Delaware Veterans Home v. Dixon ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DELAWARE VETERANS HOME,
. C.A. No. K15A-12-001 WLW
Employer-Appellant, : Kent County
v.
MONICA DIXON,
Employee-Appellee.
Submitted: August 18, 2016
Decided: November 4, 2016
OPINION
On Appeal from the Decision of
The Industrial Accident Board
of the State of Delaware
Reversed and Remana'ed
Andrew M. Lukashunas, Esquire of Tybout Redfearn & Pell, Wilmington, Delaware;
attorney for Employer-Appellant.
Walt F. Schrnittinger, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware;
attorney for Employee-Appellee.
WITHAM, R.J.
Delaware Veterans Home v. Monica Dz``xon
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November 4, 2016
Employer/Appellant Delaware Veterans Home appeals from a decision and
award of the Industrial Accident Board (the “Board”). In that decision, the Industrial
Accident Board directed the insurance carrier and physicianl to “communicate and
determine the proper [billing] codes for the remaining unpaid procedures” and
awarded attorney’s fees and a medical witness fee to Claimant/Appellee Monica
Dixon.
Because the Board incorrectly applied the law, rendered a Vague adjudication,
and failed to base its findings on substantial evidence, the decision of the Board is
REVERSED and REMANDED for further proceedings.
ACTUAL AND PROCEDURAL BACKGROUND
Monica Dixon was injured in a work accident on August 23, 2010, while
working for Delaware Veterans Home. As the Board noted in its decision: “[She]
sustained injuries to her low back and has undergone several surgeries, including: L4-
5 diskectomy, decompression with a disk replacement; and L3-4 fusion . . . . ”2 The
dispute that gave rise to this appeal involves a surgery that was performed on January
29, 2014.
The Employer acknowledges that the surgery was compensable but disputes
the amount owed to both the provider, Dr. Ali Kalamchi, and his physician assistant,
Russell Queen. Dr. Kalamchi performed a surgery that has alternately been described
by the Employer as an “L3 -4 revision surgery that contemplated re-instrumenting that
1 Neither of whom were parties.
2 Dixon v. Del. Veterans Home, IAB Hearing No. 1358419, at l (Nov. l6, 2015).
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level”3 or by the Board as an “exploration, revision and re-instrumentation of the
fusion.”4 lt is the exact description of the surgery performed, as well as whether there
was a proper coding for the surgery, that lies at the heart of the dispute below.
I. The Billing Dispute
On January 29, 2014, Dr. Kalamchi submitted an Operative Report and Health
Insurance Claim Form to the Employer through its third-party administrator, PMA
(originally “Pennsylvania Manufacturers’ Association”). Dr. Kalamchi indicated that
he had performed a procedure which included a laminectomy (code 22612) and
arthrodesis, or fusion (63047). He further charged to explore the fusion (22830),to
remove existing instrumentation (22852), and for spinal fixation (22841).
On February 24 and February 26, PMA supplied Dr. Kalamchi with
Explanation of Benefits (EOB) forms. The EOBs indicated that PMA had evaluated
the charges under the Delaware Health Care Payment System and would be making
payment only for codes 22612 (laminectomy) and 63047 (arthrodesis). PMA left
codes 22830, 22852, and 22841 unpaid as “bundled” charges.
Dr. Kalamchi appealed the denials and resubmitted on March 13 and March 16,
2014, providing pages from a CPT coding textbook to show that at least code 22841
should be paid. PMA continued to deny payment.
The Claimant ultimately filed a Petition to Determine Additional Compensation
Due before the Board to resolve the billing dispute.
3 Employer-Below, Appellant’s Opening Br. on Appeal 3.
4 Dixon, IAB Hearing No. 1358419, at 2.
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II. T he Board Proceedings and Award
In preparation for the hearing, Dr. Kalamchi was deposed and provided his
description of the surgery, as discussed above. He explained that he personally
selected the codes to be charged and opined that the codes he selected were not
bundled.
