{"id":"alj-H303158-2025-05-01","awcc_number":"H303158","decision_date":"2025-05-01","opinion_type":"alj","claimant_name":"Timothy Johnson","employer_name":"Ark. Dept. Of Corr","title":"JOHNSON VS. ARK. DEPT. OF CORR. AWCC# H303158 May 01, 2025","outcome":"reversed","outcome_keywords":["reversed:1"],"injury_keywords":[],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Johnson_Timothy_H303158_20250501.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Johnson_Timothy_H303158_20250501.pdf","text_length":27750,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303158 \n \n \nTIMOTHY JOHNSON, EMPLOYEE CLAIMANT \n \nARK. DEPT. OF CORR., \nEMPLOYER RESPONDENT/APPELLANT \n \nPUBLIC EMPLOYEE CLAIMS DIV., \nCARRIER/TPA RESPONDENT/APPELLANT \n \nSURVIVAL FLIGHT, INC.,     INTERVENOR/APPELLEE \n \n \nOPINION FILED MAY 1, 2025 \n \nAppeal from  Medical  Cost  Containment  Division (“MCCD”)  of  the  Arkansas \nWorkers’ Compensation Commission (“AWCC”).  Submitted  on  the  record \nto Chief Administrative Law Judge O. Milton Fine II on February 25, 2025. \n \nClaimant, pro se, excused from participation. \n \nRespondents/Appellants represented  by  Mr. Robert  H.  Montgomery,  Attorney  at \nLaw, Little Rock, Arkansas. \n \nIntervenor/Appellee  represented  by  Ms. April  C.  Cotton,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the record  as  an  appeal  to \nthe  undersigned  from  the MCCD  under  AWCC  R.  099.30  Part  III(A)(3)-(4).   A \ntelephone conference took place on November 12, 2024.  The Scheduling Order \nentered that  same  day  pursuant  to  the  conference  has  been  made  part  of \nstipulated   record   (see infra)   in   this   case.      Respondents/Appellants and \nIntervenor/Appellee agreed  that  no  hearing  or  oral  argument  was  necessary.  \n\nJOHNSON – H303158 \n \n2 \n \nTherefore, the order set out a briefing schedule and provided that the parties were \nto stipulate as to the record and issues.  They did so. \nStipulations \n Through  their  joint filing  on  January 22, 2025,  the  parties have  stipulated\n1\n \nto the following: \n1. On  May  8,  2023, Respondent/Appellee Arkansas  Department  of \nCorrections (“ADC”) employee  Timothy  Johnson  (“Claimant”)  was \nthrown from a horse and suffered bodily injuries. \n2. Intervenor/Appellee Survival Flight, Inc. (“Survival Flight”) was called \nto   the   scene   by   Newport   Fire   Unit   304   to   provide   care   and \ntransportation. \n3. On the date of the injury, Survival Flight was notified of the need for \nits  services  at  approximately  7:25  a.m.,  arrived  on  scene  at  7:56 \na.m.,  and  transported  Claimant  to  St.  Bernard  Medical  Center  in \nJonesboro, Arkansas at 8:31 a.m. \n4. Survival  Flight provided  medical  care to  Claimant,  including  but  not \nlimited to the stabilizing of his injured extremity, the monitoring of his \nvitals,  and  the  administering  of  300mcg  of  fentanyl  in  multiple \nintravenous doses. \n \n \n1\nProposed Stipulation No. 12 reads:  “This matter has been assigned to \nChief Administrative Law Judge Minton O. Fine [sic].”  This is unnecessary and \nthus will not be included. \n\nJOHNSON – H303158 \n \n3 \n \n5. Survival  Flight submitted  a  bill  to  Systemedic  for  $44,130.86,  of \nwhich   $21,273.00   was   paid   by   Respondent/Appellant Public \nEmployee Claims Division (“PECD”). \n6. Survival   Flight timely   appealed   this   short   pay and   requested \nreconsideration of this decision on August 18, 2023. \n7. PECD responded  to  the  request  for  reconsideration  and  upheld  its \nprevious   decision   on   the   grounds   that   the   charges   were   not \nreasonable. \n8. MCCD  performed  a  desk  audit  on  August  31,  2023,  finding  that an \nadditional $22,188.17 was owed to Survival Flight and scheduled an \nadministrative review of the dispute of partial payment to determine \nwhether Survival  Flight was  also  owed  an  eighteen  percent  (18%) \npenalty pursuant to AWCC R. 099.30 Part I(I)(7)-(8). \n9. PECD responded to MCCD’s audit and letter and disputed