| IN RE: GARY J. MANLEY | ) | DOCKET NO. 66115 |
| ) | ||
| CLAIM NO. H-685270 | ) | DECISION AND ORDER |
| ) |
- APPEARANCES
- Petitioner, William R. Halliday, M.D.,
- Pro Se
- Claimant, Gary J. Manley, by
- Jerald D. Pearson, per
- Jerald D. Pearson and Adeline J. Crinks, Legal Assistant
- Employer, Skills, Inc.,
- None
- Department of Labor and Industries, by
- The Attorney General, per
- John Wasberg and William R. Strange, Assistants
This is an appeal filed by the petitioner on October 19, 1983 from a decision of the Department of Labor and Industries dated September 1, 1983 which denied him payment for a review of records at Buckner Center and a review of microfiche on May 17, 1983 and for commercial printouts from microfiche on May 31, 1983, for the reason that there is "no provision for these services". Reversed and Remanded.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the petitioner to a Proposed Decision and Order issued on December 5, 1985 in which the decision of the Department dated September 1, 1983 was reversed, and the matter remanded to the [2] Department of Labor and Industries to evaluate petitioner's request for compensation for the May 17, 1983 records review and microfiche review as well as readjustment for the May 31, 1983 commercial printout of claimant's microfiche.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The issue presented by this appeal and the evidence presented by the parties are adequately set forth in the Proposed Decision and Order. The result reached by the Proposed Decision and Order is correct. We have granted review to clarify possible confusion on the legal question of whether payment or rejection of medical bills is "discretionary" with the Department. The petitioner challenges the statements in the Proposed Decision and Order that "the Department has discretion to determine what if anything it will pay for a BR procedure" and that "the Department failed to exercise its discretion by not evaluating petitioner's request for payment for services he provided claimant on May 17, and May 31, 1983." (emphasis added) According to the petitioner, the payment or rejection of medical bills is not discretionary with the Department. We are constrained to agree.
The confusion apparently arises because of the term "may reject" contained in RCW 51.04.030. While RCW 51.04.030 uses the language "may reject any bill or item thereof incurred in violation of the principles laid down in this section or the rules and regulations promulgated under it", it also provides that the director "shall approve and pay those Õbillss which conform to the promulgated rules, regulations and practices of the director." [3]
It is a well recognized rule of statutory construction that all parts of a statute should be given meaning if possible and harmonized to effectuate the legislative intent. Tommy P. v. the Board of Commissioners 97 Wn.2d 385,391 (1982). Thus the dual requirements that the director shall pay conforming bills and may reject nonconforming bills must be harmonized.
The word "shall" is mandatory. State v. Jones 32 Wn. App. 359,375 (1982). The director has no choice but to pay those bills which meet the appropriate standards. That is, it is not within the director's "discretion" to reject a conforming bill. The word "may" cannot be interpreted to bestow such discretion; for the rejection of bills cannot be discretionary while the payment of bills is mandatory. The same process must attend either--a careful review of whether the bill conforms to the promulgated rules, regulations and practices of the director or, alternatively, was incurred in violation of the principles laid down in RCW 51.04.030 or the rules and regulations promulgated under it. Thus, in order to harmonize the mandatory term "shall approve and pay" with the language "may reject", the latter must be interpreted not as discretionary but as directory, authorizing the director to reject nonconforming bills.
Our interpretation of RCW 51.04.030 is supported by the realization that certain legal consequences flow from the use of the word "discretion". If a Departmental decision is discretionary, the scope of our review is limited solely to abuse of discretion, not a full-fledged review and a weighing of all evidence on the merits. If rejection of a medical bill were discretionary, the improper rejection [4] of a bill which met the required standards would be reviewable only for abuse of discretion, i.e., it would be essentially nonreviewable.
Furthermore, in instances under the industrial Insurance Act where the legislature has intended to grant discretion, it has explicitly so stated and has not relied on the causal insertion of the word "may". See RCW 51.32.095 ("sole discretion"); RCW 51.36.010 ("solely in his or her discretion"). RCW 51.04.030 contains no such explicit language. Thus neither the payment nor the rejection of medical bills is a "discretionary", i.e., essentially nonreviewable, matter.