At the hearing before the Board, the Employer offered the testimony of Krista
Lenig, an employee of PMA. Ms. Lenig explained that she reviews bills for
compliance with the Delaware Health Care Payment System, applying the National
Correct Coding Initiative (NCCI) Policy Manual and the American Medical
Association (AMA)’s Current Procedural Terminology (CPT).
With respect to the denied charges, Ms. Lenig explained that code 22841 is
never separately billable, and was contemplated within codes 63047 and 22612. She
also testified that code 22830 is bundled within code 22852, which in turn is bundled
into the master code 63047.
The Board’s decision described the procedure in detail. lt placed significant
weight on the doctor’s testimony and Ms. Lenig’s apparent admission that “the issue
is that the wrong codes were given - not that the doctor is not owed the amounts
charged.”5
5 Dixon, IAB Hearing No. 1358419, at 7. The hearing officer did not provide a citation to
where Ms. Lenig admitted that the doctor is not owed the amount charged. The closest record
evidence for that admission is as follows, during cross examination by the Claimant’s attorney and
a colloquy between the hearing officer and Ms. Lenig:
Q [Claimant’s Attorney]: So what we have here is a problem of numbers, not
the problem that he isn’t owed anymore money for the work that he did as
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On the basis of that admission, the Board found that the dispute here was over
"billing/coding/bundling issues” and that the Employer was unable to present
evidence “of the proper codes or any medical evidence that the procedures were
unbundled.” The Board emphasized that Ms. Lenig had admitted that “the surgical
procedure that Dr. Kalamchi performed was more complex than the one for which he
was paid.”6 As a result, the Board found, the core of the dispute was a “failure in
communication and cooperation between the billing personnel in Dr. Kalamchi’s
office and in the carrier, PMA’s, office.”7
Rather than awarding specific additional compensation, the Board’s decision
purported to “direct[ ] those skilled on these matters . . . to communicate and
determine the proper codes . . . so that the bills can be paid.”8 Because it believed it
was awarding the Claimant compensation, the Board found the Claimant was entitled
documented in the operative note.
A: The problem is he billed for a service that is not documented or for other
services that are bundled.
Q [Hearing Officer]: And during Mr. Schmittinger’s cross examination of
you, you admitted that, or it’s not contested that Dr. Kalamchi is owed for this
procedure, these amounts. The dispute is that the wrong codes were given.
A: Correct. l reviewed for the codes.
Q [Hearing Officer]: Okay.
Kalamchi Dep. 50:15-19, 60:20-25. lt is unclear how Ms. Lenig’s answer, given by an employee
of a non-party insurance carrier, would operate as a sort of judicial admission and bind the Employer
in these proceedings. Nonetheless, the Board’s decision seemed to assume that Ms. Lenig’s answer
bound the Employer.
6 Dixon, IAB Hearing No. 1358419, at 9.
7 Id.
8 ld. at 9-10.
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to attorney’s fees and a medical witness fee.
This appeal followed.
EMPLOYER’S CONTENTIONS
The Employer contends that the Board’s decision is unsupported by legal
analysis, unsubstantiated by the evidence, and “fails to reach any meaningful
determination.”
The Claimant did not file a brief in this appeal, although counsel for the
Claimant did enter an appearance
STANDARD OF REVIEW
This Court’s function on an appeal from a Board decision is limited. The Court
“review[s] the record to determine whether the Board’s decision is supported by
substantial evidence and is free from legal error.”9 “Substantial evidence means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”lo When the issue appealed from is solely a question of law, the Court
reviews its decision de novo.ll Otherwise, the Court reviews for an abuse of
discretion.12
DISCUSSION
The Court has thoroughly examined the record, scrutinized the Employer’s
9 Vincent v. E. Shore Mkts., 970 A.2d 160, 163 (Del. 2009).
10 Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988) (citing DiFill``ppo v.
Beck, 567 F. Supp. 110, 113 (D. Del. 1983) (applying state law in diversity)).
ll Vincent, 970 A.2d at 163.
