Opinion
W.C. No. 4-440-444
December 17, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which orders them to pay for prescription medications and for a May 20, 2002, emergency room (ER) visit. The respondents contend the evidence does not support the ALJ's determinations that the medications were authorized, related to the industrial injury, and reasonable and necessary treatment. The respondents also contend they were denied due process by consideration of the ER issue. We affirm the order insofar as it awards medications and set it aside and remand for further proceedings with respect to the ER visit.
The claimant sustained a compensable injury to her thoracic spine in September 1999. The employer did not immediately refer the claimant to an authorized treating physician, and the claimant elected to obtain treatment from Dr. Villalon and his referrals. The respondents contested liability for the claim and authorization for the medical treatment, but in an order dated May 31, 2000, the ALJ found the claim compensable and determined the treatment was authorized.
On December 17, 1999, prior to the May 2000 order, the respondents' counsel wrote to claimant's counsel stating that an appointment was scheduled with Dr. Michael Moll, the "designated authorized workers' compensation physician." The letter advised that "Dr. Moll will take over" the claimant's care "if the claim is found compensable."
Thereafter, the claimant obtained treatment from Dr. Moll and his partner, Dr. Lori Moll. However, in August 2001, the parties agreed that Dr. Campbell would become "an authorized treating physician." (Respondents' Exhibit K, p. 72; Finding of Fact 8). Despite the agreement the claimant did not obtain treatment from Dr. Campbell because Dr. Campbell's office was not conveniently located for the claimant. (Finding of Fact 9).
Dr. Michael Moll and Dr. Lori Moll prescribed medication to the claimant between February 4, 2002, and May 3, 2002. However, on February 26, 2002, the insurer contacted the Molls' office and advised that Dr. Campbell was to be the treating physician for the injury. This position was reiterated in a letter dated April 10, 2002. Nevertheless, the Molls continued to prescribe medication through April 2002, but advised the claimant they could not provide treatment thereafter. (Tr. Pp. 41, 56).
On May 20, 2002, the claimant sought ER treatment at the Spanish Peaks Medical Center because she had run out of medications. The claimant testified, over the respondents' objection, that she went to the ER because she could no longer receive medications from Dr. Moll and could not locate Dr. Campbell who had moved her practice. (Tr. Pp. 41-47).
Based on this evidence, the ALJ found that Dr. Michael Moll is an authorized treating physician because the respondents designated him as such and paid for his treatment before attempting to "deauthorize" him in 2002. (Finding of Fact 16). The ALJ also found Dr. Lori Moll is authorized on referral from Michael Moll. (Finding of Fact 5). Next, the ALJ found that the need for the medications prescribed between February and May 3, 2002, is causally-related to treatment for the industrial injury, and the medications were reasonable and necessary to treat the claimant's condition. Consequently, the ALJ ordered the respondents to pay for the disputed prescriptions. The ALJ also ordered the respondents to pay for the May 20 ER visit.
I.
On review, the respondents first contend the record does not support the ALJ's findings that both Dr. Michael Moll and Dr. Lori Moll are authorized treating physicians. The essence of the respondents' arguments is that Dr. Michael Moll was not authorized because in the May 2000 order the ALJ found the physicians selected by the claimant are authorized. The respondents also assert that Dr. Moll was not authorized after the claimant agreed for Dr. Campbell to become an authorized physician in August 2001. Finally, the respondent contends there is no evidence to support the finding that Dr. Lori Moll is authorized. We reject these arguments.
The term "authorization" refers to a physician legally authorized to treat the claimant so that the physician may expect to receive payment from the insurer for treatment to cure and relieve the effects of an industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). Aside from "selection" of an authorized physician as provided in § 8-43-404(5)(a), C.R.S. 2003, a physician may become authorized upon referral from a previously authorized physician, or if the "employer has expressly or impliedly conveyed to the employee the impression" that a physician is considered to be authorized. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Greager v. Industrial Commission, 701 P.2d 168, 170 (Colo.App. 1985).
We have previously held that once a physician becomes authorized, the mere selection or designation of another authorized physician does not have the effect of "deauthorizing" the previously authorized physician. Rather, "deauthorization" may occur if evidenced by an express agreement under which the claimant waives treatment by the previously authorized physician. Granger v. Penrose Hospital, W.C. No. 4-351-885 (July 20, 1999); Chapman v. The Spectranetics Corp., W.C. No. 4-162-568 (May 30, 1997).
