State v. Bliss , 2014 Ohio 4357 ( 2014 )

[Cite as State v. Bliss, 2014-Ohio-4357.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-41
v. : (C.P.C. No. 12CR-4804)
Erik D. Bliss, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 30, 2014
Mike DeWine, Attorney General, and Sarah L. Leatherman,
for appellee.
Peterson, Connors, Fergus & Peer, LLP, and Kevin R.
Conners, for appellant.
APPEAL from the Franklin County Court of Common Pleas
CONNOR, J.
{¶ 1} Defendant-appellant, Erik D. Bliss, appeals from a judgment of the Franklin
County Court of Common Pleas convicting him of fraud in violation of R.C. 2913.48,
tampering with records in violation of R.C. 2913.42, and theft by deception in violation of
R.C. 2913.02. For the reasons that follow, we affirm the judgment of the trial court.
A. Facts and Procedural History
{¶ 2} Appellant is a licensed chiropractor who has operated an office in the
Cincinnati area since 1992. On September 25, 1996 and again on May 1, 1997, appellant
executed a provider agreement with the Ohio Bureau of Workers' Compensation ("BWC"),
which authorized appellant to treat patients insured by BWC. The agreement requires
appellant to abide by the BWC Billing and Reimbursement Manual ("Manual"), and to bill
BWC or a self-insuring employer for only those medical services he actually performs on
No. 14AP-41 2
BWC patients that are medically necessary, cost effective, and related to the claimed or
allowed condition.
{¶ 3} In 2006, BWC suspected appellant of fraudulent billing practices and
undertook an investigation of appellant. BWC assigned Special Investigator and Fraud
Analyst Lujuana Brooks to act as an undercover operative on the case. Brooks posed as a
patient who sustained a lower back injury at work and who had been authorized to receive
chiropractic treatments for her allowed lower back condition. BWC created a fictitious
identity for Brooks, including a name, social security number, and a BWC form C-9
setting forth the allowed conditions in her claim.
{¶ 4} Brooks first presented to appellant for treatment on December 7, 2006. As
part of her undercover story, Brooks told appellant she was pregnant so that appellant
would not order x-rays. Brooks proceeded to record the December 7, 2006 appointment
on both an audio recording device and a video recorder with audio capabilities. During
the office visit, Brooks was met by an office assistant who escorted her to a room where
Brooks laid on a roller bed for approximately three and one half minutes. The roller bed
operated on a timer that automatically switched off after a few minutes. After Brooks
finished the roller bed treatment, she was told to wait for appellant to summon her into
another room for face-to-face treatment. The videotape shows that, on December 7, 2006,
Brooks entered the examination room at the eight and one-half minute mark and exited at
the nine and one-half minute mark for a total of one minute of treatment with appellant.
{¶ 5} Appellant's treatment notes for each of Brooks' 50 office visits with
appellant were admitted into evidence. During appellant's trial, BWC played the videotape
of 5 of the 50 recorded visits. The testimony shows that the information on the treatment
notes formed the basis of appellant's bill for each visit. The evidence shows that in order
to receive reimbursement from BWC, practitioners must use certain numerical identifiers,
known as CPT codes, to identify each procedure or treatment modality performed on a
BWC patient. State's exhibit No. 43 reveals that appellant billed BWC for the following
services as a result of Brooks' December 7, 2006 office visit: mechanical traction, CPT
code 98940; evaluation and management, CPT code 99213; therapeutic exercise, CPT
code 97110; and electronic muscle stimulation ("EMS"), CPT code 97012. Brooks testified
that appellant did not perform an evaluation and management, therapeutic activity, or
EMS, as she understood BWC requirements for such treatments. According to Brooks,
No. 14AP-41 3
appellant's bill to BWC for her December 7, 2006 office visit contains $98.82 of
fraudulent charges.