12 Id.Delaware Veterans Home v. Monica Dixon
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brief, and reviewed the governing statutes, regulations, and applicable case law. The
Employer’s arguments on appeal have merit, and the decision of the Board will be
reversed, for three reasons: first, the Board’s decision was legally erroneous in that
it incorrectly analyzed the coding and payment dispute and failed to follow the proper
procedure; second, the award lacked the definiteness necessary to constitute a proper
adjudication; and third, the decision was not supported by substantial evidence
because the doctor’s opinion was not probative of whether the bill was properly
coded.
1. The Board Decision Failed to Apply the Law Governing its Decision.
The Board’s decision misapprehended the applicable law: failing to apply the
appropriate provisions, misplacing the burden of proof, and omitting a necessary
party. While potentially helpful in their analysis of other issues, decisions like
Rawley v. J.J. White, Inc. ,13 which were decided prior to the current statutory scheme,
do not control the outcome of this dispute. This proceeding involves a more limited
question about correct coding, and the legal standard is provided by statute and
regulation.
To explain the law that applies, it is important to review the changes that have
recently been made to workers’ compensation in Delaware over the past decade.
Delaware’s workers’ compensation system has been the subject of three major
13 918 A.2d 316 (Del. 2006).
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statutory reform efforts.14 The first was the Workers’ Compensation lmprovement
Act of 1997, which focused primarily on reducing delays in the delivery of benefits
to claimants.15 The second reform, which bears directly on this case, was a consensus
workers’ compensation reform bill (Senate Bill l) which passed in January 2007.16
Senate Bill 1 was focused primarily on reducing high workers’ compensation
premiums.17 While Senate Bill 1 enacted a number of measures, most relevant to this
case is its creation of a Health Care Advisory Panel, which in turn developed the
Delaware Health Care Payment System.18 The express purpose of the Health Care
Payment System was to address increasing costs by:
establish[ing] a system that eliminates outlier charges and streamlines
payments by creating a presumption of acceptability of charges
implemented through a transparent process, involving relevant interested
parties, that prospectively responds to the cost of maintaining a health
care practice, eliminating cost shifting among health care service
categories and avoiding institutionalization of rate creep.19
The results of the system’s adoption achieved some success. From 2007 to
14 Workers’ Comp. Task Force, Report to the Governor and General Assembly of the State
of Delaware l (2013), http://ltgov.delaware.gov/taskforces/wctf/ZOl30513/Workers’%20
Compensation%ZOTask%ZOForce%20Report%20--%20final%20drafc.pdf; see generally Act of J an.
17, 2007, ch. 1, 76 Del. Laws l, 1-13 (codified as amended at 18 Del. C. §§ 2607, 2609, and
scattered sections of 19 Del. C.) (enacting workers’ compensation reform).
15 Workers’ Comp. Task Force, supra note 26, at 1.
16 Ia'. at 2.
17 Ia'.
18 Act of Jan. 17, 2007, §§ 10_11, 76 Del. Laws at 3_6 (codified as amended at 19 Del. C.
§§ 2322A, 232213).
19 Ia'. § 11, 76 Del. Laws at 4 (codified as amended at 19 Del. C. § 2322B).
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2012, premiums dropped by over forty percent.20 But in 2011 and 2012, premiums
increased significantly, and in response the General Assembly created the Workers’
Compensation Task Force to review the rise and make recommendations.21 The Task
Force gave its recommendations in May 2013,22 and that third set of reforms were
adopted by the General Assembly the next month.23
The statutory scheme created by Senate Bill l consists of three parts that are
particularly relevant here: the provider certification process, the Delaware Health
Care Payment System, and the procedure for challenging a denied payment by a
provider or employer.
