Winn-Dixie Louisiana & Sedgwick Claims Management VS Physicians Surgical Specialty Hospital
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0075 DIXIE W1NN LOUISIANA AND SEDGWICK CLAIMS MANAGEMENT VERSUS PHYSICIANS SURGICAL SPECIALTY HOSPITAL DATEOFJUDGMENT OCT 1 g ZQ 3 ON APPEAL FROM THE OFFICE OF WORKERS COMPENSATION DISTRICT 9 NO 12 PARISH OF TERREBONNE 04188 STATE OF LOUISIANA HONORABLE ELIZABF THC LANIER OWC Lance S Ostendorf Counsel for Plaintiffs Appellants Alejandro Rodriguez Orleans Louisiana Dixie Winn Louisiana and New Sedgwick Claims Management Michael M Meunier Counsel for Defendant Appellee Adrienne L Ganucheau Physicians Surgical Specialty New Hospital J Orleans Louisiana BEFORE KiJIIN HIGGINBO AND Tf JJ AM F I RIOT Disposition AFFIRMED vr y 3Sc 9 trZC f v A KI JHN J appellants Claimants employer Winn Louisiana and Sedgwick Claims Dixie Management collectively Winn appeal a judgment of the Office of Dixie Workers Compensation OWC which sustains an exception raising the objection of prescription filed by healthcare provider Physicians Surgical Specialty appellee Hospital Physicians and dismisses the employer claims for reimbursement of s overpaid medical benefits We affirm FACTUAL AND PROCEDURAL BACKGROUND It is undisputed that Winn employee Esther Lirette was injured in the s Dixie course and scope of her employment and sought medical treatment from Physicians in March 2007 The parties agree that Winn reimbursed Physicians for Dixie s Lirette medical treatment an amount significantly less than the total billed by Physicians and that Physicians thereafter requested additional payment from Winn e Di urging that the services rendered to Lirette qualified as an outlier reimbursement On November 26 2007 Winn paid Physicians an additional Dixie 45 770 24 for a total payment of33 for Lirette medical treatment 45 613 s In July 2008 through its agent Bonnie Saucier a medical cost analyst from RN Recovery Inc Winn advised Physicians that it had been overpaid and Dixie requested reimbursement in the amount of 24 This amount was calculated 45 680 based on Winn conclusion that Physicians did not meet the criteria for outlier s Dixie reimbursement and therefore was entitled under the Louisiana Workers In the original disputed claim form Sedgwick Claims Management Sedgwick was identified as the Administrator far Winn Louisiana Winn but elsewhere in the record Winn Dixie Dixie Dixie represented that Sedgwick was its workers compensation carrier Because the record fails to distinguish the xole each of these parties has relative to each other and in accoxdance with sassertions both before OWC and in this court we refer to these parties collectively Dixie Winn as the employer Z An ouUier is a statistical anomaly and permits special reimbursement consideration in cases that are atypical See Winn Louisiana u HCA Mgmt Services L 2010 La App 1 st Dixie P 2205 Cir 6 68 So3d 1187 1190 see also LAC 40 establishing outlier reimbursement 11 10 2519 2 Compensation fee schedule to payment of the per diem plus the cost of implants and a mark of 20 up On March 25 2009 a letter addressed to Physicians but directed to Saucier s attention from the Louisiana Workforce Commission LWC advised that although s e Di Winn outlier special reimbursement consideration appeal had been received it has been determined that you have failed to meet the required time frame As such LWC denied Winn request But LWC expressly noted Ifthe file had s Dixie been submitted before required deadline it is the opinion of LWC that the provider has failed to meet recommendation reimbursement the criteria would The be letter for outlier reimbursement inpatient advised surgical If an y per p a rty diem LWC stated its plus disa gr ees implant with this recommendation a formal dispute may be filed with OWC Email correspondence between Winn through its representative Dixie Saucier and LWC through its representative Brenda Ortego resulted in another letter from LWC to Physicians directed again to Saucier attention dated April 16 s 2009 This later letter simply restated the same recommendation set forth in the March 25 2009 correspondence but without discussion of the timeliness of the outlier special reimbursement consideration appeal Any pariy disagreeing with the recommendation was advised ofits rights to file a formal dispute with OWC On April 21 2009 and again on August 1 201 l Winn made demand Dixie from Physicians for the overpayment to no avail On June 8 2012 Winn filed Dixie 3 Winn claims that it attempted to comply with the procedure set forth in LAC 40 Dixie 5149 entitled Reconsideration of Disputed Reimbursements and that in response the Louisiana Workforce Commission LWC applied the provisions of LAC 40 to Winn as 5149 Dixie employer although the plain language of the rule addresses claims by healthcare providers See and compare Winn Louisiana 68 So at 1190 finding no error in the application of the Dixie 3d provisions of LAC 40 establishing outlier reimbursement to the employer claim despite 2519 s the plain language addressing a procedure to claims by providers Winn via Saucier in Dixie email correspondence challenged the applicability of the procedure set forth in LAC 40 in 5149 particular the time limitation to it since it was an employer rather than a healthcare provider and despite Winn initiation of that procedure Although at the OWC hearing that Winn s Dixie Dixie suggested it was enforcing the final ruling issued by LWC OWC concluded that LWC s authority was limited to a recommendation and therefore not subject to enforcement On appeal the parties have not challenged that OWC determination 3 this disputed claim urging entitlement to recovery of overpayment in the amount of 45 680 24 s Physician answered the lawsuit and filed a peremptory exception raising the objection of prescription After a hearing OWC sustained the exception of prescription and dismissed Winn claim This appeal followed s e Di DISCUSSION La R 23 provides in relevant part Except as otherwise provided S 1310 3F the workers compensation judge shall be vested with original exclusive jurisdiction over all claims or disputes arising out of this Chapter including employer demands for