{¶ 6} Brooks continued to receive treatment periodically with appellant for the
next 2 years, for a total of 50 visits. Brooks described 4 other visits in detail as the
corresponding videotape was played for the trial judge. Each of the 4 visits described by
Brooks and viewed by the trial court were similar in substance and duration to her first
visit on December 7, 2006. Each visit began with a few minutes on the roller bed followed
by a treatment session with appellant that lasted one or two minutes. At some of the visits,
appellant applied a needleless acupuncture device to Brooks' earlobe while he massaged
her back.
{¶ 7} Brooks examined the bills appellant submitted for each of the 50 visits in
order to determine whether appellant had actually performed the services for which he
billed BWC. Using the same methodology she employed after her first office visit, Brooks
documented a total of $3,625.10 of fraudulent charges out of $5,145.53 appellant billed to
BWC. In addition to the undercover operation, BWC fraud analysts reviewed appellant's
bills for a number of other BWC patients who received treatment from appellant during
the relevant time period. After conducting interviews with nine of these patients and
employing a methodology similar to that employed by Brooks, BWC analysts determined
that appellant fraudulently billed BWC for an additional $7,441.12 in chiropractic services
that he did not actually perform.
{¶ 8} On September 20, 2012, a special Grand Jury in Franklin County indicted
appellant on charges of fraud in violation of R.C. 2913.48, tampering with records in
violation of R.C. 2913.42, and theft by deception in violation of R.C. 2913.02. Appellant
waived his right to a jury trial, and his case was tried to the court. The trial judge found
appellant guilty of all counts in the indictment. On December 18, 2013, the trial judge
sentenced appellant to a term of five years probation and ordered appellant to pay
restitution in the amount of $11,066.22, plus investigation costs of $71,367.22. Appellant
filed a timely notice of appeal to this court on January 14, 2014.
B. Assignments of Error
{¶ 9} Appellant asserts the following as error:
1. Appellant asserts that the trial court erred in finding
appellant/defendant Erik Bliss guilty because the manifest
No. 14AP-41 4
weight of the evidence weighed heavily against conviction on
all counts.
2. Appellant asserts that the trial court erred in denying a
Criminal Rule 29(A) motion for a judgment of acquittal
because the State failed to produce sufficient evidence of every
element of every charge beyond a reasonable doubt.
C. Standard of Review
{¶ 10} "Because a Crim.R. 29 motion questions the sufficiency of the evidence,
'[w]e apply the same standard of review to Crim.R. 29 motions as we use in reviewing the
sufficiency of the evidence.' " State v. Walburg, 10th Dist. No. 10AP-1087, 2011-Ohio-
4762, ¶ 11, quoting State v. Hernandez, 10th Dist. No. 09AP-125, 2009-Ohio-5128, ¶ 6.
Sufficiency of the evidence is a legal standard that tests whether the evidence introduced
at trial is legally sufficient to support a verdict. State v. Thompkins, 78 Ohio St.3d 380,
386 (1997). We examine the evidence in the light most favorable to the state and
conclude whether any rational trier of fact could have found that the state proved, beyond
a reasonable doubt, all of the essential elements of the crime. State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus; State v. Yarbrough, 95 Ohio St.3d 227,
2002-Ohio-2126, ¶ 78; and State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396.
{¶ 11} In determining whether a conviction is based on sufficient evidence, an
appellate court does not assess whether the evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a conviction. See Jenks,
paragraph two of the syllabus; Thompkins at 390 (Cook, J., concurring); Yarbrough at
¶ 79 (noting that courts do not evaluate witness credibility when reviewing a sufficiency of
the evidence claim). We will not disturb the verdict unless we determine that reasonable
minds could not arrive at the conclusion reached by the trier of fact. State v. Treesh, 90
Ohio St.3d 460, 484 (2001); Jenks at 273. Whether the evidence is legally sufficient to
sustain a verdict is a question of law. Thompkins at 386.
