State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Connair v. City of New Haven

CASE NO. 3450 CRB-03-96-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 13, 1998

MICHAEL CONNAIR, M.D.

MEDICAL PROVIDER-APPELLEE

v.

CITY OF NEW HAVEN

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The medical provider was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 1127 Tolland Tpke., Manchester, CT 06040.

The respondent was represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the October 24, 1996 Denial of Motion to Dismiss of the Commissioner acting for the Third District was heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the October 24, 1996 Denial of Motion to Dismiss of the Commissioner acting for the Third District. It argues that the trier erred by denying their Motion to Dismiss the medical provider’s claim for payment of medical bills. We find error, and reverse the trial commissioner’s decision.

The instant claim originates from the appellee medical provider’s treatment of five different people: Anthony Perno, John Vendetto, Joseph Wojciechowski, Donald Paduano, and Anthony DePalma, each of whom has filed a claim for workers’ compensation or otherwise invoked the jurisdiction of this Commission.1 Perno, Vendetto and Wojciechowski all alleged work-related injuries that occurred during 1993, while Paduano filed a Form 30C alleging a May 9, 1994 injury, and DePalma alleged various injuries from 1986, 1989, and 1993. According to Dr. Connair, the appellee, he treated all of these employees for symptoms relating to their alleged work injuries, but was not paid for the full amount of his services.

A consolidated formal hearing on all of these cases was held on August 28, 1996, at which Dr. Connair made his claim for reasonable and customary medical fees for his services. The respondents submitted a Motion to Dismiss at the outset of the hearing, stating that the proceedings on this issue were improper because, pursuant to § 31-280 C.G.S., a Resolution and Order was issued in 1994 by the Chairman of the Workers’ Compensation Commission setting forth an alternate procedure regarding unpaid medical bills for services rendered between July 1990 and April 1994. Counsel for the city of New Haven also maintained that all charges by Dr. Connair had actually been paid pursuant to “reasonable and customary standards.” Transcript, 4. The appellee objected that jurisdiction lay with the trier to consider his claim, and that the Chairman’s resolution could not retroactively apply to claims concerning Dr. Connair’s services.

As the hearing progressed, and the topic of Mr. DePalma’s treatment was discussed,2 Dr. Connair explained that his bills had been paid without difficulty by the city of New Haven until late 1990, when a third party review organization became involved in administering the city’s workers’ compensation cases. At that point, the review organization began challenging the fees that he was charging, and began paying only portions of the bills that the doctor submitted. Dr. Connair stated that he was challenging both the reductions of his bills that occurred prior to the institution of the fee schedule in 1994 and those reductions that were made for services provided after the fee schedule was adopted. Transcript, p. 39. After the hearing, the trial commissioner denied the respondents’ Motion to Dismiss. That decision was appealed to this board.

Generally, the fees of a medical provider are subject to the approval of a commissioner under § 31-327(b) C.G.S. A doctor whose bills have not been fully paid may make a claim for payment before this Commission as long as the employee whom he treated has filed a workers’ compensation claim in the underlying case, or this agency has acquired jurisdiction by one of the alternative methods listed in § 31-294c. Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4-5 (1996). Once jurisdiction over the medical provider’s claim is established, a commissioner may decide whether or not to order a party to pay the medical bills, and in what amount. Id.; see also In re Veterans Memorial Medical Center, 15 Conn. Workers’ Comp. Rev. Op. 244, 247-48, 3063 CRB-8-95-5 (May 20, 1996) (hearing requests should not be granted unless prior attempts to reach agreement have failed), affirmed, 45 Conn. App. 922 (1997) (per curiam).

However, the fact that this Commission has jurisdiction over a workers’ compensation case does not preclude the use of varied adjudication procedures for differing situations. Most disputed issues in this forum are considered by a trial commissioner at a hearing, but there are some matters which are handled in other ways. For example, since July 1, 1995, a three-physician medical panel has been responsible for deciding whether a case medically qualifies for transfer to the Second Injury Fund pursuant to § 31-349c. Such findings were previously made by trial commissioners, but in an effort to expedite the resolution of disputes concerning previous disabilities, our legislature enacted P.A. 95-277, § 4(a). Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303-304 (1997). Also worth mentioning is § 31-290a, which gives an employee who believes that he or she has been discharged for filing a workers’ compensation claim a choice between filing a civil suit in superior court, or filing a complaint with the Chairman of this Commission. In the latter case, the Chairman selects a commissioner to hear the complaint, and that decision is appealable to the Appellate Court instead of the Compensation Review Board.

