Opinion
W.C. No. 3-966-319.
June 29, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated January 30, 2009, that denied the claimant's request for attorney fees. We affirm.
This case has a protracted procedural history, but we cite only the following facts made by the ALJ that appear necessary to resolve the present dispute. The claimant sustained a compensable injury and the respondents admitted the claimant was permanently and totally disabled. Dr. Hall provided medical treatment to the claimant on a continuing basis since 1996. The respondents requested a medical utilization review (MUR). The claimant argued before the Director of the Division of Workers' Compensation (Director) that the entire MUR physician panel should be disqualified due to conflicts of interest. The Director in an order dated September 4, 2007 found that there was no statutory or legal basis for granting the relief requested by the claimant and ordered the MUR to proceed. The MUR committee unanimously found that the care of Dr. Hall was not reasonably appropriate according to accepted professional standards. The MUR committee unanimously found that Dr. Hall should not continue to treat the claimant. The Director issued a Utilization Review Order dated February 15, 2008 and found that a change of provider should be ordered. ALJ Krumreich in an order dated September 2, 2008 found that the claimant had failed to overcome, by clear and convincing evidence, the MUR panel's findings and the Director's order directing a change in provider. On January 20, 2009, we affirmed ALJ Krumreich's order, the claimant appealed and the matter is now on appeal before the Colorado Court of Appeals.
In his February 15, 2008 order for a change of provider the Director stated that every effort should be made to explore the possibility of an interdisciplinary rehabilitation program. The parties did not reach agreement on a new provider. A representative of the Director notified the parties on May 21, 2008 that the Director had been unsuccessful in finding three physicians willing to take over the claimant's care and only Dr. Struck was willing to treat. The representative of the Director informed the respondents that they could choose Dr. Struck, the parties could try again to agree upon a new provider or the parties could make other suggestions about how to provide a new physician for the claimant. On May 29, 2008 the respondents agreed to Dr. Struck and the Director's representative notified the parties that the respondents had selected Dr. Struck. The insurer set an appointment for the claimant with Dr. Struck. Dr. Struck reported that the claimant had not completed the required new patient paperwork and had told her office staff that he did not wish to switch physicians. Therefore, Dr. Struck declined to accept the claimant as a patient. The respondents requested that the Director locate a new authorized treating physician as they wished to be prepared with an authorized treating physician to resume care as soon as the appeal was completed. The Director's representative indicated that it was inappropriate for the Director to provide an additional list of physicians pursuant to the MUR process because a new provider had been identified by the Director. The Director's representative advised that issues such as whether the claimant was refusing to submit to an examination or whether the doctor was refusing to treat due to non-medical reasons were outside the MUR process and "may be best addressed by an administrative law judge." The claimant's attorney wrote the Director requesting him to reconsider the letter from his representative. The Director wrote back that the MUR process ended once a new physician was designated and because a new physician had been designated there was nothing further for the Director to do pursuant to the statute.
While the claimant's appeal to the Colorado Court of Appeals on the MUR panel's findings was pending, the respondents applied for a hearing stating: "This application is filed so that when all appeals are exhausted and if the MUR is affirmed, a new ATP will be ready to resume care. Respondents are seeking order from ALJ regarding new ATP." In response to the respondents' application for hearing the claimant asked for attorney fees pursuant to § 8-43-211(2)(d), C.R.S. 2008, which permits the recovery of fees against a party who files an application for hearing on any issue not yet ripe for consideration.
The ALJ, without taking any testimony, denied the request for fees under § 8-43-211(2)(d). We note that it is not clear whether at the hearing exhibits were received into evidence. However, both parties have referred to the exhibits and no objections have been made to consideration of the exhibits. The claimant then brought this appeal challenging that part of the ALJ's order which denied fees under § 8-43-211(2)(d). The claimant contends that he is entitled to the fees and costs mandated under § 8-43-211(2)(d) because the issue on which the respondents requested a hearing was not ripe for consideration during the pendency of the appeal of the Director's order of change of physician pursuant to the MUR. We are not persuaded to interfere with the AL's order.
I.
The claimant argues that the ALJ erred in failing to award attorney fees as permitted by § 8-43-211(1)(d) C.R.S. 2008 based upon the respondents' violation of § 8-43-501(2)(e). We disagree.
We first note that § 8-43-211(2)(d) provides as follows:
If any person requests a hearing or files a notice to set a hearing on issues which are not ripe for adjudication at the time such request or filing is made, such person shall be assessed the reasonable attorney fees and costs of the opposing party in preparing for such hearing or setting.