{¶ 12} While sufficiency of the evidence is a test of adequacy regarding whether the
evidence is legally sufficient to support the verdict as a matter of law, the criminal
manifest weight of the evidence standard addresses the evidence's effect of inducing
belief. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25, citing Thompkins at
386. Under the manifest weight of the evidence standard, a reviewing court must ask the
No. 14AP-41 5
following question: whose evidence is more persuasive - the state's or the defendant's?
Id. at ¶ 25. Although there may be legally sufficient evidence to support a judgment, it
may nevertheless be against the manifest weight of the evidence. Thompkins at 387; see
also State v. Robinson, 162 Ohio St. 486 (1955) (although there is sufficient evidence to
sustain a guilty verdict, a court of appeals has the authority to determine that such a
verdict is against the weight of the evidence); State v. Johnson, 88 Ohio St.3d 95 (2000).
{¶ 13} "When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting
testimony." Wilson at ¶ 25, quoting Thompkins at 387. In determining whether a
conviction is against the manifest weight of the evidence, the appellate court must review
the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses and determine whether, in resolving any conflicts in the
evidence, the jury clearly lost its way and thereby created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial must be ordered. Thompkins
at 387, citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 14} A conviction should be reversed on manifest weight grounds only in the
most " 'exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting Martin at 175. Moreover, " 'it is inappropriate for a reviewing
court to interfere with factual findings of the trier of fact * * * unless the reviewing court
finds that a reasonable juror could not find the testimony of the witness to be credible.' "
State v. Brown, 10th Dist. No. 02AP-11, 2002-Ohio-5345, ¶ 10, quoting State v. Long,
10th Dist. No. 96APA04-511 (Feb. 6, 1997).
D. Legal Analysis
{¶ 15} For purposes of clarity, we will consider the assignments of error out of
order. In his second assignment of error, appellant contends that BWC did not produce
sufficient evidence to support his convictions. We disagree.
{¶ 16} R.C. 2913.48 defines workers' compensation fraud and states that "[n]o
person, with purpose to defraud or knowing that the person is facilitating a fraud, shall
* * * falsify * * * any record or document that is * * * necessary to establish the nature and
validity of all goods and services for which reimbursement or payment was received or is
requested from" BWC. R.C. 2913.02 defines theft and states that "[n]o person, with
No. 14AP-41 6
purpose to deprive the owner of property or services, shall knowingly obtain or exert
control over either the property or services * * * [b]y deception." Finally, R.C. 2913.42(A)
defines the offense of tampering with records and states that "[n]o person, knowing the
person has no privilege to do so, and with purpose to defraud or knowing that the person
is facilitating a fraud, shall * * * falsify" any record. A conviction under either R.C.
2913.02(B)(2) or 2913.48(B) requires proof that the value of goods or services stolen is
$7,500 or more. We determine appellant's intent to commit those crimes from the
surrounding facts and circumstances. See State v. Brown, 10th Dist. No. 10AP-1204,
2011-Ohio-4766, ¶ 29, citing State v. Dillon, 10th Dist. No. 05AP-679, 2006-Ohio-3312,
¶ 22.1
{¶ 17} In addition to the testimony of Special Investigator Brooks, the BWC
presented the expert testimony of Dr. George Steven Baer. Dr. Baer received his doctorate
in chiropractic medicine in 1978, and he has been practicing chiropractic medicine for 35
years. Dr. Baer is board-certified in forensic science with a specialization in chiropractic
medicine, and he has obtained board specialties in both occupational health and the
treatment of work-related injuries. Dr. Baer viewed each of the five videotaped office visits
previously presented during Brooks' testimony, and he was asked to provide his opinion
regarding the chiropractic services actually performed by appellant during each visit. Dr.
Baer was then asked to compare his findings to the corresponding billing statements
appellant submitted to BWC.