In 1991, § 31-280 was significantly amended by P.A. 91-339, § 6 to provide the Chairman with additional administrative powers. See Dixon v. United Illuminating Co., 232 Conn. 758, 772-73 (1995), citing Report of Legislative Program Review and Investigations Committee, “Workers’ Compensation in Connecticut,” p. i; see also p. 80. Further powers were enumerated in 1993 by P.A. 93-228. The chairman’s increased responsibilities under P.A. 91-339 and P.A. 93-228 include general mandates to adopt regulations and allocate commission resources to carry out the purposes of the Workers’ Compensation Act, as well as many specific duties (e.g., “develop guidelines for expediting disputed cases”). Among those duties is the requirement of § 31-280(11) that the Chairman establish standards for approving physicians’ fees, and publish (after consulting with representatives of employers, insurers, union representatives, physicians and third-party reimbursement organizations) a fee schedule setting doctors’ fees payable by an employer or insurer for services provided pursuant to Chapter 568. Section 31-280(26) also requires the Chairman to publish practitioner billing guidelines for employers, insurers and approved physicians that include procedures for the resolution of billing disputes,3 along with practice protocols and utilization review procedures for medical treatment.

Subsequently, Admin. Reg. §§ 31-280-2 and 31-280-3 took effect on January 31, 1994. Section 31-280-3 concerns dispute resolution, and requires insurers, self-insured employers, and other payors to establish internal mechanisms for resolving disputes regarding payment issues. Subsection (2) directs the chairman to set up Dispute Resolution Panels to “resolve issues that cannot be resolved through the internal mechanisms established by Payors. Each panel shall consist of three members appointed by the Chairman: one Reviewer or Payor representative, one Practitioner representative, and one representative from the Commission.” Practitioners are directed to request review of unresolved payment issue disputes by submitting requests for review to the Chairman and the payor. The Dispute Resolution Panel must consider the evidence, and issue a written final decision that is appealable under § 31-301 C.G.S.

In accordance with these regulations, two fee schedules became available on May 31, 1994. See Chairman’s May 9, 1994 Directive. One was a new practitioner fee schedule, effective for billing as of April 1, 1994. The other was a Prior Claims Resolution Fee Schedule, to be used for past disputed medical bills from July 1, 1990 through March 31, 1994. As explained in a Resolution and Order promulgated by the Chairman soon after the above regulations took effect, this Commission had received numerous complaints and requests for hearings regarding alleged reductions and/or denials of fees charged by practitioners, and the Chairman appointed a Medical Fee Advisory Group composed of representatives of physicians, insurers, third-party review organizations and self-insured employers to study the problem. Among the Group’s proposals was a recommendation that the Chairman adopt a procedure for resolving disputed prior claims as set forth in the Resolution.

Pursuant to this procedure, practitioners were permitted to resubmit prior claims with a date of service on or after July 1, 1990 and before the effective date of the Payment Review Regulations (April 1, 1994). This procedure applied to all disputes regarding CPT code assignment, claims payment review and other payment issues (such as the claims by Dr. Connair), and was binding on all employers, payors, reviewers, and practitioners. Resolution, § II(A). Each practitioner was made responsible for calculating eligibility for resubmission based on the Prior Claim Resolution Fee Schedule, and was required to complete a Fee Calculation Worksheet for each patient.4 Practitioners were required to submit their claims by certified mail no later than 90 days following the date the Chairman published the Fee Schedule (May 31, 1994). No claims were to be allowed after that date. Resolution, § IV(A).

In his brief, Dr. Connair argues that these regulations and the Resolution could not be applied retroactively to supersede the law at the time the claims were incurred. Although he admitted that he was aware of the Chairman’s Resolution, he stated that he did not submit documents pursuant to it because it would have been “absolutely impossible” to reformat thousands of items to comply with the procedures for resubmission “without literally hundreds of man-hours.” Transcript, p. 39-40. No separate argument was made at this time regarding the validity of the fee schedule as it affects claims for services provided subsequent to April 1, 1994.

