### TENNESSEE BUREAU OFWORKERS' COMPENSATION COURT OFWORKERS' COMPENSATION CLAIMS ATMURFREESBORO

Kaled Girgis, ) 

### DocketNo.: 2015-05-0303 Employee, ) 

### v. ) 

### LaCosta, Inc., ) 

### StateFile No.: 59197-2015 ) 

### Employer, ) 

### And ) 

### AccidentFund, ) 

### JudgeThomasWyatt Insurance Carrier. )



### COMPENSATIONHEARING ORDERFORTEMPORARYDISABILITY, PERMANENTDISABILITYAND MEDICALBENEFITS-DECISIONON THE RECORD

This matter came before the undersigned Workers' Compensation Judge on October 30, 20 17, for a Compensation Hearing. The parties stipulated the compensability ofthe claim, including stipulation ofLaCosta, Inc.'s liability for charges that Kaled Girgis incurred personally for treatment ofhis back injury. The sole issue for the Court's determination is whether LaCosta must pay Mr. Girgis directly for his past, unpaid, medical charges. For the reasons set forth below, the Court holds that the providers who treated Mr. 

### Girgis' back injury must submittheir charges to LaCosta or its carrier for paymentunderthe workers' compensation fee schedule. History ofthe Claim

Mr. 

### Girgis injured his back at Bridgestone's Murfreesboro tire plant. He worked there under a contractby whichLaCostaprovided cleaning services.

LaCosta initially denied that Mr. 

### Girgis' injury arose primarily out ofand in the
course and scope ofemployment, thus necessitating that Mr. 

### Girgis seektreatment on his
own. Mr. Girgis came under the care of orthopedist Dr. Sanat Dixit, who surgically

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### repaired discs at the L4-5 and L5-S1 spinal levels. Mr. Girgis received bills totaling
more than $90,000 for unauthorized treatment ofhis then-denied, but now-compensable, back injury.

Mr. Girgis filed aPetition for BenefitDetermination to challenge LaCosta's denial of his claim. After extensive participation in litigation, LaCosta accepted the compensability ofMr. Girgis' claim. The parties now stipulate that LaCosta shall pay Mr. Girgis $16,348.80 in temporary disability benefits, $12,656.80 in permanent partial disability benefits, and mileage reimbursement for 815 miles at the statutory rate. The parties also agreed that Dr. Dixit will provide ongoing reasonable and necessary medical treatment ofMr. Girgis' compensable injury.

LaCosta also agreed to pay for treatment that Mr. Girgis received during the period ofdenial. However, Mr. Girgis insists that LaCosta pay the full, billed, charges directly to him so he can pay the treating providers himself. LaCosta asserts that the treating providers must submit their charges for payment under the workers' compensation fee schedule. The parties, thus, submitted the payment issue to the Court for determination on the record without an evidentiary hearing. Upon review, the Court determined that the record contains sufficient evidence to allow the Court to decide the payment issue onthe record. 1
Findings ofFact and Conclusions ofLaw



### In deciding the disputed issue, the Court seeks guidance, as it must, from the statutes and bureau regulations that govern the payment of medical bills in workers' compensation claims. Tennessee Code Annotated section 50-6-204(a)(l)(A) (2016) requires the employer to "furnish, free of charge to the employee, such medical and surgical treatment, medicine, medical and surgical supplies

. . . made reasonably necessary by [a work-related] accident[.]" The law, however, does not require that the employer pay the treating provider's full, billed, charges for compensable medical services and supplies. Section 50-6-204(a)(3)(A)(iii) limits the employer's liability for compensable treatment to "the maximum allowable fees that are established in the applicable medical fee schedule adoptedpursuantto this section."

The Bureau's rules address the payment issue more specifically. Tennessee Compilation Rules and Regulations 0800-02-17-.10(1) (March 2014) provides that "[r]eimbursement for all health care services and suppliers shall be the lesser of(a) the provider's usual billed charges, [or] (b) the maximum fee calculated according the these rules[.]" The above rule also mandates that a provider "shall receive no more than the

1 The Court is aware that the parties did not obtain certification of this issue by a mediator following their participation in post-discovery mediation. The Court will permit the parties to submit the payment issue for determination without certification because they negotiated in good faith and were successful in resolving all issues but the payment issue. See Tenn. Code Ann. § 50-6-239(b)(2017)

. 2maximum allowable payment, in accordance with these Rules, for appropriate health services rendered to a person who is entitled to health care services underthe Act." Rule 0800-02-17-.03(42) defines "maximum allowable payment", in part, by stating that, 

### "[i]n
no event shall [a provider's] reimbursement be in excess ofthe [Bureau's] Medical Fee Schedule." (Emphasis added.)

The Bureau's rules also govern the methodology by which a provider of compensable treatment shall bill charges for payment under workers' compensation. Rule 0800-02-17-.05(1) provides that, "[s]ervices and medical supplies must be coded with valid procedure and supply codes of the Health Care Financing Administration Common Procedure Coding System[.]" An employer and/or its carrier may return incorrectly-billed charges to the provider and delay payment until the provider resubmits properbilling documentation. See Tenn. CompilationR. andRegs. 0800-02-17-.10(17). Turning nowtothepositions ofthe parties, Mr. Girgis contendedLaCosta's denial forced him to obtain treatment of his back injury outside the workers' compensation system. He argued that, under these circumstances, the Court should order LaCosta to payhim directly for the chargeshe incurred for unauthorized treatment.