{¶ 18} Dr. Baer opined that appellant did not provide therapeutic services to
Brooks on any of the five visits shown in the videotapes. He further testified that, while
appellant billed for EMS and cryotherapy treatments on each visit, appellant did not
actually perform any such treatments. Additionally, Dr. Baer testified that he did not
observe appellant perform any of the lumbar stabilization exercises for which he billed
BWC. In fact, the only charges Dr. Baer could verify for each visit were those
corresponding to the use of the roller bed, which he identified as mechanical traction, CPT
code 98940. Dr. Baer qualified his opinion by stating that mechanical traction typically
lasts for 10 or 15 minutes, rather than 3 or 4.
1For purposes of each of the offenses for which appellant was convicted, the term " 'Deception' means
knowingly deceiving another or causing another to be deceived by any false or misleading representation,"
and the term " 'Defraud' means to knowingly obtain, by deception, some benefit for oneself or another, or to
knowingly cause, by deception, some detriment to another." R.C. 2913.01(A) and (B).
No. 14AP-41 7
{¶ 19} While Dr. Baer did observe appellant perform some manipulation of the
lumbar spine during each of the five visits, he did not observe the "Gonstead adjustment"
appellant listed on the treatment notes. Additionally, while Dr. Baer did observe some
period of spinal manipulation in the videotapes, a great deal of that treatment provided by
appellant focused on the thoracic and occipital regions of the spine, which are not
included as part of the claim allowance.
{¶ 20} Dr. Baer testified that therapeutic activity, CPT code 97110, is a time-based
treatment modality and that the Manual requires a minimum treatment time of 15
minutes for every billable unit. Dr. Baer acknowledged that appendix D to the Manual,
issued in January 2008, permits a practitioner to receive partial reimbursement for time-
based treatment modalities lasting less than 15 minutes when the practitioner employs
the "52" modifier, signifying lesser treatment.
{¶ 21} According to Dr. Baer, the use of the 52 modifier is appropriate only when
the practitioner applies a particular treatment modality for at least 8 minutes. He further
specified that the 52 modifier must be justified by the practitioner with a written
explanation for a treatment period of less than 15 minutes and a notation of the actual
time the practitioner applied the particular treatment modality. According to Dr. Baer, the
most common explanation for prematurely discontinuing a treatment modality is that the
patient cannot tolerate the treatment for the required time period, either due to pain or
weakness. Appellant's billing records reveal that, although he used the modifier in every
instance where he billed for a time-based treatment modality of less than 15 minutes, he
never included an explanation for the shorter time, nor did he indicate the number of
minutes, or seconds, he applied the treatment modality. As Dr. Baer viewed the five office
visits by investigator Brooks, he identified numerous time-based treatment modalities
applied by appellant for just a matter of seconds. Yet appellant billed BWC for a treatment
unit in each instance and received full reimbursement from BWC for each unit.
{¶ 22} Jean Stevens testified that she is employed by BWC in the medical policy
department and that she is a registered health information technologist. According to
Stevens, the complete Manual, including appendices, is available to BWC providers via
the BWC website. Stevens explained that appendix D provides the guidelines for billing of
time-based treatment modalities. According to Stevens, BWC borrowed from the
Medicare regulations in formulating BWC's eight-minute rule. Stevens corroborated Dr.
No. 14AP-41 8
Baer's understanding of the rule regarding time-based treatment modalities such as a
therapeutic activity, CPT 97110.
{¶ 23} Stevens acknowledged that, under BWC billing and reimbursement rules
that existed prior to November 2006, it was permissible for a provider to bill and receive
reimbursement for a treatment modality of less than eight minutes. However, with the
advent of the eight-minute rule set out in appendix D, providers were not to bill BWC for a
time-based treatment modality of less than eight minutes. Stevens testified that beginning
in 2006, BWC made efforts to publicize the new policy, including training seminars for
providers and their employees, a publication known as a "provider update" that was
mailed to all certified BWC providers in December 2006, and displaying all relevant
information via the BWC website.