A. Provia'er Certification
All parties appear to agree that Dr. Kalamchi was a certified provider.24 As
such, he has certain rights and obligations under the reform provisions
One component of the reforms is the provider certification process.25 Certified
providers that meet the minimum certification requirements must also agree to a set
of terms and conditions, including “[c]ompliance with Delaware workers’
compensation law and rules” and “[a]cceptance of reimbursement and not unbundled
20 Workers’ Comp. Task Force, supra note 26, at 1.
21 Ia'. at 3.
22 Workers’ Compensation Task Force, Off. Lieutenant Governor,
http://ltgov.delaware.gov/taskforces/wctf/index.shtml (last visited Oct. 18, 2016).
23 Act ofJune 27, 2013, 2013 Del. Legis. Serv. (West) 55.
24 Employer-Below, Appellant’s Opening Br. on Appeal 15.
25 Act of J an. 17, 2007, § 13, 76 Del Laws at 7 (codified as amended at 19 Del. C. § 2322D).
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[sic] charges into separate procedure codes when a single code is more appropriate.”26
Essentially in exchange for a provider’s agreement to those terms and
conditions, the provider is entitled to both (l) a presumption that her services are
reasonable and necessary when she treats an acknowledged injury under the Delaware
health-care practice guidelines27 and (2) to prompt payment (within thirty days) of
each invoice unless the bill is contested in good faith.28
Dr. Kalamchi is entitled to all of the benefits and subject to all the obligations
of a certified provider, including a responsibility to submit compliant bills and to
avoid submitting unbundled charges.
B. T he Delaware Health Care Payment System
The Board failed to`` apply provisions of law that established and defined the
Delaware Health Care Payment System. The Board identified the correct regulation
but then seemed to suggest that “improper coding” did not necessarily imply
“improper unbundling.”29 That conclusion is a clear misapplication of the law.
The most important facet of the statutory reforms, at least as pertains to this
case, was the Delaware Health Care Payment System. The Delaware Department of
Labor implemented the System by regulation, with the relevant version made
26 19 Del. C. § 23 22D(a)(1), (a)(2). F or discussion of the term “bundling,” see infra Section
I.B.
27 Id_ § 2322€(6).
28 1a § 2322F(h).
29 Dixon, IAB Hearing No. 1358419, at 8-9.
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effective September ll, 2013.30
Under the System, “an employer and/or insurance carrier shall pay the lesser
of the rate set forth by the payment system or the health care provider’s actual
charge.”31 The statute dictates that the payment system “shall conform to the Current
Procedural Terminology (‘CPT’)” as laid out by the AMA.32 CPT codes, according
to the AMA, are “the most widely accepted medical nomenclature used to report
medical procedures and services under public and private health insurance
programs.”
lt also contemplates insurers applying so-called “bundling edits,” noting that
“[p]ropietary bundling edits more restrictive than the National Correct Coding
[(NCCI)] Policy Manual . . . shall be prohibited.”34
“Bundling edits,” as defined by the statute, refers to “the process of reporting
codes so that they most comprehensively describe the services performed.”35 As laid
out in the NCCl Policy Manual, a physician “unbundles” if he uses multiple codes
when a single comprehensive code is available:
30 17 Del. Reg. Regs. 322 (Sept. 1, 2013), http://regulations.delaware.gov/register/
september2013/final/17%20DE%20Reg%20322%2009-01-13.htm (codified as amended at 19 Del.
Aa'min. C. § 1341); see also 19 Del. C. § 2322B(14) (2013).
31 19 Del. C. § 2322B(4) (2013).
32 Id. § 2232B(10)(a); see also 19 Del. Aa'min. C. § 1341-4.1.5, -4.2, -4.3.
33 About CPT®, Am. Med. Ass’n, http://www.ama-assn.org/ama/pub/physician-resources/
solutions-managing-your-practice/coding-billing-insurance/cpt/about-cpt.page? (last visited Oct. 20,
20 1 6).
34 19 Del. C. § 2232B(10)(c); see also 19 Del. Admin. C. § 1341-4.1.5, -4.2.
35 19 Del. C. § 2322B(10)(c).
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Procedures should be reported with the most comprehensive CPT
code that describes the services performed. Physicians must not
unbundle the services described by a HCPCS/CPT code. Some examples
follow:
° A physician should not report multiple HCPS/CPT codes
when a single comprehensive HCPS/CPT code describes
these services. . . .