that Rule \n30  applied  to Survival  Flight on  the  grounds  that Survival  Flight is \nnot a “Provider” under the rule and that its charged amount for the \nservices provided to Claimant on May 8, 2023, was not reasonable. \n10. On  April  8,  2024,  MCCD  issued  its  Administrative  Review  Order, \nwhich  included  the  following  findings:    (1) Survival  Flight is  a \nProvider  under  Rule  30;  (2)  Federal  law  did  not  preempt  the \nauthority of MCCD to set the reimbursement rates for air ambulance \n\nJOHNSON – H303158 \n \n4 \n \ncompanies  operating  in  Arkansas;  (3)  the  annual  survey  performed \nby  MCCD  was  sufficient  to  determine  the  allowable  rates  for  air \nambulance  providers;  and  (4)  the  amount  ordered  to  be  paid  to \nSurvival Flight by PECD was reasonable. \n11. PECD  filed a  notice  of  appeal  on  May  24,  2024,  in  which  they \nappealed the above findings/conclusions by MCCD. \nIssues \n In  their  January  22,  2025,  filing,  the  parties  listed  Issues  2-7 infra as  the \nquestions to be presented to the undersigned on appeal.  Survival Flight has led \noff its brief, however, with a preliminary argument not covered under one of those \nquestions.  But Ark. Code Ann. 11-9-705(a)(1) (Repl. 2012) provides: \nIn  making  an  investigation  or  inquiry  or  conducting  a  hearing,  the \nWorkers’  Compensation  Commission  shall  not  be  bound  by \ntechnical  or  statutory  rules  of  evidence  or  by  technical  or  statutory \nrules  of  procedure,  except  as  provided  by  this  chapter,  but  may \nmake  such  investigation  or  inquiry,  or  conduct  the  hearing,  in  a \nmanner that will best ascertain the rights of the parties. \n \nI  find  that  this  provision grants  me  the  latitude  to address  this.    That  said,  the \nfollowing issues are hereby presented for determination: \n1. Whether  the  instant  appeal  is  timely  under  AWCC  R.  099.30 Part \nIII(A)(3). \n2. Whether  the  decisions  of  the  former  administrator  of  MCCD,  dated \nApril 5, 2024, and May 8, 2024, properly applied the law to the facts \nof this case. \n\nJOHNSON – H303158 \n \n5 \n \n3. Whether  the  decisions  of  the  former  administrator  of  MCCD,  dated \nApril 5, 2024, and May 8, 2024, should be affirmed or reversed. \n4. Whether AWCC has jurisdiction to settle this dispute. \n5. Whether AWCC’s authority in this area is preempted by federal law. \n6. Whether Survival Flight is a “Provider” under AWCC R. 099.30 Part \nI(F)(58). \n7. Whether  the  total  amount  billed  by Survival  Flight for  transporting \nClaimant  on  May  8,  2023,  is  reasonable  under  Arkansas  workers' \ncompensation law. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. Stipulations Nos.  1-11, supra, are  reasonable  and  are  hereby \naccepted. \n3. This appeal is timely under AWCC R. 099.30 Part III(A)(3). \n4. The actions taken by the former MCCD Administrator in the April 5, \n2024, Administrative Review Order and May 8, 2024, Administrative \n\nJOHNSON – H303158 \n \n6 \n \nReview  Reconsideration  Order concerning Survival Flight’s bill for \nair  ambulance  services  furnished  Claimant  on  May  8,  2023,  along \nwith PECD’s responsibility for said bill, are preempted by 49 U.S.C. \n§ 41713(b)(1). \n5. The former MCCD  Administrator’s  April  5,  2024,  Administrative \nReview    Order    and    May    8,    2024,    Administrative    Review \nReconsideration Order are hereby reversed. \n6. Because   of   Findings/Conclusions   Nos.   4   and   5, supra,   the \nremaining issues are moot and will not be addressed. \nIII.  RECORD ON APPEAL \n The  appellate  record  consists  of  the  following:    the  four-page  Notice  of \nAppeal  filed  by  Respondents/Appellants  on  May  24,  2024,  with  an  attachment \nthereto captioned “Respondent[s’] Documentary Exhibit,” consisting of a one-page \nindex  and  53  numbered  pages  thereafter;  the  four-page  pleading  captioned \n“Stipulated Record and Questions Presented,” filed on January 22, 2025; the 13-\npage   brief   of   Respondents/Appellants   filed   on   January   22,   2025,   with   six \nexhibits/attachments  thereto  totaling  79  pages;  and  the  seven-page  brief  of \nIntervenor/Appellee  filed  on  February  27,  2025.    