Court Rejects Chiropractor’s Challenge to Adequacy of HCN Notices
The Fifth Court of Appeals has affirmed the decision of a trial court in a case where a Dallas-area chiropractor claimed that his patient had not been properly notified of an employer’s decision to participate in a health care network (HCN). The decision in Vanderwerff v. The Travelers Indemnity Company, et al., No. 05-17-00564-CV, June 28, 2018 involved multiple issues and is part of a long-running lawsuit between Dr. Eric Vanderwerff, D.C., the carrier, the Division of Workers’ Compensation, and the Commissioner of Workers’ Compensation.
Dr. Eric Vanderwerff, D.C., treated an injured employee whose employer had provided him with a notice of network requirements that described the employer’s election to participate in an HCN. Dr. Vanderwerff was not a member of the HCN. The carrier denied Dr. Vanderwerff’s bills for that reason.
Dr. Vanderwerff exhausted his administrative remedies in a med-CCH. The ALJ found that the employee had not been provided proper notice of the employer’s election to participate in the HCN because the notice of network requirements did not list all of the doctors in the HCN; instead, it provided a hyper link to a list of the HCN doctors. The appeals panel reversed the ALJ, and wrote that a link to the doctor’s list was sufficient notice within the meaning of the statute, so long as the network provided a paper copy of the list upon request from the claimant. (The claimant in this case did not request a paper copy.)
The evidence establishes that the claimant was hired by the employer on June 11, 2010. The evidence further indicates that on the date of hire, the claimant signed a Workers’ Compensation Health Care Network Employee Acknowledgement Form and received an information packet entitled Important Information for Employees Regarding Medical Treatment for a Work-Related Injury or Illness which contained all of the information required by Insurance Code Section 1305.451. The hearing officer, in the Background Information section of her decision, stated that the evidence did not establish that the information provided to the claimant contained a list of network providers as required in Insurance Code Section 1305.451(b)(12). However, the evidence shows that an electronic link to the provider list is provided to the claimant on page two of the information packet. Furthermore, 28 TEX. ADMIN. CODE § 10.60(c)(3) (Rule 10.60(c)(3)) provides that the notice of network requirements may be in an electronic format provided a paper version is available upon request. The evidence does not indicate that the claimant requested a paper version from the carrier or the employer.
No other issues were appealed or decided by the Division Appeals Panel.
Dr. Vanderwerff filed suit for judicial review and coupled his suit with a declaratory judgment action under the UDJA. He initially joined the Division and later joined the Commissioner as parties. In an earlier appeal, the Division successfully obtained an affirmation of the trial court’s dismissal of Dr. Vanderwerff’s DJ action against the agency.
After the Division’s appeal was completed, Travelers filed a motion for summary judgment on the merits and a plea to the jurisdiction on the DJ action against it. The Commissioner also filed a plea to the jurisdiction on the DJ filed against him. The trial court granted the carrier’s MSJ and plea to the jurisdiction, and granted the Commissioner’s plea to the jurisdiction as well. Dr. Vanderwerff appealed.
The court of appeals affirmed the judgment.
The Carrier’s MSJ on the Merits
The court of appeals agreed with the carrier that the employer’s HCN notice to the employee was adequate as a matter of law. The court wrote:
Appellant argues a link to a website with the list of doctors accepting new, injured workers cannot replace “written notice” under the statute. He contends “a website link to go browse through is not even close to the statutory written notice requirements.”
Section 1305.005 provides that “an employer that elects to provide workers’ compensation coverage under the Texas Workers’ Compensation Act may receive workers’ compensation health care services for the employer’s injured employees through a workers’ compensation health care network.” TEX. INS. CODE ANN. § 1305.005(a) (West 2009). Further, the insurance carrier “shall provide to the employer, and the employer shall provide to the employer’s employees, notice of network requirements, including all information required by Section 1305.451.” Id. § 1305.005(d). Section 1305.451(a) requires an insurance carrier that establishes contracts with a network to provide “an accurate written description of the terms and conditions” for obtaining healthcare within the network’s service area. Id. § 1305.451(a). The “written description” must, among other things, be “in English, Spanish, and any additional language common to an employer’s employees, must be in plain language, and in a readable and understandable format.” Id. § 1305.451(b).
The statute does not define “written description.” Words not defined in a statute are given their plain meaning, read in context, and construed according to the rules of grammar and common usage. TEX. GOV’T CODE ANN. § 311.011(a) (West 2013). Use of the word “written” indicates the information cannot be provided orally. Further, “written” (the past participle of “write”) is defined as “to form (characters, symbols, etc.) on a surface with an instrument; to form (words) by inscribing characters or symbols on a surface; to set down in writing; to communicate with in writing.” See Written. Simply put, if something is “written,” it is in writing. “Description” is defined as “a statement giving the characteristics of something.” See Description. Nothing within the plain reading of the statute indicates the list of network providers must be in writing on paper, as argued by appellant. To the contrary, written words can appear on a computer screen by typing on a keyboard (thereby forming words on a surface).
This conclusion is further supported by 28 Texas Administration Code section 10.60(c)(3), which provides that notice of network requirements “may be in an electronic format provided a paper version is available upon request.” See 28 TEX. ADMIN. CODE ANN. § 10.60(c)(3). It is undisputed claimant was provided a link to network providers in an electronic format. Although claimant’s affidavit attached to appellant’s motion for summary judgment states, “At no time did my employer ever provide to me a list of network providers,” his employer was not required to provide a list in a paper version unless he requested one. There is no evidence claimant requested a paper version. Accordingly, Travelers established as a matter of law that the employer properly provided claimant with the information required by section 1305.451. Therefore, the trial court did not err in granting Traveler’s motion for summary judgment and implicitly denying appellant’s motion for summary judgment. We overrule appellant’s first issue.
The court also rejected several complaints that Dr. Vanderwerff raised to the trial court’s rulings on jurisdictional issues.
FOLIO
