Dismissal of Doctor’s Case Riles Insurers

California insurers are fuming over a judge’s dismissal of criminal charges against a Santa Ana doctor who was accused of overbilling in workers’ compensation cases.

The doctor faced multiple charges of running up fees by charging from the moment a patient arrived at his office rather than when the examination began. But an Orange County judge dismissed the 67 felony charges against Edward Boseker in June in the middle of a jury trial, saying the orthopedic surgeon did not intend to defraud anyone.

In throwing out the case, Superior Court Judge Robert R. Fitzgerald sided with local workers’ compensation judges, who interpreted a state regulation limiting doctors’ charges to “face-to-face” time with a patient to include the total time a patient spends in the office. Insurers and others said they were shocked that the judge upheld that interpretation, which they described as bizarre.

The dismissal has prompted insurers to call for the state to step up its oversight of local workers’ comp judges, known as referees. “The problem is there are no statewide policies or procedures to provide for consistent interpretation of the law,” said Ed Woodward, an official at the California Workers’ Compensation Institute.

In the trial, two retired referees testified that they had interpreted face-to-face time as the entire period the patient spends in the office. Others insist, however, that the regulation clearly limits the time.

“It’s as clear as a bell,” said Pamela Foust, a workers’ comp referee in Santa Monica.

Boseker’s lawyer, Ronald Brower, said the state’s case against his client simply was weak. He speculated that insurers were angry with Boseker because he considers the interests of injured workers rather than insurers.

Boseker is one of many California doctors, lawyers, chiropractors and others involved in the workers’ comp system to face charges in recent years from fraud investigators across the state.

In efforts to crack down on fraudulent operators, the Legislature created the special program in 1992 to fund investigations by insurance regulators and local district attorneys. Officials say 1,810 arrests were made between July 1, 1992, and Dec. 30, 1997, resulting in 1,323 convictions.

The Orange County district attorney’s office began investigating Boseker three years ago after a former employee complained about possible improper billing of insurers, said Doug Brannan, a deputy district attorney.

In the trial, Adolph U. Molina, a retired supervising referee in Orange County, testified that he had widely interpreted face-to-face time as beginning when the patient enters the doctor’s office. He noted, for instance, that a nurse, or someone who is “an extension of the doctor’s persona” will take down the patient’s history before the individual actually meets with the doctor.

Boseker’s lawyer argued that the doctor billed according to that policy and did not intend to deceive insurers.

Judge Fitzgerald was on vacation and could not be reached for comment. Prosecutors say his ruling cannot be appealed because that would place the doctor in double jeopardy.