Here, the record amply supports the ALJ's determination that Dr. Michael Moll was authorized by the respondents' express and implied conduct. In December 1999 the respondents advised the claimant that Dr. Moll would "take over" as the authorized treating physician contingent on the outcome of the pending litigation. Moreover, the respondents' final admission of liability dated February 19, 2003, which admits for $15,481 in medical expenses, and the testimony of the claimant that she received treatment from Dr. Moll from 1999 until April 2000 when Dr. Moll indicated he could no longer provide it, supports the ALJ's finding that the respondents acted in a manner which made it reasonable for the claimant to assume Dr. Moll was authorized. (Tr. Pp. 25-27). Greager v. Industrial Claim Appeals Office, supra.
The May 2000 order makes no difference. That order was not concerned with whether Dr. Moll was authorized. Moreover, the fact that the ALJ determined the physicians selected by the claimant were authorized did not prevent the respondents from acting in a manner so as to authorize additional physicians.
Neither does the record support the respondents' assertion that the designation of Dr. Campbell as an authorized treating physician in August 2001 deauthorized Dr. Moll. The letter dated August 24, 2001, by which respondents' counsel memorialized the parties' agreement, merely states that Dr. Campbell "may proceed as an authorized treating physician." The letter contains no statement that the parties' agreed to remove Dr. Moll's authorization, or treat Dr. Campbell as the sole authorized treating physician. Hence, the ALJ need not have found the claimant waived her right to have Dr. Moll considered an authorized physician.
Finally, the record supports the ALJ's finding that Dr. Lori Moll was authorized. Dr. Michael Moll testified that he was in practice with Dr. Lori Moll during the disputed period of time. When one physician was out of the office, it was customary for the remaining physician to treat the other's patients. (Tr. Pp. 77, 79). A logical inference drawn by the ALJ was that there was a mutual referral within this medical practice, and therefore, Dr. Lori Moll treated the claimant on referral from Dr. Michael Moll. Further, the ALJ could infer this mutual arrangement represented the independent medical judgment of Dr. Michael Moll that Dr. Lori Moll was qualified to treat the claimant. See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
II.
The respondents next contend the claimant failed to prove that the disputed prescriptions were causally related to the 1999 injury, or reasonable and necessary to treat the injury. The respondents argue the overwhelming weight of the evidence fails to support the ALJ's findings with respect to these issues. We disagree.
The issues of whether a need for treatment was caused by the industrial injury, and whether particular treatment is reasonable and necessary, are questions of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002); Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). Because these issues are factual in nature, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences in the record.
Here, Dr. Michael Moll testified that the medications prescribed during the disputed period of time were prescribed mainly to treat pain caused by the claimant's industrial thoracic spine condition, although they may have also relieved an unrelated lumbar condition. This testimony, together with that of the claimant, amply supports the finding of causation as well as the finding that the prescriptions were reasonable treatment to relieve the industrial injury. (Tr. Pp. 82-84, 105-106). The mere fact that some evidence might support contrary inferences provides no basis for relief on appeal.
III.
The respondents next contend the ALJ erred in admitting Claimant's Exhibit 3, which is an itemized bill from the pharmacy concerning medications which the claimant purchased from February 4, 2002, through May 3, 2003. The respondents contend this document was hearsay.
However, we consider the bill to constitute a "medical record" within the meaning of § 8-43-210, C.R.S. 2003. Consequently, the document was admissible without further foundation. The document is a "medical record" because it was generated by one of the providers of the claimant's medical treatment (pharmacy) and itemizes the cost of specific prescriptions provided for treatment of the industrial injury. Cf. Churchill v. Sears Roebuck Co., 720 P.2d 171 (Colo.App. 1986) (report of an employer concerning reasons for claimant's termination from employment constituted a "vocational report" within the meaning of statute currently codified at § 8-43-210).
The remainder of the respondents' argument goes to the weight to be assigned this document. Dr. Michael Moll explained that sometimes prescriptions would be phoned in if the claimant was not showing variances in use of medication, and that Dr. Lori Moll sometimes filled the prescriptions.
IV.
