial, the WCJ took the matter under advisement, and on February 24, 2011, the WCJ rendered judgment, with oral reasons, in favor of First Choice. The WCJ, in its oral reasons, made the following findings:
The issue, as presented to me by the parties, was what amount can be received by First Choice for a facility fee for the services rendered on behalf of [Tricia] Trentham on November 29th of 2005.
The Court finds that the facility fee for those services rendered on that date are $20,019.11. This is the figure that [First Choice] calculated during [its] closing argument, taking into consideration the reduction of certain elements of the original bill, which were deemed during the proceedings to have been misbilled [by] the facility and should have been handled with the physician's amount and gives credit ... for the amounts that had already been paid.
[1 Cir. 4]The only evidence that the Court had concerning the usual and customary fee for these services in this area was the testimony of Ms. Beth Broadway, the administrator [for First Choice]. It was her testimony when they make their bills out, when the make their charges, that they are neither the least expensive nor the most expensive. I had no other evidence concerning the ... expenses for this procedure in this area.
Dr. Feldman testified that there are at least two other physicians in the area that do this specific procedure. Dr. Isaza, ... [whose] group has their own outpatient center, and then a physician with Ochsner's which ... has available to them the hospital and an outpatient facility. I had no other evidence of any kind as to what the usual and customary fee might be.
I have the documents [EOB] that show what ... [the] Utilization Review facility ... Qmedtrix Systems ... that purports that zero amount is the reasonable, usual and customary fee for this procedure in this area. And that just makes absolutely no sense. That's the only evidence I have from the defense....
The Court takes note of the fact that the bill was properly paid for the secondary level. The bill was properly paid for supplies, but nothing was paid for the primary level, and there being no fee scheduled for this procedure set based upon the testimony also of Ms. Sharon Ruiz, the [billing] encoder—and I was very impressed with her testimony concerning how she broke down the billing codes and how they were put together, the ... codes and where she found them. Doing it this way is the only way that the Utilization Review Rules allow for until a specific code for an endoscopic discectomy—some kind of set amount is produced by the fee schedules.... But at this point in time, what we have is the usual and customary fee in the area, and the only testimony I have on what is the usual and customary fee in the area ... is the evidence as provided by Ms. Broadway.
The Court takes note of the fact that the bill certainly was not perfect when it was submitted. First Choice themselves recognized that and ... took that into consideration in [its] closing argument and in recalculating what [it] felt would have been 90 percent of the usual and customary fee, minus the ... amounts [that] ... should have gone on the physician's fee, and also taking ... into consideration what had been paid.
In terms of penalties and attorney's fees, I would not be awarding necessarily a penalty and attorney's fees on the failure to pay this much money because this is ... pretty much a new situation. But the fact that nothing was paid and the procedures were not followed by First Choice or LRA in Utilization Review cries for a penalty and attorney's fee. [LRA] paid nothing on that first segment and they are required to pay at least what they think they should pay, or for them to take it up with our in-house Utilization Review Medical Services Department. The procedures say that if they do not feel that they should pay 90 percent of the bill that's presented, then they are [1 Cir. 5]supposed to take it up with our in-house procedures and they did not. And they did not offer or tender anything on that first level. Therefore, the [c]ourt is awarding a $2,000 penalty and the [c]ourt is awarding a $5,000 attorney's fee.
On March 21, 2011, the WCJ signed a judgment in favor of First Choice and against Fresh Pickin's and LRA in the amount of $20,019.11 for facility fees for surgical services rendered to Ms. Trentham, penalties in the amount of $2,000.00, and attorney fees in the amount of $5,000.00. From this judgment, Fresh Pickin's and LRA appeal.
On appeal, Fresh Pickin's and LRA contend that: (1) the WCJ committed legal error in awarding payment to an outpatient surgical center at an amount in excess of the maximum surgical per diem rate allowed by LAC 40:I.2505 for the exact same procedure if it had been performed at a full service hospital on an inpatient basis; (2) alternatively, the WCJ committed legal error in failing to apply the reasonableness analysis set forth in Johnson Bros. Corporation v. Thibodaux Regional Medical Center, 2000–1673 (La.App. 1st Cir.9/28/01), 809 So.2d 430 to the outpatient surgery center bill at issue in this case; (3) the WCJ committed legal error in shifting the burden of proof to the defendants where the outpatient surgery center failed to meet its initial burden of proving that its facility bill complied with the Louisiana Workers' Compensation Act and Rules; (4) alternatively, the award of fees for surgical services was calculated incorrectly; and (5) the WCJ committed legal error or manifest error in awarding penalties and attorney fees because the defendants presented issues that were res nova and reasonably controverted the claim.
(Assignment of Errors 1, 2, 3, and 4)
[1 Cir. 6]An employer's obligation to furnish medical expenses is governed by La. R.S. 23:1203, which provides that “the employer shall furnish all necessary drugs, supplies, hospital care and services, medical and surgical treatment, and any nonmedical treatment recognized by the laws of this state as legal.” La. R.S. 23:1203(A). The employer's obligation under this section, however, is limited by La. R.S. 23:1203(B), which provides:
The obligation of the employer to furnish such care, services, treatment, drugs, and supplies, whether in state or out of state, is limited to the reimbursement determined to be the mean of the usual and customary charges...
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