~ A physician should not fragment a procedure into
component parts. . . .
* A physician should not unbundle services that are integral
to a more comprehensive procedure.36
As for billing, the statute provides that “[c]harges for medical evaluation,
treatment, and therapy . . . shall be submitted to the employer or insurance carrier
along with a bill or invoice for such charges, accompanied by records or notes,
concerning the treatment or services submitted for payment, documenting the
employee’s condition and the appropriateness of the evaluation, treatment or
therapy.”37 “Treatments . . . provided by a certified health care provider shall be paid
within 30 days of receipt . . . unless compliance with the health care payment
system . . . adopted pursuant to § 2322B . . . of this title is contested, in good faith, to
the utilization review system set forth in subsection (j) of this section below.”38 And
36 Ctrs. for Medicare & Medicaid Servs., National Correct Coding Initz``ative Policy Manual
for Medicare Services l-7-8 (Jan. l, 2014), https://www.cms.gov/l\/ledicare/Coding/NationalCorrect
CodlnitEd/index.html
33 19 Del. C. § 2322F(a) (2013).
33 Id. § 2322F(d).
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“[d]enial of payment . . . whether in whole or in part, shall be accompanied with
written explanation of [the] reason for denial.”39
ln reviewing the denial of the Claimant’s claim, the Board must consider
whether the bill complies with the Delaware Health Care Payment System. Such an
analysis should include a discussion of what service(s) are encompassed by each CPT
code charged and whether any of the codes are subsumed within another code, by
specific reference to the AMA’s authoritative CPT materials or the appropriate
standards from the NCCl Policy Manual.
lt is insufficient to make general, hypothetical statements (e.g., “if
Employer/Carrier is following a proprietary bundling edit that is more restrictive
[than the NCCl standards] . . . , that proprietary bundling edit would be prohibited”‘“))
without identifying evidence that supports the statement. There was no record
evidence (although there was contrary testimony by the carrier’s representative) to
support a contention that the carrier’s edits were more restrictive than those dictated
by the NCCl standards, and the Board did not make any effort to identify any such
evidence.
lnstead, the Board engaged in a freewheeling discussion of the evidence before
it and came to its puzzling conclusion. That discussion did not include findings of
fact other than a mere summary of evidence presented by both parties. The Court
infers that the Board credited Dr. Kalamchi’s assertion that the “parts of the
39 Id. § 2322F(e).
40 Dixon, IAB Hearing No. 1358419, at 8 (emphasis added).
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procedure he performed” “were not unbundled” yet seemed also to credit Ms. Lenig’ s
testimony that “improper codes” were submitted.41 Without a factual finding, it is
unclear how the procedure can be both coded improperly and yet not unbundled. The
Board seemed to believe that the question of bundling requires “medical evidence,”
but the statute and regulations make clear that bundling edits are governed by the
fairly extensive manual promulgated under the NCCl and not such a case-by-case
determination Because the Board later concluded that the issue was one of
“improper coding” and not improper bundling, it seems to have tried to harmonize
both parties’ evidence without applying any analysis. That was problematic because
it was attempting to resolve the principally legal contention that the codes were
improperly unbundled.
The Board also gave weight to its gloss on Ms. Lenig’s testimony, finding that
she “admitted” that the procedure performed was more complex than the one reported
by the provider. lt is unclear to what extent Ms. Lenig’s purported admission would
be relevant in a determination of whether the bill as submitted was coded
appropriately As discussed above, Delaware’s Healthcare Payment System places
the onus on the provider to code his bills appropriately. A fortiori, it places no
burden on the Employer to generate compliant bills on the provider’s behalf or to act
against its own interest by suggesting codes or modifiers that may result in a higher
reimbursement
41 Ia'. at 9.
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C. Challenging a Deniea' Payment
The parties and the Board failed to follow the correct process for handling the
dispute, and failed to join the provider as a party.