These  documents  have  been \nblue-backed as the appellate record and, pursuant to Sapp v. Tyson Foods, Inc., \n2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, have been served on the parties in \nconjunction with this opinion. \n\nJOHNSON – H303158 \n \n7 \n \nIV.  PROCEDURAL HISTORY \n On  May  8,  2023,  Claimant,  an  employee  of  Respondent/Appellant ADC, \nwas injured at work when he was thrown from a horse.  The local fire department \nthat  initially  treated  Claimant  summoned  Survival  Flight  to  the  scene,  which \ntransported  him  by  helicopter  from  Newport,  Jackson  County,  Arkansas,  to a \nhospital  in Jonesboro,  Craighead  County,  Arkansas.    The  services  furnished  by \nSurvival  Flight  to  Claimant  consisted  not  only  of  the  transportation,  but  medical \nservices  including the  stabilizing  of  his  injured  extremity,  the  monitoring  of  his \nvitals, and the administering of 300mcg of fentanyl in multiple intravenous doses. \n For  the  foregoing,  Survival  Flight  submitted  a  bill  for  $44,130.86.    PECD \ninstead  paid  $21,273.00—which  it has represented  constituted  three  times  the \napplicable Medicare reimbursement rate—on the recommendation of Systemedic, \nits  bill  review  company.    In  response  to  this,  Survival  Flight  on August  18,  2023, \nfiled a timely appeal to MCCD of this short pay and requested reconsideration of \nthis.  PECD responded to the request for reconsideration by affirming its previous \ndecision on the basis that the charges were not reasonable. \n The  next  stage  of  this  case  began  on  August  31,  2023,  when MCCD \nconducted a desk audit\n2\n in which it found that an additional $22,188.17 was owed \nto  Survival  Flight.    MCCD scheduled  an  administrative  review  of  the  partial \n \n \n2\nThe undersigned has not been tasked with determining whether the desk \naudit itself was appropriate—whether under 29 U.S.C. § 41713(b)(1) or otherwise.  \nSee supra.  For that reason, its appropriateness will not be addressed. \n\nJOHNSON – H303158 \n \n8 \n \npayment dispute to   determine   whether Respondents/Appellants   should   be \nassessed an eighteen percent (18%) penalty under AWCC R. 099.30 Part I(I)(7)-\n(8) for  the  partial  payment.   PECD objected  to  these  actions  by MCCD on \nSeptember  28,  2023,  arguing,  inter  alia, that MCCD’s review was inappropriate \nbecause (a) under the Airline Deregulation Act (“ADA”), 49 U.S.C. § 41713(b)(1), \nstates are preempted from regulating prices charged by an air ambulance service; \nand  (b) Survival  Flight is not a “Provider” under Rule  30;  (c) the amount  that \nSurvival  Flight charged  was  not  reasonable.  Rejecting  these  contentions,  the \nthen-Administrator of MCCD (the “former Administrator”) issued an Administrative \nReview  Order  on  April  5,  2024.    Therein,  she found  that  Survival  Flight  is  a \n“provider”  under  AWCC  R.  099.30 Part I(F)(58)  because  during  his  flight  to \nJonesboro,  Claimant  “received  medical  care  from  practitioners”:    namely,  a \nregistered nurse and a paramedic.  In addition, she held “that the ADA and 49 \nU.S.C. § 41713 do not preempt the AWCC’s authority to set the reimbursement \nrate for air ambulance services . . . .”  Finally, the  former Administrator again \nfound that Survival  Flight  was  entitled  to  an  additional  $21,273.00, basing  the \ndecision  on MCCD’s method  of  determining  reasonable  ambulance  rates  by \nconducting  annual  surveys  of  Arkansas emergency  medical  services  (“EMS”) \nproviders  concerning  their  charges  in  the  state  for  each  Healthcare  Common \nProcedure Coding System (“HCPCS”) code (the codes billed by Survival Flight in \nthe  instant  case  were  one  unit  of  A0431  and  31  units  of  A0436—see  more  fully \n\nJOHNSON – H303158 \n \n9 \n \ninfra)  and  determining  the  averages  charged  for  each  code.  