{¶ 24} In the opinion of the court, the testimony of Investigator Brooks and Dr.
Baer alone, if believed, provides sufficient evidence to support a finding that appellant
submitted fraudulent charges totaling $3,625.10.
{¶ 25} Appellant, however, argues that there is insufficient evidence to sustain
convictions for fraud and theft, inasmuch as the evidence concerning his billing practices
for other BWC patients is circumstantial in nature. Specifically, appellant contends that
there is insufficient evidence to support a finding of either fraud or theft of goods or
services valued at $7,500 or more. While we agree that the evidence against appellant in
regard to the other nine BWC patients involved in this case is largely circumstantial, when
such evidence is viewed in favor of BWC, it is clearly sufficient to prove appellant's guilt
beyond a reasonable doubt.
{¶ 26} For example, patient Ken Wilson testified that, on each of his office visits,
he would first receive either electronic stimulation by way of small padded electrodes
placed on his back, or the office assistant would place him on the roller bed. He testified
that he received adjustments from appellant, but he acknowledged that he did not
perform any exercises in appellant's office. He estimated that he spent five to ten minutes
with appellant on each office visit. Appellant's billing statements for each of Wilson's
office visits reveal a charge for therapeutic exercises to develop strength and endurance,
range of motion and flexibility, CPT code 97110, yet the treatment notes do not describe
any such exercises. BWC paid appellant $39 on each occasion he claimed to have
performed a therapeutic exercise, CPT code 97110.
No. 14AP-41 9
{¶ 27} Patient Tammy Klump testified that she never performed any exercises at
appellant's office even though appellant's billing records show that appellant billed BWC
for such services after each of her appointments, using the 52 modifier. Klump stated that
she never spent more than eight minutes with appellant on any of her office visits.
Similarly, while patient Anthony Lind testified that the treatment provided to him by
appellant "worked" for his back pain, he acknowledged that appellant never had him
perform exercises in the office. Lind testified that the time he spent with appellant on each
of his office visits was "[a]nywhere from five to ten minutes." (Tr. 273)
{¶ 28} Patient Darla Snider recalled that appellant gave her a handout with
exercises she was to perform at home but she could not remember doing any stretching
exercises in appellant's office on any of her office visits. Nevertheless, the treatment notes
relative to her office visits contain the notation "did lumbar stabilization exercises for
flexibility with the patient * * * did assisted stretching of the hamstrings, crunches and
piriformis stretching." (State's exhibit No. 29.)
{¶ 29} Patient Brandon Snow recalled that appellant asked him to touch his toes
during one office visit but he did not remember performing any other type of exercise at
the office during his appointments. He recalled that his office visits lasted about five
minutes, "sometimes longer." (Tr. 332.) Although Snow recalled receiving EMS
treatments on each office visit, he did not state that he ever used the roller bed. However,
appellant's billing records show that appellant billed BWC for mechanical traction, CPT
code 9841, on seven occasions. Appellant frequently billed BWC for two other time-based
modalities he allegedly performed on Snow: therapeutic exercise, CPT code 97110, on 39
occasions, and massage, CPT code 98943, on 34 occasions. Appellant employed the "59"
modifier indicating a "Distinct Procedural Service," whenever he billed BWC.
{¶ 30} Patient Patricia Shelton testified that appellant showed her how to perform
certain exercises at her home, but appellant did not have her perform any of those
exercises in the office. Appellant billed BWC for lumbar stabilization exercises, with the
52 modifier, on each of her office visits. However, Shelton estimated that she spent no
more than "five minutes or so" receiving treatment from appellant on each visit. (Tr.
288.)