It is provided in § 8-43-501(2)(e):
When an insurer, self-insured employer, or claimant requests utilization review, no other party shall request a hearing pursuant to section 8-43-207 until the utilization review proceedings have become final, if such hearing request concerns issues about a change of physician or whether treatment is medically necessary and appropriate.
The claimant's appeal contends that the ALJ failed to award attorney fees as permitted by § 8-43-211(1)(d), not for failure of the ALJ to impose penalties under § 8-43-304(1) C.R.S. 2008 for any alleged violation of a statute contained in the Workers' Compensation Act. Consequently if the respondents violated 8-43-501(2)(e) it might give rise to penalties under § 8-43-304(1), but would not give rise to an award of attorney fees under § 8-43-211(1)(d). Therefore, we are not persuaded that the ALJ erred in failing to award attorney fees.
Moreover, to the extent that § 8-43-501(2)(e) might be perceived as a legal impediment to immediate adjudication by the respondents, we agree with the ALJ that contrary to the claimant's argument the prohibition in § 8-43-501(2)(e) against requesting a hearing concerning a change of physician does not apply here because the MUR proceedings became final once the Director selected Dr. Struck.
Here, the Director ordered a change of provider pursuant to the MUR procedure and after the parties failed to agree upon a new provider, offered to the respondents as the successful party on review the name of Dr. Struck as the new treating provider. Exhibit K. The action by the Director is consistent with W.C. Rule of Procedure 10-8(A), 7 Code Colo. Reg. 1101-3 (2008) that provides if the Director orders a change of provider the parties shall follow the procedures set forth in § 8-43-501(4) in order to obtain a new provider and then notify the Division as to whether the parties have agreed upon a new provider or whether the Director shall select the new provider. The action of the Director is also consistent with § 8-43-501(4) C.R.S. 2008 that provides as follows:
If the director orders pursuant to subsection (3) of this section that a change of provider be made in a case or that the physician's accreditation status be revoked, the claimant, insurer, or self-insured employer shall have seven days from receipt of the director's order in which to agree upon a level I provider. If the claimant, insurer, or self-insured employer can not reach agreement within the seven day time period, the director shall select three providers. A new provider shall be chosen from the three providers so selected by the party who was successful in the request for review. If no appeal is filed, the successful party shall notify the division of the name of the new provider within seven days of the selection of the three potential providers. If the new health care provider is not selected within such seven days, the director shall select the provider.
The respondents accepted Dr. Struck as the new treating provider. However, difficulties arose. A representative of the Director later sent a letter to the parties noting that the claimant had apparently not provided necessary documentation to Dr. Struck but that it would be inappropriate for the Director to provide an additional list of physicians under the MUR process. Exhibit Q. The Director in a follow up letter pointed out that the MUR process ended once the Division had designated the new physician. Exhibit S.
Here, as noted above the Director believed the Division's involvement with the MUR process was completed. We note that the regulatory interpretations of the Director are generally entitled to a degree of deference. See Rook v. Industrial Claim Appeals Office, 111 P.3d 549 (Colo.App. 2005) (deference is afforded to statutory interpretation of Director as official charged with enforcement of the Act); see also Lenox v. United Airlines, W.C. No. 4-616-469 (June 2, 2006) (affording "great weight" to Director's interpretive bulletin on AMA Guides). We see no reason to disagree with the Director that the MUR Process was completed.
Of course, the claimant's appeal of ALJ Krumreich's order finding that the claimant had failed to overcome, by clear and convincing evidence, the MUR panel's findings and the Director's order directing a change in provider continues through the normal appellate procedures even though the MUR process is complete. However, the claimant has not offered nor are we aware of any authority indicating that the Director erred in his interpretation of the statute and rules relating to the MUR process and determining that the MUR process itself was completed.
Further, § 8-43-501(2)(e) was enacted in 1994. 1994 Colo. Sess. Laws, ch. 346 at 2818-19. Before that time, jurisdiction to consider the propriety of medical treatment was evenly divided between ALJs and the MUR process and problems associated with forum shopping and dual jurisdiction were possible. See § 8-43-201, C.R.S. 1997; Deyle v. Prowers Medical Center, W. C. No. 4-185-255 (June 23, 1997), aff'd Prowers Medical Center v. Deyle, No. 97CA1205 (Colo.App. February 5, 1998) (not selected for publication). Section 8-43-501(2)(e), as noted by the Panel and affirmed by the Colorado Court of Appeals in Deyle, represents the General Assembly's attempt to solve these problems by prohibiting ALJs from taking jurisdiction of the specified medical issues once the MUR process has been initiated by the filing of a request for MUR.