In  making  this  final \nfinding, the  former Administrator  ruled  that  this  annual  survey  method  was \nsufficient. \n PECD  filed  a  timely  request  for  MCCD  to  reconsider  its  April  5,  2024, \nAdministrative Review Order, arguing:  (1) Survival Flight is not a “provider” under \nRule 30; (2) MCCD’s authority to regulate air ambulance rates in the State of \nArkansas    is    preempted    by    the    ADA;    and    (3)    the    bill    submitted    by \nIntervenor/Appellee in this case was “wildly excessive,” and MCCD’s method of \ndetermining  “reasonable”  air  ambulance  rates  in  Arkansas—by  surveying  air \nambulance   companies—is   facially   unfair.      In   an Administrative   Review \nReconsideration Order  entered  on  May  8,  2024, the  former Administrator  denied \nthe request for a rehearing. \n PECD  filed  a  notice  of  appeal  on  May  24,  2024,  appealing the foregoing \nfindings/conclusions  by  MCCD as  contained  in  the  Administrative  Review  Order \nand Administrative Review Reconsideration Order. \nV.  DISCUSSION \nA. Timeliness of Appeal \n AWCC R. 099.30 Part III(A)(3) reads: \nAny   party   feeling   aggrieved   by   the   rehearing   order   of   the \nAdministrator   shall   have ten   (10)   days   from   the   date   of \nnotification to  appeal  the  ruling  to an  Administrative  Law  Judge  of \nthe  Arkansas  Workers’  Compensation  Commission.  Notice   of \nappeal  shall  be  filed  with  the  Clerk  of  the  Arkansas  Workers’ \nCompensation Commission. \n\nJOHNSON – H303158 \n \n10 \n \n \n(Emphasis  added)   At  the  outset,  Survival  Flight has  argued  that  the  Notice  of \nAppeal  filed  by PECD was  untimely.   The  evidence  at  bar  shows  that the \nAdministrative  Review  Reconsideration  Order  was purportedly sent  to  PECD  by \ncertified  mail  the  same  day  as  its  issuance—May  8,  2024—per  the  enclosure \nletter  that  accompanied  it.    But  this  was  not  the  case;  the  copy  of  the  envelope \nthat contained the letter and order itself show that not only was the order only sent \nvia  first-class  mail,  but  that  it  was  not  done  so  until  May  17,  2024.    Moreover, \nPECD  stamped  the  envelope  and  enclosure  letter  as  having  been  received  by  it \non May 21, 2024.  The undersigned hereby finds that PECD received both these \nitems as well as the order itself—which bears no date stamp—on May 21, 2024.  \nThe “date of notification” referenced above was thus May  21,  2024,  making  the \n10-day  deadline  for  the  filing  of  a  notice  of  appeal  May  31,  2024.    Therefore, \nPECD’s Notice of Appeal, filed on May 24, 2024, was clearly timely. \nB. Preemption \n Through   the   ADA,  enacted  in  1978,  Congress  sought  “to  promote \n‘efficiency, innovation, and low prices’ in the airline industry through ‘maximum \nreliance on competitive market forces and on actual and potential competition.’”  \nNw.,  Inc.  v.  Ginsberg,  572  U.S.  273,  280 (2014); Ferrell  v.  Air  EVAC EMS,  Inc., \n900  F3d  602  (8\nth\n Cir.  2018)(quoting  49  U.S.C. §§ 40101(a)(6),  12(A)).   This \nlegislation contains a provision—found at 49 U.S.C. § 41713(b)(1)—that reads: \n\nJOHNSON – H303158 \n \n11 \n \nPREEMPTION.   Except  as  provided  in  this  subsection,  a  State, \npolitical  subdivision  of  a  State,  or  political  authority  of  at  least  2 \nStates   may   not   enact   or   enforce   a   law,   regulation,   or   other \nprovision having the force and effect of law related to a price, route, \nor service of an air carrier that may provide air transportation under \nthis subpart. \n \nPer the Supreme Court, this provision was added “in  order  to ‘ensure  that  the \nStates   would   not   undo   federal   deregulation   with   regulation   of   their   own.’”  \nGinsberg, 572 U.S. at 280 (quoting Morales v. Trans World Airlines, Inc., 504 U.S. \n374, 378 (1992)). \n The evidence shows that Survival Flight is an air ambulance provider.  