            TENNESSEE BUREAU OF WORKERS' COMPENSATION
              COURT OF WORKERS' COMPENSATION CLAIMS
                         AT MURFREESBORO


 Kaled Girgis,                              )       Docket No.: 2015-05-0303
             Employee,                      )
 v.                                         )
 LaCosta, Inc.,                             )       State File No.: 59197-2015
                                            )
               Employer,                    )
 And                                        )
 Accident Fund,                             )       Judge Thomas Wyatt
             Insurance Carrier.             )


   COMPENSATION HEARING ORDER FOR TEMPORARY DISABILITY,
 PERMANENT DISABILITY AND MEDICAL BENEFITS-DECISION ON 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 of the claim, including stipulation of LaCosta, Inc.'s liability for charges
that Kaled Girgis incurred personally for treatment of his 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 submit their charges to LaCosta or its
carrier for payment under the workers' compensation fee schedule.

                                     History of the Claim

       Mr. Girgis injured his back at Bridgestone's Murfreesboro tire plant. He worked
there under a contract by which LaCosta provided cleaning services.

       LaCosta initially denied that Mr. Girgis' injury arose primarily out of and in the
course and scope of employment, thus necessitating that Mr. Girgis seek treatment 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-S 1 spinal levels. Mr. Girgis received bills totaling
more than $90,000 for unauthorized treatment of his then-denied, but now-compensable,
back injury.

        Mr. Girgis filed a Petition for Benefit Determination to challenge LaCosta's denial
of his claim. After extensive participation in litigation, LaCosta accepted the
compensability of Mr. 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 of denial. 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 on the record. 1

                           Findings of Fact and Conclusions of Law

       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 adopted pursuant to this section."

        The Bureau's rules address the payment issue more specifically. Tennessee
Compilation Rules and Regulations 0800-02-17-.1 0(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)(20 17).

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maximum allowable payment, in accordance with these Rules, for appropriate health
services rendered to a person who is entitled to health care services under the 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 of the [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
proper billing documentation. See Tenn. Compilation R. and Regs. 0800-02-17-.1 0( 17).

       Turning now to the positions of the parties, Mr. Girgis contended LaCosta'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
pay him directly for the charges he incurred for unauthorized treatment.

       In support of this position, Mr. Girgis relied on two opinions decided long before
the enactment of the 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 of these 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
uncompensated provider.

       Mr. Girgis also cited GAF Building 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 denied the claim based on the information it had at the time of the denial. Mr. Girgis came
forward with no evidence on the issue of why LaCosta denied Mr. Girgis' claim, thus the Court has no basis upon
which to apply the "unclean hands" doctrine.


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reimbursement. Instead, employers must pay the providers of medical 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 for the payment, then the employee shall be fully reimbursed by the carrier."

        Thus, the Court holds that Mr. Girgis can only compel direct payment of a medical
charge he incurred for treatment of his compensable injury if he shows he paid for the
charge out-of-pocket. If he did not pay for the charge out-of-pocket, the Court holds that
the provider of the 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 injury with instructions on how to submit their charges for payment.

        It is, therefore, ORDERED:

             1. That LaCosta and/or its carrier shall pay Mr. Girgis directly for any out-of-
                pocket 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
                of Mr. Girgis' injury after the providers of that treatment have presented
                their charges to LaCosta and/or its carrier upon appropriate billing 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 on how to most expeditiously file for payment of their charges;
             3. That Dr. Dixit is the authorized treating physician for ongoing reasonable,
                necessary, and related 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 of this order so that the Court can approve the terms to which the
                parties agreed in this claim. The parties shall utilize the standard settlement
                templates in presenting the agreed terms to the Court for approval;




3
  Both parties cited appellate opinions involving non-workers' compensation claims in support of their 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 matter within ten calendar days of the date of this judgment; 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 of October, 2017.




                                  Judge Thomas Wyatt
                                  Court of Workers' Compensation Claims


                                      APPENDIX

Technical record: The Court considered the following documents filed with the Clerk of
the Court or Workers' Compensation Claims in making its decision in this claim:

          1.  Petition for Benefit Determination;
          2.  Dispute Certification Notice;
          3.  Request for Expedited Hearing;
          4.  Initial Hearing Order;
          5.  Transfer Order;
          6.  Order of Continuance;
          7.  Order;
          8.  Request for Admissions with attached billing records;
          9.  Order Setting Forth Procedure on Compensation Hearing Decision on the
              Record;
          10. Agreed Order of Stipulation;
          11. Employer's Brief; and
          12. Employer's Response Brief.


Exhibits: The parties submitted all evidence as attachments to the documents listed in the
Technical Record.



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                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 30th
day of October, 2017.

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


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