GQ Corner
Q. We had a claimant who had a brain bleed after a fall. He was hospitalized for a very long time. We just received the medical records and the billing. It is over 95 days since the dates of service. Is there anything in the law that would preclude payment since the hospital took so long in sending the billing? If they took us to a MDR would we prevail?
A. First of all when calculating the 95 days, it means that by the 95th day following the DOS, the provider must SUBMIT the bill to the carrier. Submit means that it leaves the possession of the provider. It does not mean that the carrier must receive it by day 95. Thus, if a provider places the bill in the mail on the 95th day and it is received by the carrier on day 100, it is timely because it was submitted by day 95. Also, if the 95th day falls on a weekend or holiday, then the provider has until the next business day to submit the bill. So, if the 95th day fell on 10-12, which was a Saturday, the provider would have through Monday 10-14 to submit the bill to the carrier.
I do not know if either of those scenarios are your situation. Let’s assume that they are not and that the provider simply failed to submit the bill within 95 days. In such a situation, there is an exception if the bill was submitted to the wrong carrier within 95 days and that once the provider learned of the error, the provider submitted the bill to the correct carrier within 95 days. See Section 408.027 and 408.0272 of the Texas Labor Code and rule 133.20(b). Additionally, the parties by agreement may extend the 95-day period. I have pointed out the law on the issue. That, however, does not mean that DWC’s Medical Review Division will not find some way to reward a provider.
Q. I have a claimant who was working at a jobsite and went into a restricted area that he was not supposed to be in to relieve himself. While he was in this area, he somehow managed to fall down a hill and injure himself. His employer is unsure what caused the fall as there were no witnesses and the claimant has since quit and will not speak to the employer (nor myself). Is this a compensable injury or can I deny this based on this being outside of course and scope of employment?
A. It is likely that this is compensable. The current AP case law indicates that brief departures from work activities during the workday, such as checking on vehicles in the parking lot or retrieving something, will not constitute a non-compensable departure from the employment. This might also be argued to be activity that falls within comfort and convenience, as trips to a bathroom may be covered. There is some limited case law that holds that engaging in explicitly prohibited activities constitutes a departure from course and scope. These are very fact specific and involve very clear departures from the authorized activities or an overt defiance of clear safety rules.
It may be relevant how far off the employee went or the specifics as to how the restricted area was marked, secured, and how employees were informed that it was off limits. If the fact show knowing, intentional, and overt defiance of known safety protocols, you may have a defense. The facts will have to be such that it clearly unreasonable for the employee to have so acted and still been considered in course and scope.
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