The respondents next contend they were denied due process of law because the ALJ admitted the claimant's testimony concerning the reasons for May 20 ER visit. Specifically, the respondents contend the claimant failed to provide a specific response to an interrogatory concerning the reasons for the ER visit, and the respondents were unfairly surprised by the claimant's testimony that she cold not find Dr. Campbell. We remand for further proceedings.
Due process guarantees the right to be heard at a meaningful time and in a meaningful way. Whiteside v. Smith, 67 P.3d 1240 (Colo. 2003). Consequently, where administrative proceedings turn on questions of fact the parties are entitled to be apprised of the evidence to be submitted and considered, and afforded a reasonable opportunity to present their own evidence and confront adverse evidence. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
Here, the respondents submitted an interrogatory to the claimant requesting her to "set forth with particularity each and every fact upon which you intend to rely at hearing to establish entitlement to benefits" listed in the application for hearing. The application listed the ER visit as an issue, and specified the question of authorization. In response to the interrogatories the claimant stated that she "lost health insurance benefits" and "would request from the employer replacement cost of such benefits." (Respondents' Exhibit L).
Apparently, a prior hearing was canceled because the respondents objected to the adequacy of the claimant's responses to this and other interrogatories.
We agree with the respondents that the claimant's answer to the interrogatory contains no statement concerning the reasons why she sought ER treatment on May 20, and specifically no discussion of her inability to locate Dr. Campbell who had allegedly left private practice and could not be found . Although the claimant argues the respondents were aware of this "problem," the letter of claimant's counsel dated May 8, 2002, does not state the claimant could not find Dr. Campbell. Rather, the letter states Dr. Campbell was declining to treat the claimant because she had previously performed an independent medical examination. On May 13, the respondents "confirmed" their "commitment to Dr. Campbell's continued involvement in any" necessary maintenance care.
Under these circumstances, we cannot say the claimant adequately disclosed the basis of her factual contention that she was entitled to seek ER care, without prior authorization, on May 20. See Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990) (setting forth circumstances in which emergency care is an exception to the requirement of authorized treatment). The respondents were entitled to reasonable notice of the legal and factual basis of the claim, and indeed asked for it.
Thus, we agree with the respondents that they were deprived of due process of law because they did not receive adequate notice of the evidence to be submitted and considered by the ALJ. On this issue, the matter shall be remanded to the ALJ for the purpose of affording the respondents a hearing to submit additional evidence concerning the reasons and circumstances surrounding the ER treatment, and for additional cross examination of the claimant if the respondents so choose. The parties should also be afforded the opportunity to submit any admissible rebuttal evidence.
V.
The respondents also contend the claimant violated § 8-43-503(3), C.R.S. 2003, which prohibits a claimant from dictating to any physician the "type or duration of treatment." The respondents contend the claimant deliberately failed to cooperate with Dr. Campbell's recommended course of therapy.
However, the ALJ found a s a matter of fact that the claimant did not attend treatment with Dr. Campbell because of the inconvenience of traveling a substantial distance to receive such treatment. Moreover, as the ALJ found, Dr. Moll was not deauthorized when Dr. Campbell was agreed to by the parties. Thus, there is ample evidence from which the ALJ could find that the claimant's failure to obtain treatment from Dr. Campbell was not because the claimant was attempting to dictate the "type or duration of treatment," but was merely doing that which was most convenient for the claimant. See Provo v. Industrial Claim Appeals Office, 66 P.3d 138, 144 (Colo.App. 2002) (attorney did not "dictate" treatment by advising insurer not to pay for chiropractic treatment), aff'd. in part and rev'd. in part on other issues, Dworkin, Chambers Williams v. Provo, ___ P.3d ___ (Colo. No. 02SC792, December 1, 2003).
IT IS THEREFORE ORDERED that the ALJ's order dated May 23, 2003, is set aside insofar as it ordered payment for ER treatment. On this issue the matter is remanded for further proceedings consistent with the views expressed herein.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on December 17, 2003 by A. Hurtado.
Irene Jeppsen, 17 County Road 592, Walsenburg, CO 81089
Huerfano Medical Center, c/o Spanish Peaks Medical Center, 23500 Highway 60, Walsenburg, CO 81089
Colorado Hospital Association Trust, c/o Mary Ann Donelson, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
James M. Anderson, Esq., 4905 N. Union Blvd., #302, Colorado Springs, CO 80903 (For Claimant)
Clyde E. Hook, Esq., Harvey D. Flewelling, Esq., and Gary L. Fleming, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)