{¶ 31} Patient Robert Sharp testified that, on each of his office visits, he would first
receive either electronic stimulation on his back, or the office assistant would place him
No. 14AP-41 10
on the roller bed for five to ten minutes. He would then see appellant, who would
manipulate his back as he lay on an examination table while he also received needleless
acupuncture to his earlobe. When asked how long he spent with appellant, Sharp stated "I
guess an average of ten minutes." (Tr. 300.) He did testify that appellant had him lean
forward and then back for "three or four minutes, five minutes maybe," as appellant put
pressure on his back. (Tr. 301.) Sharp stated that appellant did not have him do this on
every visit.
{¶ 32} Sharp's wife, Jacqueline Sharp, also sought treatment from appellant for a
work-related back injury. She testified that she and her husband saw appellant for
treatment every two weeks from 2006 to 2009. She stated that, during her typical visit,
appellant would place her on an examination table and manipulate her back "to get it to
quit hurting." (Tr. 309.) She remembered that appellant would also "pull on my legs
down, you know, trying to pull it out of my back." (Tr. 309.) Although Sharp
acknowledged that the treatment helped her for a couple of days, she estimated that her
face-to-face treatment time with appellant lasted about a minute and a half on each office
visit. Sharp did not receive any treatment from appellant on any of her 47 office visits
other than the face-to-face treatment she described. Appellant, however, billed BWC for
therapeutic exercise, CPT code 97110, and received reimbursement of $38.13 for each of
Sharp's office visits. Appellant also billed BWC for chiropractic manipulative treatment
for each visit, CPT code 98941, and he received reimbursement of $48.18 each time.
{¶ 33} Special Investigator Nathan Cummings testified that appellant's billing
records for each of these patients showed a similar usage of the 52 modifier as he
observed with appellant's treatment of Investigator Brooks. Given the duration of the
office visits described by the BWC patients who he interviewed and who gave testimony in
this matter, Cummings concluded that appellant could not have performed therapeutic
exercises to develop strength and endurance, range of motion and flexibility for the
minimum of eight minutes as required by BWC for reimbursement under CPT code
97110. Cummings reached the same conclusion with regard to the other time-based
treatment modalities that appellant claimed to have performed, including chiropractic
manipulative treatment, CPT code 98941, and massage, CPT code 98943. Cummings
could not justify appellant's charges given the amount of time that these patients
reportedly spent with him.
No. 14AP-41 11
{¶ 34} The testimony of these witnesses, combined with the video and
documentary evidence admitted at trial, if believed, establishes that appellant knowingly
submitted false and fraudulent billing statements to BWC, with the purpose or intent to
deceive BWC, and that he obtained reimbursement in an amount greater than $7,500 for
chiropractic services he did not perform. Accordingly, we hold that sufficient evidence
support's appellant's convictions and that the trial court did not err when it denied
appellant's Crim.R. 29 motion for acquittal. Appellant's second assignment of error is
overruled.
{¶ 35} In his first assignment of error, appellant contends that his convictions
were against the manifest weight of the evidence. We disagree.
{¶ 36} Appellant presented the testimony of medical coding expert, Michael D.
Miscoe, who reviewed appellant's treatment notes for each of the five office visits shown
in the videotapes played for the court. Miscoe also reviewed BWC publications, including
the Manual and appendix D. In Miscoe's opinion, when the Manual and appendix D are
read together, they permit a practitioner to bill BWC for a time-based treatment modality
lasting as little as a few seconds so long as the practitioner employs the 52 modifier with
the appropriate CPT code. As Miscoe reviewed the five videotaped office visits during his
trial testimony, he was able to find a justifiable reason for every code used by appellant on
every corresponding billing statement, with the possible exception of cryotherapy. Miscoe
was careful to qualify his opinion, however, by stating that the issue of proper coding and
the issue of permissible reimbursement are separate and distinct. Miscoe believed that a
practitioner's billing statement should reflect every modality or procedure performed on a
patient, no matter the duration. In Miscoe's opinion, once the practitioner uses the 52
modifier to indicate lesser service, the burden shifts to BWC to determine whether
reimbursement is appropriate.