In support ofthis position, Mr. Girgis relied on two opinions decided long before the enactment ofthe 2013 reform act, N J. Zinc Co. v. Cole, 532 S.W.2d 246 (Tenn. 1975), and Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 288 S.W.2d 246 (1956). While both ofthese opinions required employers to pay unauthorized medical charges in claims the employers initially denied, neither stands for the proposition that an employer must, or even should, pay unpaid charges directly to the employee, instead of to the uncompensatedprovider.

Mr. Girgis also cited GAFBuilding Materials v. George, 47 S.W.3d 430 (Tenn. 2001), in support of his position. However, this opinion involved an employee's exemption from the physician-selection statute in a claim initially denied by an employer. Nothing in the GAF opinion indicated that the Supreme Court intended to expand its ruling there past the specific facts before the court, and the Court will not so expand the ruling here.2

LaCosta urged the Court to resolve the payment issue consistently with the Supreme Court's opinion in Staggs v. Nat'/Health Corp., 924 S.W.2d 79 (Tenn. 1996). In Staggs, the court held that "an employee is not entitled to personally receive payment for medical expenses unless he or she personally paid the medical expenses and is due

2 Mr. Girgis also asked for direct payment because LaCosta was guilty of "unclean hands" in denying his claim. LaCosta argued it validly deniedthe claim based onthe information it had atthe time ofthe denial. Mr. Girgis came forward with no evidence on the issue ofwhy LaCosta denied Mr. Girgis' claim, thus the Court has no basis upon which to applythe "uncleanhands" doctrine.

3reimbursement. Instead, employers must pay the providers ofmedical care directly for incurred medical expense."3 

### /d. at 81.

The Court holds the ruling in 

### Staggs provides the clearest precedential authority applicable to the issue raised here. The ruling is consistent with Tennessee Compilation Rules and Regulations 0800-02-17-.11, which provides that: "[i]f an employee has personally paid for a health care service and at a later date a carrier is determined to be responsible forthepayment, then the employee shall be fully reimbursed bythe carrier."
Thus, the Courtholds thatMr. Girgis can only compel directpayment ofa medical charge he incurred for treatment ofhis compensable injury ifhe shows he paid for the charge out-of-pocket. Ifhe did notpay for the charge out-of-pocket, the Court holds that the provider ofthe subject charge must submit the charge to LaCosta or its carrier for payment under the applicable fee schedule. The Court will, however, require that LaCosta and/or its carrier immediately contact the providers who treated Mr. Girgis' spinal injurywith instructions onhowto submittheir charges for payment.
Itis, therefore, ORDERED:

1. That LaCosta and/or its carrier shall pay Mr. Girgis directly for any out-ofpocket payments he made toward the charges incurred for past reasonable and necessary treatment of his compensable injury; otherwise, LaCosta shall pay the charges incurred for past reasonable and necessary treatment ofMr. Girgis' injury after the providers ofthat treatment have presented their charges toLaCosta and/or its carrierupon appropriatebilling forms; 2. That LaCosta and/or its carrier shall immediately contact the providers of the past reasonable and necessary treatment of Mr. Girgis' injury with instructions onhowtomost expeditiously file for payment oftheir charges; 3. That Dr. Dixit is the authorized treating physician for ongoing reasonable, necessary, andrelated medical treatment; 4. That the parties shall schedule a telephonic hearing with the Court's Legal Assistant (J di.downs@tn.gov) within twenty days from the date of the entry ofthis order so that the Court can approve the terms to which the parties agreed inthis claim. Theparties shall utilize the standard settlement templates inpresenting the agreed terms to the Court for approval;

3 Both parties cited appellate opinions involving non-workers' compensation claims in support oftheir positions. Because workers' compensation is governed by statutory enactment, the Court holds those opinions are inapplicable here.
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# ..5. That LaCosta and/or its carrier shall pay taxed court costs of $150.00 pursuant to Tennessee Compilation Rules and Regulations Rule 0800-02- 21-.07 (2016); 6. That counsel for LaCosta shall prepare and submit a Statistical Data Form for this matterwithinten calendar days ofthe date ofthisjudgment; and 7. That counsel for Mr. Girgis shall file a petition for approval of his attorney's fees and expenses.
ENTERED this the 30th day ofOctober, 2017.

Judge Thomas Wyatt CourtofWorkers' Compensation Claims

APPENDIX
Technical record: The Court considered the following documents filed with the Clerk of the Court orWorkers' CompensationClaims inmaking its decision inthis claim:

1. Petition for BenefitDetermination; 2. Dispute CertificationNotice; 3. Request for ExpeditedHearing; 4. Initial Hearing Order; 5. Transfer Order; 6. Order ofContinuance; 7. Order; 8. Request for Admissions with attachedbillingrecords; 9. Order Setting Forth Procedure on Compensation Hearing Decision on the Record; 10.Agreed OrderofStipulation; 11.Employer's Brief; and 12.Employer's Response Brief.

Exhibits: Theparties submitted all evidence as attachments to the documents listed inthe TechnicalRecord.

5CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy ofthis Compensation Hearing Order
was sentto the following recipients by the following methods ofservice on this the 30th day ofOctober, 2017.

Name Certified Mail Thomas A. Travaglini, Employee Attorney Gordon Aulgar, Employer Attorney Via Service sentto: Email X Kaklegal13@aol.com

X Gordon.aulgar@accidentfund.com

# ---l.**e** 11\

# A~}**~d "JW\** **----=- ftJ** **,~ Penny~** Court CourtofWorkers' Compensation Claims WC.CourtCJerk@tn.gov

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