As \nsuch, it is an “air carrier” under 49 U.S.C. § 40102(a)(2).   In Ferrell, supra,  the \nEighth Circuit Court of Appeals was called upon to determine if a passenger’s \nputative   class   action   against   an   air   ambulance   provider,   originally   filed   in \nArkansas state  court  before  being  removed  to  federal  court, involved  claims  that \nwere  preempted  by  the  ADA  provision  in  question.    The  plaintiff/appellant  took \nissue with the fact that that Air EVAC EMS, Inc. (“Air EVAC”), the air ambulance \nprovider,  billed  him  $30,083.26  for  a  41-mile  transport  by  helicopter  from  one \nhospital to another.  His health insurer only paid $1,000.00 of the bill, leaving him \nowing the balance thereof.  Three causes of action were raised:  (1) a declaratory \njudgment   that   any   contract   between   Air   EVAC   and   class   members   was \nunenforceable  because  it  lacked  an  essential  price  term;  (2)  damages  under  the \nArkansas Deceptive Trade Practices Act, Ark. Code Ann. §§ 4-88-101 et. seq., for \nhiding or not disclosing the price for the flight until after it was completed; and (3) \n\nJOHNSON – H303158 \n \n12 \n \na  declaratory  judgement  that  Air  EVAC  could not  seek  restitution  against  class \nmember because it had “unclean hands.”  The federal district court found that all \nthree of these claims were preempted under the ADA, holding that not only were \nthey “related  to  a  price,  route,  or  service  of  an  air  carrier  that  may  provide  air \ntransportation” (the language in the preemption provision), but they were “in the \nheartland of price.”  Ferrell,  900  F.3d  at  606.    The  Eighth  Circuit  affirmed  the \nholding  of  the  district  court,  finding  all  three  causes  of  action  to  be  preempted.\n3\n  \nId. \n In  so  doing,  the appellate  court in Ferrell found  that  while  all  three  claims \nwere preempted, the one that was most obviously so was (2) above, which deals \nwith the Arkansas Deceptive Trade Practices Act.  The court wrote that “[t]his \nclaim  seeks  to  impose  a  state  statutory  price  disclosure  obligation  beyond  the \nscope  of  any  agreement  Air  EVAC  had  with  Ferrell.    It  obviously  relates  to  Air \nEVAC’s price and service.”  Ferrell, 900  F.3d  at  606.    In  the  matter  at  hand, \nMCCD  was  regulating  the price  that  Survival  Flight,  an  air  carrier, may charge—\nand  that  PECD  must  pay—for  a  particular  air  ambulance  service.    Nothing, \nfrankly, could be more “in the heartland of price” than that.  It is thus clear that \nMCCD was preempted from the actions it took in the April 5, 2024, Administrative \n \n \n3\nOther  circuits  have  reached  similar  results.   See,  e.g.,  Air  EVAC  EMS, \nInc., v. Sullivan, 8 F.4\nth\n 346 (5\nth\n Cir. 2021); Scarlett v. Air Methods Corp., 922 F.3d \n1053  (10\nth\n Cir.  2019); Air  EVAC  EMS,  Inc.,  v.  Cheatham,  910  F.3d  751  (4\nth\n Cir. \n2018); Bailey v. Rocky Mtn. Holdings LLC, 889 F.3d 1259 (11\nth\n Cir. 2018). \n\nJOHNSON – H303158 \n \n13 \n \nReview  Order and  May  8,  2024,  Administrative  Review  Reconsideration  Order, \npurportedly under the authority of AWCC R. 099.30. \n In making  this holding, the  undersigned notes that MCCD employed  the \nfollowing analyses in rejecting the preemption argument by PECD: \nThe  Administrator  also  finds  that  the  ADA  and  49  U.S.C. § 41719 \ndo not preempt the AWCC’s authority to set the reimbursement rate \nfor  air  ambulance  services  and  the  provider  is  due  reimbursement \nof  a  reasonable  amount  as  determined  by  the  AWCC.    Congress \nenacted  the  ADA  with  the  intention  that  it  would  regulate  the \nservices and airfares of airlines that provided scheduled passenger \nflights.  Such services include boarding, seating, and ticketing.  