{¶ 37} Appellant also called Kenneth Thomas as his expert in clinical chiropractic
medicine. Although Dr. Thomas maintained a private chiropractic practice for eight years,
he testified that he has been employed exclusively in academia since that time, and he no
longer treats private patients. Dr. Thomas believed that the needleless acupuncture device
used by appellant on Brooks' earlobe qualified as reimbursable EMS. In fact, he went so
far as to opine that clipping the needleless acupuncture device to Brooks' blue jeans at the
back of her knee qualified as an EMS treatment for her lumbar spine. He was also of the
No. 14AP-41 12
opinion that a trigger-point manipulation of the trapezius area qualified as manual
therapy for the lumbar spine. Thomas did acknowledge that his review of the videotape of
Brooks' office visit on December 7, 2006, revealed no evidence of lumbar stabilization
exercises for flexibility, no crunches, and no cryotherapy, even though appellant billed
BWC for such services.
{¶ 38} Appellant argues that, accepting Miscoe's theory of coding and
reimbursement, it is reasonable to conclude that appellant did not intentionally deceive
BWC. Appellant argues that his "good faith" interpretation of BWC coding and
reimbursement rules creates a reasonable hypothesis of innocence and that his
convictions are against the manifest weight of the evidence. Appellant's theory of
innocence is both legally and factually flawed.
{¶ 39} According to appellant, under Ohio law, when the state's case against
defendant is based purely on circumstantial evidence, and the circumstantial evidence
does not exclude a reasonable hypothesis of innocence, the weight of the evidence does
not support a conviction. State v. Elbright, 11 Ohio App.3d 97 (10th Dist.1983). This is not
the prevailing rule of law in Ohio. Under Ohio law, a defendant may be convicted solely on
the basis of circumstantial evidence. State v. Nicely, 39 Ohio St.3d 147, 151 (1988).
"Circumstantial evidence is not less probative than direct evidence, and, in some
instances, is even more reliable." Id. In short, appellant's legal argument relies upon a
statement of law which is no longer controlling in Ohio. State v. Brown, 10th Dist. No.
05AP-601, 2006-Ohio-2307, ¶ 11, citing State v. Simon, Lucas App. No. H-04-026, 2005-
Ohio-3208.
{¶ 40} Moreover, the trial court, as the trier of fact in this case, was not required to
accept appellant's interpretation of the relevant rules and regulations governing BWC
providers, nor was the court required to believe Miscoe's impression of the modalities and
procedures that he claims to have seen in the videotapes. Although Miscoe testified that
he spent two years working in his father's chiropractic office, and he was qualified as an
expert in medical coding, he is not a chiropractor. For similar reasons, the trial judge was
not required to accept Dr. Thomas' opinion regarding the therapeutic value of the
chiropractic services he claimed to have seen in the videotapes.
{¶ 41} Special Agent Cummings testified that he participated in the investigation of
appellant, and that he helped Brooks prepare the case for prosecution. Based upon his
No. 14AP-41 13
review of the invoices submitted by appellant for his treatment of Brooks, Cummings
determined that appellant fraudulently billed BWC for $3,678.53 of chiropractic services
he did not perform; approximately $50 more than the total calculated by Brooks.
{¶ 42} During his testimony, Cummings related that a previous BWC audit of
appellant's billing practices in the years 1995 through 1997 had resulted in an
administrative determination of liability in the total sum of $28,343. With respect to the
instant investigation, Cummings reviewed patient records obtained from the managed
care organization that processed appellant's BWC invoices. Cummings reviewed the
invoices submitted by appellant for the other BWC patients who testified in this matter,
and he contacted each of those patients in the course of the investigation. His fraud
investigation focused primarily on appellant's billing practices for these patients relative
to CPT code 97110. According to Cummings, appellant consistently billed BWC for
therapeutic exercises that none of the patients could recall performing in appellant's
office. Cummings testified that the total fraud relative to each of the BWC patients who
testified in this matter is, as follows: $1,163.14 for Klump; $533.82 for Lind; $4,104.75 for
Jacqueline Sharp; $1,863.37 for Robert Sharp; $1,067.64 for Snider; $2720.68 for Snow;
and $1,955.68 for Wilson. (State's exhibit No. 55.)2
{¶ 43} With regard to the fraudulent charges for therapeutic exercise, appellant
claims that he performed a piriformis stretch on Brooks in each of her office visits and
that his treatment for many of the other BWC patients included a piriformis stretch.