The procedure for an employer to challenge a bill or for a claimant to challenge
a denial of payment based upon coding issues is opaque. At first blush, it may appear
that utilization review is the proper route,42 but this presents a problem: utilization
review was not and is not yet available for that purpose.43
lnstead, the procedure is governed by a statute that predates the current reform
efforts: 19 Del. C. § 2346. Under § 2346, the Board may be called upon by any
interested party to resolve a dispute between a provider and an employer or carrier
about payment of “medical and other services.” The statute lays out a few
requirements for such adjudications, including proper notice and a requirement that
the Board “hear and determine the matter.”44 lt limits a payer’s liability to “the
amount deemed reasonable and necessary” so long as “the provider is subject to the
jurisdiction of the Board and made a party to the proceedings.”
As in all proceedings before the Board, a party bringing a petition carries the
burden of proof.45
43 Id_ § 2322F(d), (j).
43 19 Del. Aa'min. C. § 1341-5.3.
44 19 Del. c_ § 2346.
43 See Walt v. Del. Home & Hosp. for the Chronz'cally Ill, 930 A.2d 929 (Table), 2007 WL
1947370, at *2 (Del. July 5, 2007) (citing Strawbria'ge & Clothier v. Campbell, 492 A.2d 853, 854
(Del. 1985)) (“As the moving party, [Claimant] had the burden of proving entitlement to workers’
compensation benefits.”).
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The Board and the Employer, at least, recognize that utilization review was not
available given the nature of the dispute.46 But the Board did not make any reference
to § 2346, instead citing pre-2007 cases for the proposition that reasonableness of
medical expenses is a factual question for the Board to decide.47 Citation to that
standard was misguided. The essential dispute is not over the reasonableness of the
expenses (which the parties agree were for compensable services) but whether the
charges, as billed, were payable under the Delaware Healthcare Payment System,
ln such a situation, where there is a dispute over coding, and until utilization
review becomes available, it is the Board’s role to determine whether the bill as
submitted is compliant. lf it is not compliant, the inquiry ends, and the Employer is
not responsible for paying the charges. lf it is compliant, again, the inquiry ends, and
the Employer must pay the charges according to the Delaware Healthcare Payment
System,
The Board here attempted to go further after finding that the bill was
noncompliant. lt tried to determine the matter by issuing an award ordering two non-
parties to “communicate and determine the proper codes” rather than performing its
own adjudicative function and meeting the statutory mandate to “hear and determine”
the dispute between the parties.48 That is not within its purview under the workers’
compensation law.
46 Dixon, lAB Hearing No. 1358419, at 8.
47 Ia'. at 7.
43 See also infra Section ll.
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With utilization review unavailable, in a proceeding under § 23 46 that is based
upon coding, the claimant as petitioner bears the burden of showing that the provider
is entitled to the requested payment. A claimant can do so by demonstrating that the
bill as submitted complied with the requirements of the workers’ compensation
statutes and regulations. lf an employer brings a petition, the employer would bear
the burden of showing noncompliance
ln this case, the Board improperly placed the burden on the Employer to come
forward with “evidence of the proper codes or . . . medical evidence that the
procedures were unbundled.”49 The Employer bore no such burden, and was certainly
under no burden to demonstrate to the provider how to maximize his revenue. The
Claimant, as petitioner, had the burden of showing that the codes were justified. She
could have done so by introducing evidence from the AMA’s CPT resources and by
reference to the NCCl Policy Manual. lnstead, the only evidence the Claimant
presented was testimony from the doctor, who was not qualified to determine the
ultimate legal question of whether the charges were bundled or unbundled charges.
Finally, neither the parties nor the Board took note of the statutory procedure
for challenging payment of medical expenses, and thus failed to join the provider as
a party to the action. That alone would likely rob the Board of jurisdiction over the
dispute. But in combination with a failure to meaningfully interact with the statutory
and regulatory requirements of the Health Care Payment System, it is fatal and
requires remand for a new hearing.