The \nADA  includes  a  pre-emption  provision,  codified  at  49  U.S.C. § \n41713, that says “a State . . . may not enact or enforce a law, \nregulation, or other provision . . . related to a price, route, or service \nof an air carrier . . . . \n \nEven if an air ambulance falls under the definition of “air carrier,” \nthe   regulation   of   reimbursement   rates   by   the   AWCC for   the \nservices of an air ambulance is “too tenuous, remote, or peripheral” \nto  the  original  intent  of  the  ADA  for  it  to  have  a  preemptive  effect.  \nSee  Morales.  It is clear that the ADA’s preemption provision was \nnot   intended   to   apply   to   air   ambulance   services.      The   air \nambulance  market  is  unlike  any  other  in  that  air  medical  patients \nhave no  control  over  the  choice of  transport  mode or  provider  and \nlittle influence on air ambulance markets. \n \nIn Ferrell, supra, a similar argument was raised before the Eighth Circuit: \nAcknowledging  that  common  law  fraud  and  statutory  consumer \nprotection   claims   were   preempted   in Morales and Wolens \n[American Airlines v. Wolens, 513 U.S. 219 (1995)], Ferrell argues \nthat  these  decisions  should  not  apply  to  the  unique  air-ambulance \nmarket.  He  asserts  that,  because  air-ambulance  providers  do  not \nface meaningful price competition and patients often do not control \nwhether  to  be  transported  by  an  air  ambulance,  applying  the  ADA \nto  these  fraud  claims  would  entrench  an  anti-competitive  market, \nnot   further   the   ADA's   purpose   of   promoting   efficiency   and \ncompetition.  But where  a  federal  statute  contains  an  express \n\nJOHNSON – H303158 \n \n14 \n \npreemption provision, we “focus on the plain wording of the clause, \nwhich  necessarily  contains  the  best  evidence  of  Congress’ pre-\nemptive  intent.”  Puerto  Rico  v.  Frankline  Cal.  Tax-Free  Tr.,  136 \nS.Ct.  1938,  1946,  195  L.Ed.  2d  298  (2016) (quotation  omitted).  \nHere,  the  ADA  preempts  state  law “related  to  a  price,  route,  or \nservice  of  an  air  carrier  that  may  provide  air  transportation  under \nthis subpart.”  49 U.S.C. § 41713(b)(1).  An air-ambulance operator \nsuch as Air EVAC is an “air carrier.”  See 49 U.S.C. § 40102(a)(2); \nWatson [v. Air Methods Corp., 870 F.3d [812, 814]; Schneberger v. \nAir  EVAC  EMS,  Inc.,  No. Civ-16-843-R,  2017  U.S.  Dist.  LEXIS \n36701,  2017  WL 1026012,  at  *2  &  n.3  (W.D.  Okla.  Mar. 15,  2017) \n(collecting authorities). \n \n“[W]hen the statute's language is plain, our inquiry into preemption \nboth begins  and  ends  with  the  language  of  the  statute  itself.”  \nEagleMed LLC v. Cox, 868 F.3d 893, 903 (10\nth\n Cir. 2017).  We may \nnot  refuse  to  apply  ADA  preemption  merely  because  we  do  not \nbelieve  it  would  be  sound  public  policy  to  enforce  the  statute \nCongress enacted. \n \n In Morales, supra, cited by the former Administrator above in overruling the \npreemption argument, the Supreme Court wrote: \nIn  concluding  that  the  NAAG [National  Association  of  Attorneys \nGeneral] fare advertising guidelines are pre-empted, we do not, as \nTexas  contends,  set  out  on  a  road  that  leads  to  pre-emption  of \nstate  laws  against  gambling  and  prostitution  as  applied to  airlines.  \nNor  need  we  address  whether  state  regulation  of  the  nonprice \naspects  of  fare  advertising  (for  example,  state  laws  preventing \nobscene depictions) would similarly “relate to” rates; the connection \nwould  obviously  be  far  more  tenuous.  To  adapt  to  this  case  our \nlanguage  in Shaw [v.  Delta  Airlines,  463  U.S.  85  (1983)], “some \nstate  actions  may  affect  [airline  fares]  in  too  tenuous,  remote,  or \nperipheral a manner” to have pre-emptive effect.  463 U.S. at 100, \nn.21.   In  this  case,  as  in Shaw, “the  present  litigation  plainly  does \nnot present a borderline question,  and  we express  no  views  about \nwhere it would be appropriate to draw the line.” \n \n Similarly,  the  present  matter  “plainly  does  not  present  a  borderline \nquestion.”  This is not something “tenuous, remote, or peripheral” to  the fares \n\nJOHNSON – H303158 \n \n15 \n \ncharged by an air ambulance provider—an air carrier providing air transportation, \nper the ADA preemption provision—like the examples given above by the Morales \nCourt.   