Appellant further claims that even Dr. Baer acknowledged that a piriformis stretch is a
recognized treatment modality. According to appellant, this activity satisfies CPT code
97110, even though he only performed the activity for a matter of seconds.
{¶ 44} However, even if the trial court believed that a piriformis stretch qualified
as a therapeutic exercise to develop strength and endurance, range of motion and
flexibility for purposes of CPT code 97110, the success of appellant's theory of innocence
depends upon the trial court's acceptance of a patently unreasonable interpretation of the
Manual and appendix D. Specifically, that such a treatment modality is reimbursable if it
is performed for less than eight minutes. The testimony establishes that appellant
performed the piriformis stretch on Brooks for a matter of seconds. Moreover, even if the
2Although State's exhibit No. 55 lists $1,982.76 of fraudulent charges for BWC patient Andrew Gilfillen, we
note that Gilfillen did not testify in this matter.
No. 14AP-41 14
court accepted appellant's interpretation of the Manual and appendix D, Dr. Baer testified
that the use of the 52 modifier requires both an explanation of the reason for the lesser
service and an indication of the actual time spent performing the treatment modality.
Otherwise, reimbursement is inappropriate. Appellant did not provide the required
information when he employed the 52 modifier in any instance.
{¶ 45} Appellant also argues that none of the BWC patients who testified in this
matter is competent to provide an opinion as to whether they actually performed
therapeutic exercises, as the term is defined in chiropractic medicine. Appellant makes
the same argument relative to the other treatment modalities and procedures that BWC
identifies as fraudulent. While we agree that none of the witnesses who gave testimony in
this matter is competent to render opinions regarding specific chiropractic procedures,
each witness is clearly competent to describe the events that took place in appellant's
examination room, as well as the amount of time they received treatment from appellant
on each of their office visits. When this testimony is combined with the other testimonial
and documentary evidence offered by the State, such evidence weighs heavily in favor of
appellant's guilt of both fraud and theft of goods or services valued at $7,500 or more.
{¶ 46} We recognize that "[m]istake of fact is widely recognized as a defense to
specific intent crimes such as theft since, when the defendant has an honest purpose, such
a purpose provides an excuse for an act that would otherwise be deemed criminal." State
v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 64, citing State v. Cooper, 10th
Dist. No. 09AP-511, 2009-Ohio-6275, ¶ 9. However, it was within the province of the trial
court, as the trier of fact, to determine whether appellant had an honest purpose, and
whether such a purpose provided appellant with an excuse for billing practices that would
otherwise be deemed criminal. Id. It is clear from the trial court's decision convicting
appellant of all charges that the trial court did not believe that appellant acted with an
honest purpose. The weight of the evidence supports the trial court's decision.
{¶ 47} In short, the greater weight of the evidence establishes, beyond a reasonable
doubt, that appellant knowingly billed BWC for services he did not perform with the
intent to deceive BWC. The weight of the evidence further establishes, beyond a
reasonable doubt, that the reimbursement appellant fraudulently obtained from BWC is
valued at $7,500 or more. Accordingly, appellant's convictions of fraud, tampering with
No. 14AP-41 15
records and theft by deception are not against the manifest weight of the evidence.
Therefore, appellant's first assignment of error is overruled.
{¶ 48} For the foregoing reasons, having overruled both of appellant's assignments
of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN and O'GRADY, JJ., concur.
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