recovery for overpayment ofbenefits Accarding to La R S 1 2F 1034 23 should a dispute arise between a healthcare provider and the employer either party may submit the dispute to OWC in the same manner and subject to the same procedures as established for dispute resolution of claims for workers compensation benefits Prescriptive limitations relate to the remedy and are usually treated as procedural See Falgout v Dealers Truck Equipment Co 98 La 3150 99 19 10 748 So 399 407 As such under La R 23 2d S 1034 1when 2F Dixie Winn filed the dispute against Physicians in the OWC it was subject to the same procedures as any other OWC claimant and therefore subject to the prescriptive periods set forth in Louisiana Workers Compensation Law Accord LAC 40 prescription periods shall be as set forth in La R 23 5701A S 1031 E 1 F I 1209 and 1234 and because this claim for reimbursement of overpayment of medical benefits by an employer to a healthcare provider does not apply to a claim for an occupational disease or of a minor or incompetent the only applicable prescription period is as set forth in La R 23 S 1209 La S R 1209 23 addresses the compensation claims stating in relevant part 4 prescriptive periods for workers A 1 In case oF personal injury including death resulting therefrom all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident a formal claim has been filed as provided in Subsection B ofthis Section and in this Chapter 2 Where such payments have been made in any case the limitation shall not take effect until the expiration of one year from the time of making the last payment C All claims for medical benefits payable pursuant to R S 1203 23 shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident a formal claim has been filed with the office as provided in this Chapter Where such payments have been made in any case this limitation shall not take effect until the eapiration of three years from the time of making the last payment of inedical benefits Dixie Winn urges that the jurisprudence has limited application of the one year prescriptive period under Subsection A to the payment of indemnity 2 benefits therefore only Subsection C can apply Dixie Winn further asserts that because it seeks recovery of overpayment of inedical benefits its claim is not one for medical benefits payable pursuant to R 23 urging that as set forth in S 1203 Subsection C such claims are limited to medical benefits asserted by the injured employees 4 La R 23 provides in pertinent part S 1203 A In every case coming under this Chapter 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 and shall utilize such state federal public or private facilities as will provide the injured employee with such necessazy seroices B The obligation of the employer to furnish such care services treatment drugs and supplies is limited to the reimbursement as determined under the reimbursement schedule annually published pursuant to R 23 or the actual chazge made for the service S 034 2 whichever is less C The employer shall fumish to the employee the necessary cost of repair to or the replacement of any prosthetic device damaged or destroyed by accident in the course and scope and arising out of such employment D In addition the employer shall be liable for the actual expenses reasonably and necessarily incurred by the employee for mileage reasonably and necessarily traveled by the employee in order to obtain the medical services and for the vocational rehabilitation related mileage by the employee at the direction of the employer 5 Dixie Winn has correctly pointed out that Subsection A has been applied to indemnity benefits see Boquet v Tetra Technologies Inc 2002 La 1634 03 25 2 839 So 13 15 n and that Subsection C expressly references A 2d 2 11 claims for medical benefits payable pursuant to R 23 But because this S 1203 claim arises out of the original payment of inedical benefits by the employer pursuant to La R 23 and mindful of the overarching jurisdictional S 1203 provision of La R 23 providing that the dispute to OWC be made in S 1034 1 2F the same manner and subject to the same procedures as established for dispute resolution of claims for workers compensation benefits we hold that Winn Dixie had until the expiration of three years from the time of making the last payment of medical benefits to timely assert its claim See La R 23 see also Baton S 1209C Rouge General Med Ctr v Louisiana Rest Ass SelfInsurers Seru Bureau n 2197 2010 La App lst Cir 3 91 So3d 1046 1048 where a pluraliry of 12 14 this court determined that the applicable prescriptive period for a healthcare s provider claim for penalties and attorney fees against the claimant employer s was the same three prescriptive period that is applicable to its timely year filed underlying claim for medical benefits accord St Tammany Parish Hosp v Triniry Marine Pro Inc 2010 La App lst Cir 2 91 So3d ucts 1481 12 16 985 99l in which an en banc plurality of this court likewise reasoned that the applicable prescriptive period for a healthcare provider claim for penalties and s attorney fees against the claimant employer was the same three prescriptive s year period that is applicable to its timely underlying claim for medical benefits filed Dixie Winn overpaid Physicians on November 26 2007 but did not file this claim for overpayment until June 6 2012 well after the three period set forth year 6 in La R 23 Thus OWC correctly determined that Winn claim S 1209C s Dixie for recovery of overpayments for medical benefits is prescribed DECREE Far these reasons we affirm the OWC judgment sustaining the peremptory exception raising the objection ofprescription and dismissing Winn sclaims Dixie as untimely Appeal costs are assessed against Winn Louisiana and Sedgwick Dixie Claims Management AFFIRMED On appeal Winn asserts for the first time that it is entitled to recovery of the Dixie overpayment under a theory of unjust enrichment This issue was not raised before OWC and therefare is not propexly before this court See East Tangipahoa Deu Co LLC v Bedico Junetion LLC 2008 La App 1 st Cir 12 5 So 238 246 writ denied 2009 1262 08 23 3d 0166 La 35 So 146 09 27 3d 7
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