On appeal from the Division of Workers' Compensation, Docket No. 2005-13121.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2007
Before Judges S.L. Reisner and Baxter.
Federal Express (Fed Ex) appeals from a March 22, 2007 order entered by the Division of Workers' Compensation, ordering Fed Ex to pay the $61,428 bill of Dr. Donald H. Frank for treatment rendered to Fed Ex's employee Sammy D. Villanueva (petitioner or Villanueva), plus $5400 in counsel fees and costs. We affirm.
Villanueva, a long-time employee of Fed Ex, was referred to Dr. Frank, a neuro-surgeon, by his treating neurologist, J. Erinna Monck. On April 21, 2003, Dr. Frank sent Dr. Monck a report opining that Villanueva had a large herniation at C4-5 and bulging at C3-4 "with apparent cord compression." The patient was complaining of numbness in his fingers and right leg. Dr. Frank indicated "the possibility of progressive irreversible neurological deficit" and the necessity of surgery. On May 17, 2005, Dr. Frank performed extensive spinal surgery on Villanueva.
Villanueva filed a claim petition on May 6, 2005, alleging that he had sustained injury to his cervical spine, neck nerves, nervous system "and complications arising therefrom," as a result of occupational exposure at work between January 1993 and April 2006. Fed Ex filed its answer to the petition on August 29, 2005, denying that the condition was work-related and putting Villanueva "to his proofs regarding all aspects of a compensable claim." Dr. Frank intervened in the matter to assert a claim for payment of his bill for the surgery, for which he asserted a charge of $61,428, only $7,409.94 of which had been covered by Villanueva's health insurer CIGNA. See N.J.S.A. 34:15-15; N.J.A.C. 12:235-3.10(a)3 (permitting a health care provider to intervene in a pending workers' compensation action to seek payment for medical services provided to the injured worker); Univ. of Mass. Mem'l Med. Ctr., Inc. v. Christodoulou, 180 N.J. 334, 345-46 (2004).
A hearing was held on March 1, 2007, on the issue of Dr. Frank's medical treatment of petitioner.*fn1 Dr. Frank testified that when he examined Villanueva in April 2005, he found severe compression of the spinal cord. He testified that there was an "urgent" need for surgery because otherwise Villanueva "could become paralyzed from the neck down." Therefore, he proceeded with the surgery on May 17, 2005. The surgery consisted of "[a]nterior cervical diskectomy and arthroedesis fusion and plating at C3-4, C4-5 and C5-6." Dr. Frank also testified that he performs this type of surgery frequently and that the amounts he charged for the surgery on petitioner were necessary and reasonable. He also testified that the charges were consistent with amounts he had billed and been paid in connection with other workers' compensation cases.
On cross-examination, Dr. Frank testified that he was "sure" that his office contacted "Mr. Villanueva's Workers' Compensation carrier" to request authorization for the treatment he performed. It was something his secretary would have done, however, and he did not have personal knowledge of its having been done. He testified that he did not agree to accept petitioner's health insurance as full payment for the operation. He expected to be paid by the workers' compensation carrier, based on his conclusion that petitioner's medical condition was related "within a reasonable degree of probability to his employment activity at Fed Ex." He also testified that he billed CIGNA because CIGNA imposed time limits on submission of claims, and it was in his patient's interest to obtain some insurance payment of the bill in case workers' compensation would not pay. Unless insurance paid the bill, Dr. Frank would charge Villanueva.
At the hearing, however, the employer's counsel argued that Dr. Frank had implicitly agreed to accept whatever CIGNA would pay, and that he was limited to that sum and could not attempt to collect the balance of his bill from the petitioner or the workers' compensation carrier. She also argued that Dr. Frank did not "know" whether his office contacted the workers' compensation carrier to request authorization for the treatment. At this hearing, however, the employer did not produce any evidence that Dr. Frank had not requested prior authorization.
On March 22, 2007, the judge approved a settlement of Villanueva's underlying permanent disability claim. She then addressed Dr. Frank's claim. Prior to the hearing, Dr. Frank's counsel had filed a brief with several attachments intended to show that Dr. Frank's office had in fact notified the workers' compensation carrier before performing the surgery. At the hearing, the employer's counsel objected to those attachments. In response, Dr. Franks' counsel sought permission to present further witness testimony to authenticate the documents. The judge denied the request as untimely, and struck the exhibits attached to the brief. The judge then placed an opinion on the record in which she determined that the employer should pay Dr. Frank's bill.
Relying on Benson v. Coca-Cola, Co., 120 N.J. Super. 60 (App. Div. 1972), she reasoned that no demand for treatment is necessary if it would be futile, that is, if . . . the employer has denied the claim. For if the respondent has denied the claim, it is obvious it would not authorize medical treatment. In that situation, an injured employee may obtain necessary medical treatment on his own and the respondent will be liable for the reasonable charges for that treatment if the employee's claim is later found to be compensable.
The judge noted that not only did the employer deny that the condition was work-related, it also did not file its answer until August 24, 2005, although the ...