In rejecting Dr. Halliday's bills the Department did not consider whether they conformed to the promulgated rules, regulations and practices of the director or whether they were incurred in violation of the principles laid down in RCW 51.04.030 or the rules and regulations promulgated under it. Instead the Department incorrectly made a threshold determination that there was "no provision" for the payment of bills of this nature and went no further. Code 99199 contained in WAC 296-21-013 exists as a catch-all to cover services which are not explicitly listed in other WAC sections. The mere fact that services billed under code 99199 are "by report" does not mean that the statutory language mandatorily requiring the Department to pay conforming bills is overridden by a Departmental WAC, nor is payment for "by report" services discretionary by virtue of the fact that the Department has chosen not to specifically list them and has considerable flexibility in establishing and changing BR procedures. The same test which applies to bills for specified procedures and services applies to bills for unspecified procedures and services. The Department has been granted a broad authority to set up the [5] medical fee schedule and procedures, and has been given a great deal of flexibility to change applicable procedures. However, once those procedures have been established, the Department must follow its own rules.
The Proposed Decision and Order is correct in reversing the bill rejections here and in remanding for an evaluation of those bills on their merits under RCW 51.04.030 and the applicable WAC's. In considering whether Dr. Halliday's bills should be paid, the Department may consider whether the billed services "re generally provided as an adjunct to common medical services" and whether or not the "circumstances clearly warrant an additional charge over and above the usual charges for the basic services". (See introductory paragraph of WAC 296-21-013). In addition, such questions as the necessity of the services, whether the services are consistent with the customary standard of care, whether the services violate the principles set forth in RCW 51.04.030 and the accompanying WAC's, and whether the costs have already been reimbursed as part of prior fees for diagnosis or treatment, may be addressed.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire record before us, the following findings of fact and conclusions of law are entered:
FINDINGS OF FACT
Proposed Findings Nos. 2 and 3 are adopted. Proposed Findings Nos. 1 and 4 are corrected to read as follows:
1. On April 23, 1980, the Department received an accident report alleging an injury to claimant's back on April 15, 1980, while in the course of his [6] employment with Skills, Inc. On July 29, 1980, the Department entered an order closing the claim with no award for permanent partial disability.
On November 26, 1980, the Department reopened the claim effective October 10, 1980 for authorized treatment and action as indicated. On January 19, 1981, the Department reopened the claim effective September 22, 1980. On March 18, 1981, the Department entered a closing order declaring treatment was no longer necessary and awarding no permanent partial disability.
On November 20, 1981, the Department received an aggravation application dated November 17, 1981. On January 28, 1982, the Department reopened the claim effective November 17, 1981 for authorized treatment and action as indicated. On September 1, 1983 the Department rejected bills from petitioner, Dr. William R. Halliday, for services provided the claimant on May 17, and 31, 1983. On October 19, 1983, the Board of Industrial Insurance Appeals received petitioner's notice of appeal. On November 17, 1983, the Board issued an order granting the appeal, assigning it Docket No. 66,115 and ordering proceedings be held on the issues raised by the appeal.
4. The Department denied payment to petitioner for the May 17 and May 31, 1983 services he provided without evaluating the payment requests on their merits.
CONCLUSIONS OF LAW
Proposed Conclusions Nos. 1 and 2 are adopted. Proposed
Conclusion No. 3 is deleted. Proposed Conclusion No. 4 is deleted, and we enter Conclusion No. 3 as follows:
3. The decision of the Department of Labor and Industries dated September 1, 1983 which denied petitioner payment for a review of records at Buckner Center and a review of microfiche on May 17, 1983 and for commercial printouts from microfiche on May 31, 1983 for the reason that there was "no provision for these services", is reversed and the matter is remanded to the Department with direction to evaluate those bills under code 99199 of WAC 296-21-013, the applicable medical fee WAC's, and RCW 51.04.030 and to take [7] further action as indicated based on such evaluation.
It is so ORDERED.
Dated this 25th day of March, 1986.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
GARY B. WIGGS Chairperson
/s/
FRANK E. FENNERTY, JR. Member
/s/
PHILLIP T. BORK Member