We do not believe that the validity of the Prior Claims Resolution procedure applied through Admin. Reg. § 31-280-3(e) and the Chairman’s Resolution and Order is suspect in light of Figueroa, supra, or other decisions cited by the claimant. As discussed above, a similar alternate dispute resolution procedure for issues concerning the existence of a previous disability under § 31-349 was recently approved by our Supreme Court in Hall, supra. Given the concern over the backlog of cases in the workers’ compensation system at the time the 1991 and 1993 amendments to § 31-280 were passed, it makes sense to assume that the legislature intended the chairman to take steps to address problems such as the one surrounding disputed medical bills when it gave him the authority to “develop guidelines for expediting disputed cases” in § 31-280(23). By definition, any existing problems surrounding disputed cases would refer to cases that were already pending within the system, and needed to be dealt with in a more efficient manner. The use of a dispute resolution procedure recommended by representatives of all parties concerned was a step designed to do just that in a manner fair to everyone.

We are unconvinced that the substantive rights of Dr. Connair were seriously impeded by the implementation of the dispute resolution procedure. Any significant claims brought before the dispute resolution panel would still have been considered on the evidence, and would have been appealable to this board under § 31-301. Pursuant to Admin. Reg. § 31-280-3(e)(2), a workers’ compensation commissioner was one of the three members of the ad hoc dispute resolution panel, thus lending his or her expertise to the decisionmaking body. Although a formal hearing complete with oral testimony was not part of the procedure under § V(D) of the Resolution, the doctor has not explained why such a proceeding was necessary to settle disputes over the proper application of CPT codes to his treatments. Instead, it appears that he simply felt that there were too many forms to fill out to make it worthwhile for him to submit claims in accordance with the Resolution and Order.

In a system with finite resources such as this Commission, the legislature and the parties involved in these claims both realized that it would be beneficial to adopt a streamlined procedure to consider claims that would otherwise take years to resolve and would delay the resolution of other cases in the process. We believe that this need justified the simplification of the evidentiary process for these claims, and was not unduly dismissive of the due process rights of the various medical providers involved. Allowing the system to grind to a halt because of an overabundance of CPT code disputes was not an acceptable alternative. Thus, the insurers, employers, medical providers, and this agency came together to design a solution to this pressing problem. Dr. Connair was not entitled to opt out of this procedure simply because he thought it too burdensome to comply with the filing requirements. Thus, insofar as his claims concern services rendered between July 1, 1990 and March 31, 1994, the respondent’s Motion to Dismiss should have been granted.

The trial commissioner’s decision is reversed, and the case remanded with direction to grant the Motion to Dismiss.

Commissioners James J. Metro and John A. Mastropietro concur.

1 Another name, Doris Chadderton, is listed as one of Dr. Connair’s patients, but there is no information in the record relating to her specific claim. BACK TO TEXT

2 As evidence regarding the treatment provided to each employee by Dr. Connair had to be introduced separately, it was necessary for evidence on each claim to be presented individually. Mr. DePalma was selected by the commissioner to proceed first, and there was apparently no time for any of the other claimants to testify on the date of the formal hearing. BACK TO TEXT

3 Specifically, § 31-280(26)(A) provides that the chairman “[i]n consultation with insurers and practitioners, establish not later than October 1, 1993, and publish annually thereafter, practitioner billing guidelines for employers, workers’ compensation insurance carriers and practitioners approved by the chairman pursuant to subdivision (10) of this subsection. The guidelines shall include procedures for the resolution of billing disputes and shall prohibit a practitioner from billing or soliciting payments from a claimant for services rendered to the claimant under the provisions of this chapter (i) during a payment dispute between the practitioner and the employer or its workers’ compensation insurance carrier, or (ii) in excess of the maximum fees established pursuant to subparagraph (B) of subdivision (11) of this subsection. . . .” BACK TO TEXT

4 Eligibility was met if the “aggregate” of all prior claims was at least $100, and was comprised of individual CPT Code discrepancies of $12.50 or greater. Resolution, § III. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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