49 Dixon, IAB Hearing No. 1358419, at 9.
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II. The Board ’s Awara’ Was Too Ina'efinite.
As was briefly discussed above, the Board’s purported adjudication did not
meet the statutory requirements to constitute a final merits determination
A review of Delaware case law does not readily uncover opinions explaining
the requirements for a judgment such as the Board’s award to be valid. Nonetheless,
courts hold it as “a fundamental rule that a judgment should be complete and certain
in itself’
and that the form of the judgment should be such as to indicate with
reasonable cleamess the decision which the court has rendered, so that
the parties may be able to ascertain the extent to which their rights and
obligations are fixed, and so that the judgment is susceptible of
enforcement in the manner provided by law. Thus, while the formal
wording of a judgment is not sacramental, a judgment must be precise,
definite, and certain.50
And beyond general principles, the statutory authority granted to the Board
seems to assume a certain amount of definiteness in its awards. For example, an
award may only be entered as a judgment of record with the prothonotary if the party
can file “the amount of the award and the date of the award.”51 And a written
decision by the Board must “sucinctly and clearly state its findings of fact and
1552
conclusions of law.
The reason a petition was submitted to the Board was to determine whether the
30 46 Am. Jur. 2d Jua'gments § 66 (2016) (citations omitted).
31 19 Del. C. §2349.
32 Ia'. § 2348.
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bill was payable, not to determine how to make it payable. The Board went beyond
its statutory authority when it ordered the parties to reach a negotiated resolution. lt
could have reduced its award to a sum certain, denied the award outright, or requested
the parties produce further evidence so that it could render a decision. lnstead, it
proceeded to order the provider and carrier, both non-parties, essentially to settle the
matter between themselves. Such a judgment would defeat the purpose of Board
review-it is up to the Board to determine the matter, not to shift adjudicative
responsibility to other parties. Failure to do so was legally erroneous.
III. T he Boara1 ’s Decision Was Not Basea1 on Su-bstantial Evz'a'ence.
lt also cannot be said that the decision was based on substantial evidence. The
sole evidence that the coding was proper was Dr. Kalamchi’s testimony that he
believed it to be proper. While Dr. Kalamchi’s testimony might be probative of his
good intentions, it hardly establishes the accuracy of the coding under the Delaware
Health Care Payment System. ln fact, Dr. Kalamchi testified that he was “not aware
of all the national and local or Medicare [standards]” but that he was “aware of what
l’m doing is the right coding.”33
lnching closer to substantial was evidence presented by the Claimant with
regard to code 22841 (fixation). On balance, though, it weighs against the Claimant
rather than suggesting the charges are proper. The Claimant submitted to the insurer
pages from an unidentified CPT manual (apparently published by Optumlnsight, lnc.
33 Kalamchi Dep. 30:17-20.
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November 4, 2016
and not the AMA) that appear to show that 22841 is acceptable as an add-on code.34
However, the same pages show that code 22841 has zero relative value units, which
suggests that it may not be reimbursable. They also read “Do not report the . . .
removal ( . . . 22852 . . . . ) procedures in addition to the insertion of the new
instrumentation,” suggesting that even if code 22841 is payable, 22852 is not. And
it says nothing about code 22830 (explore fusion), which is also disputed as a
bundled charge. Expert testimony regarding coding or direct evidence of the
controlling standards is necessary to determine the legal question of whether the
charges comply with Delaware’s Health Care Payment System.
Gn remand, then, the Claimant must be given an opportunity to make a stronger
evidentiary showing sufficient for a reasonable mind to come to the conclusion that
the bill was properly coded and payable as submitted.
CONCLUSION
Because the Board incorrectly applied the law, rendered a vague adjudication,
and failed to base its findings on substantial evidence, the decision of the Board is
REVERSED and REMANDED for further proceedings On remand, the Board must
take evidence and make findings of fact as to the services performed and their proper
coding under the Delaware Health Care Payment System. lf the Board finds that
additional compensation is due, it must fix the amount due as a sum certain.
34 Employer’s Ex. 3.
20