Here, the application for hearing by the respondents presented no problem of forum shopping or dual jurisdiction because the Director had specifically determined that the Division's involvement with the MUR process was completed. Further the Director's representative had recommended that issues such as whether the claimant was refusing to submit to an examination or whether the doctor was refusing to treat due to non-medical reasons were outside the utilization review process and might be best addressed by an administrative law judge. Consequently, in our opinion the ALJ did not err in determining that the prohibition in § 8-43-501(2)(e) against requesting a hearing concerning a change of physician did not apply here.
II.
The claimant contends that the application for hearing filed by the respondents makes it clear that the intended hearing issue was to put in place an authorized treating physician when all appeals are exhausted and if the MUR order is confirmed. The claimant argues that on its face the issue set forth in the application for hearing is not ripe for determination because it is dependent upon a contingency that the MUR order would be confirmed. Therefore, the claimant concludes that by filing this application for hearing the respondents have subjected themselves to imposition of attorney fees. We conclude otherwise.
The term "ripe for adjudication" is not defined by the statute. However, we should interpret the phrase to give effect to the legislative intent. The best indicator of legislative intent is the language of the statute, and we should give the words their plain and ordinary meanings. Further, we should interpret the statute so as to give consistent and harmonious effect to all its parts. See Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo.App. 2002). The plain language of the statute reflects the General Assembly's intent to sanction parties who invoke the administrative adjudication process, thereby imposing expense on opposing parties, before an issue is legally postured for an order. Morrow v. J.J. Maintenance, W. C. No. 4-561-243 (August 12, 2005). Such an interpretation is consistent with the legislative declaration which calls for the quick and efficient delivery of benefits, at a reasonable cost to employers, "without the necessity of any litigation." Section 8-40-102(1), C.R.S. 2008.
We note that the claimant has not argued here that even if just one of the issues set for hearing is not ripe that attorney's fees can be imposed. Rather the claimant approaches the matter as if the hearing could only be viewed as involving one issue. The claimant contends that the ALJ abused his discretion by attempting to reframe the issue as whether the designed treating physician had refused to treat the claimant due to non-medical reasons. We are not persuaded that the ALJ committed error in identifying the issues that were before him.
Here the application stated "that when all appeals are exhausted and if the MUR is affirmed, a new ATP will be ready to resume care." However, the application also stated that the "Respondents are seeking order from ALJ regarding new ATP." Further, at the commencement of the hearing the ALJ requested the parties to identify the disputed issues. There followed a lengthy discussion of the status of the case and what the issues were. At the end of the hearing, the ALJ determined there was an issue about whether Dr. Struck declined to treat for a non-medical reason that was ripe for adjudication, although he found Dr. Struck's letter was unambiguous. Tr. at 40. In our opinion, this is consistent with the stated issue in the application of "seeking an order from ALJ regarding new ATP" and the comments of counsel for the respondent at the inception of the hearing. Tr. at 5-6, 16, 20, 29.
We note that if an authorized treating physician refuses to treat the claimant for non-medical reasons, and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff'd, Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication). This was implicitly recognized by the representative of the Director when he suggested that whether the doctor was refusing to treat due to non-medical reasons was outside the utilization review process and might be best addressed by an administrative law judge. Further, before the hearing, discovery was conducted on this issue. In response to interrogatories, the claimant had stated that he had not refused treatment with Dr. Struck. Exhibit X at 141. Further, in discovery responses the claimant alleged that the insurer had failed in its obligation to provide medical care under the Workers' Compensation Act by its failure to identify and authorize a treating physician. Exhibit X at 142. Therefore, the claimant in discovery alleged the choice of treating physician had passed to him. Exhibit X at 142. Finally, we note that the respondents were prepared to present the testimony of Dr. Struck that the claimant sabotaged the effort to provide medical treatment. Tr. at 27. Despite the claimant's arguments to the contrary we cannot say that the ALJ erred in identifying whether Dr. Struck declined to treat for a non-medical reason as being an issue for hearing by the respondents in their application for hearing and in the discussion of the issues at the commencement of the hearing. Tr. at 7-8.
III.
We recognize that the claimant can elect under W.C. Rule of Procedure 10-8(B), 7 Code Colo. Reg. 1101-3 (2008) to remain under the care of Dr. Hall and face the possibility that if the insurer prevailed on appeal, that he might be held liable for medical costs paid during the appeal period. As part of the Utilization Review Process Rule 10-8(B) provides that if a change of medical provider is ordered:
(B) If the claimant chooses to remain under the care of the provider under review during the period of appeal resolution, the payor shall be responsible for payment of medical bills to the provider until an order on appeal is issued. If the insurance carrier, employer or self-insured employer prevails on appeal, the claimant may be held liable by the prevailing party for such medical costs paid during the appeal period.