The  former Administrator  explained in  detail the actions that  were being \ntaken by MCCD here: \nThe   AWCC   Medical   Fee   Schedule   contains   no   maximum \nallowances  for  ambulance  services.    Unlisted  medical  services  for \ninjured   Arkansas workers   are   to   be   reimbursed   reasonable \namounts  as  determined  by  the  AWCC.    Thus,  the  dispute  in  this \ncase    centers    on    determining    the    reasonable    amount    of \nreimbursement for the provider’s ambulance services provided to \nthe claimant on May 8, 2023. \n \nMCCD  determines  the  reasonableness  of  its  allowable  ambulance \nrates  by  conducting  annual  surveys  of  Arkansas  EMS  providers \nand basing its allowable rates on the average charges in the state \nfor  each  respective  HCPCS  code.    These  surveys  are  conducted \non  both  air  and  ground  ambulance  providers  and  the  allowable \nrates are segregated by air or ground. \n \nThe  survey  conducted  by  MCCD  shows  that  the  average  rate  for \nA0431 in May 2023 was $35,169.69 per unit.  AWCC Rule 099.30 \nprovides  that  when  an  AWCC  allowable  fee  is  greater  than  the \namount actually billed, the service shall be reimbursed at the lesser \nof  the  two  amounts.    In  this  case,  HCPCS  A0431  was  billed  at  a \nrate  of  $34,500.00,  which  is  lower  than  the  allowable  rate.    The \nAdministrator   finds   the   rate   of   $34,500.00   is   the   reasonable \nreimbursement amount for A0431 in this case.  Survey results also \nshow that the average charge for A0436 in May 2023 was $289.07 \nper   mile.      Therefore,   the   Administrator   finds   this   rate   is   the \nreasonable reimbursement amount for A0436 in this case. \n \n MCCD   determined   what   could   be   billed   for   HCPCS   codes   A0431 \n(“Ambulance service, conventional air services, transport, one way (rotary wing)”) \nand A0436 (“Rotary wing air mileage, per statute mile”) and the amounts for which \nPECD was responsible.  To repeat, this is “in the heartland of price” under Ferrell, \n\nJOHNSON – H303158 \n \n16 \n \nsupra.   The  actions  taken here by  the  former  Administrator  in  the  Administrative \nReview Order and Administrative Review Reconsideration Order on these matters \nconstitute the “undo[ing  of] federal deregulation with regulation of their own” that \nthe  Supreme  Court  in Morales and Ginsberg, supra,  warned  was  impermissible \nunder  the  ADA’s  preemption  provision.  For   the foregoing reasons, the \nundersigned is compelled to reverse these two orders. \nC. Remaining Issues \n Because  of  the  above  finding  regarding  preemption,  the  remaining  issues \nare moot\n4\n and will not be addressed. \nVI.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, the Administrator’s April 5, 2024, Administrative Review Order and May 8, \n2024, Administrative Review Reconsideration Order are hereby reversed. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n4\nIn Ferrell, supra, the Eighth Circuit explained what option(s) might remain \nfor  an  aggrieved  party  in  a  transaction  such  as  the  one  at  bar  to  get  their \ngrievance(s)  redressed,  including  perhaps an  action  for  breach  of  contract.    900 \nF.3d  at  608-10.    However,  such  cause(s)  of  action  are  outside  the scope  of  this \nappellate review and, consequently, will not be addressed herein.","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303158 TIMOTHY JOHNSON, EMPLOYEE CLAIMANT ARK. DEPT. OF CORR., EMPLOYER RESPONDENT/APPELLANT PUBLIC EMPLOYEE CLAIMS DIV., CARRIER/TPA RESPONDENT/APPELLANT SURVIVAL FLIGHT, INC., INTERVENOR/APPELLEE OPINION FILED MAY 1, 2025 Appeal from Medical Cost Containme...","fetched_at":"2026-05-19T22:40:12.787Z","links":{"html":"/opinions/alj-H303158-2025-05-01","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Johnson_Timothy_H303158_20250501.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}