The Register-Herald, Beckley, West Virginia

December 5, 2013

Court upholds Kostenko decision

By Pamela Pritt
Register-Herald Reporter

CHARLESTON — After eight years of decisions and appeals, the West Virginia Supreme Court of Appeals has upheld lower courts’ and commissions’ decisions to terminate a Beckley-area doctor’s right to receive workers’ compensation payments.

Dr. Michael Kostenko, who operates the Coal Country Clinic in Daniels, was first cut off from workers’ compensation payments in 2005 because he “allegedly provided care that was excessive, medically unreasonable and unethical,” according to the memorandum decision handed down Wednesday by the high court. That decision was upheld by a hearing examiner, but was reversed when Kostenko appealed the decision to Raleigh County Circuit Court. The case was remanded to the West Virginia Office of the Insurance Commissioner (WVOIC).

In 2008, the WVOIC issued a second notice of termination, charging Kostenko with three violations, including administering tendon sheaths in excess of treatment guidelines, allowing massage therapists to compound and administer IVs and engaging in “upcoding” or “billing for services that implied a higher level of complexity than was documented in the medical records” and “failing to report and correct fraudulent billing” by his office, according to the memorandum.

Neither Kostenko nor his attorney attended a second show cause hearing in 2010, instead filing a petition in Kanawha County Circuit Court. The hearing examiner held the hearing without Kostenko since the doctor’s attorney did not ask for a continuance or postponement. The hearing examiner recommended that Kostenko’s right to receive payments be terminated permanently, and the insurance commissioner issued a final order adopting that decision. Kostenko appealed this decision to Raleigh County Circuit Court, which in 2012 upheld the earlier decisions.

In his appeal of that ruling, Kostenko said the hearing examiner was misled by the WVOIC’s attorney, that the WVOIC attorney did not provide any evidence favorable to the doctor and that if the WVOIC attorney had not acted improperly, then his own attorney had, according to the memorandum.

The Supreme Court found no merit with any of Kostenko’s arguments and upheld the Raleigh County Circuit Court’s findings.

Kostenko could not be reached for comment.

— E-mail: ppritt@register-herald.com