We further acknowledge that the ALJ in one part of his order found that the claimant intended to continue to obtain treatment from Dr. Hall and would not participate in selecting a new physician and there is record support for this finding. Exhibit 31. Applying Rule 10-8(B) to the circumstances here, as a practical matter it would appear unnecessary for the respondents to need a hearing to determine an authorized treating physician when the claimant had elected to remain under the care of the provider under review during the period of appeal resolution. Hence, a request for a hearing in case the MUR was affirmed and when all appeals were exhausted that a new treating physician will be ready to resume care would appear to request adjudication of an issue before it had become ripe for determination.
However, here it does not appear that the claimant had simply and clearly stated that he exercised his right under Rule 10-8 to remain under the care of Dr. Hall and would accept no other treatment despite the Director's order to change provider. To the contrary, as noted previously, the claimant in discovery made statements contending that the insurer had failed in its obligation to provide medical care and the choice of treating physician had passed to him. Therefore, although the ALJ eventually did find that claimant intended to continue to obtain treatment from Dr. Hall we cannot say that the ALJ erred in identifying this as an issue ripe for determination.
Further, in Mason Jar Restaurant v. Industrial Claim Appeals Office 862 P.2d 1026 (Colo.App. 1993), the court was faced with the issue of whether the MUR statute authorizes a permanent ban on treatment from the reviewed physician. In Mason Jar the court determined that removal of a physician from the workers' compensation case through the MUR proceeding did not result in a permanent ban on treatment from the removed physician. The MUR proceeding covered a fixed period of time and a permanent ban would nullify the claimant's right to request a change in the authorized treating provider at any time. Mason Jar Restaurant, 862 P.2d at 1030. Under Mason Jar the actions of the parties after the Director's MUR order, independent of any appeal of the MUR order, could have resulted in a change of physician. In our view, this is the type of issue that the ALJ considered to be in front of him.
Here, the ALJ determined that the respondents had raised an issue about whether Dr. Struck refused to treat and although the ALJ found that the doctor had unequivocally refused to treat he also found that there was no procedural bar to decide the issue. The ALJ noted that he could select a new treating physician, but that it would be unwise in the current setting and the issue could be better decided when the information was more complete. We note that the ALJ did not make it clear what additional information would be needed to better decide the issue of selection of a new treating physician, but the ALJ's refusal to resolve the issue is not before us. However, it is clear that the ALJ found that a ripe issue was before him although he chose not to resolve it.
The claimant places great reliance on BCW Enterprises, Ltd. v. Industrial Claim Appeals Office 964 P.2d 533 (Colo.App. 1997), where the court held that a request for penalties predicated on a claim that an appeal had been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination. In BCW Enterprises, Ltd., the claimant chose to seek penalties against the insurer requesting penalties for an alleged bad faith appeal before the appeal was ultimately resolved. In BCW the claimant had the option of awaiting the adjudication of that appeal before her request for imposition of penalties for an alleged bad faith appeal became ripe for determination. In contrast, here the respondents have a continuing duty under the Workers' Compensation Act to provide needed medical care. The respondents did not have the option to take no action and provide no medical care until resolution of the claimant's appeal of the MUR order. The respondents had an ongoing duty to provide authorized medical care during the appeal and as part of that obligation sought an order from ALJ regarding a new authorized treating physician. ALJs are empowered to conduct hearings to determine any controversy concerning any issue arising under the Workers' Compensation Act. Section 8-43-207 C.R.S. 2008. Therefore, the ALJ did not error in determining that there was a ripe issue before him.
This case involves the difficult period of time for providing that necessary medical treatment to the claimant during the interval between the effective date of the Director's MUR order directing a change of provider and the selection of a replacement physician, all of which occurred during the period of appeal of the MUR order. Here, as a part of their application for hearing the respondents sought an order from ALJ regarding a new authorized treating physician. Under these circumstances, we cannot say that the ALJ erred in determining that no other actions remained under the statute or rules as an impediment to identifying a new treating physician or determining whether there has been a refusal to treat. Therefore, there being no procedural bar to the issue raised in the application for hearing seeking an order from the ALJ regarding a new authorized treating physician, it appears to us that the matter was ripe and so the ALJ did not error in denying the request for attorney fees.
IT IS THEREFORE ORDERED that the ALJ's order dated January 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
VINCENT FRANZ, WOODLAND PARK, CO, (Claimant).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
STEVEN U MULLENS, PC, Attn: STEVEN U MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: LISA SIMONS, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS CECILIA HUST, DENVER, CO, (Other Party).