Opinion
W.C. No. 4-421-759
September 16, 2002
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Mattoon (ALJ) which determined that she lacked jurisdiction to determine whether the claimant had reached maximum medical improvement (MMI), and denied a claim for penalties based on violation of two rules of procedure. We reverse the ALJ's jurisdictional ruling and remand for an order assessing penalties for violation of one rule. Otherwise, the order is affirmed.
The claimant sustained a compensable leg injury in May 1999. Eventually, the claimant developed injury-related depression. The ALJ found that Dr. Danylchuk was the primary treating physician for the leg injury and Dr. Martin was the primary treating physician for the depression. Dr. Danylchuk was not Level II accredited, but Dr. Martin was.
On March 20, 2001, Dr. Danylchuk issued a report stating the claimant was requesting an impairment rating and would be referred to Dr. Campbell. On April 28, 2001, Dr. Campbell, a Level II accredited physician, issued a report opining the claimant has a 6 percent impairment of the lower extremity and no psychological impairment. The report expressly states the claimant was evaluated for permanent impairment at Dr. Danylchuk's request and the date of MMI was March 20, 2001, "the last visit with Dr. Danylchuk before referral."
The respondents filed a final admission of liability on July 5, 2001, based on Dr. Campbell's report. The respondents did not attach any reports from Dr. Danylchuk or Dr. Martin. On October 1, 2001, Dr. Martin issued a report opining the claimant had not reached MMI for the depression.
The claimant requested a hearing to resolve a dispute between authorized treating physicians concerning whether or not she had reached MMI. However, the ALJ determined she did not have jurisdiction to resolve the issue because the claimant failed to make a timely request for a Division-sponsored independent medical examination (DIME) under the provisions of § 8-42-107.2, C.R.S. 2001.
The claimant also contended the insurer violated Rule of Procedure IX (C) (1) (a), 7 Code Colo. Reg. 1101-3, because it filed an admission of liability terminating temporary disability benefits without attaching a report from an authorized treating physician stating the claimant had reached MMI. However, the ALJ rejected this claim finding that the respondents did not violate the rule because the referral from Dr. Danylchuk to Dr. Campbell implicitly stated the claimant reached MMI, and the insurer "reasonably relied on the report of Dr. Campbell" in filing the admission.
The ALJ also rejected the claimant's contention that the respondents violated Rule of Procedure IV (N) (4) (a), 7 Code Colo. Reg. 1101-3, because the respondents failed to procure an MMI opinion from Dr. Martin concerning whether the claimant reached MMI for the depression. The ALJ found the respondents failed to present persuasive proof of a violation.
I.
On review the claimant first contends the ALJ erred in determining that she lacked jurisdiction to resolve a conflict between treating physicians concerning MMI. We agree with this argument.
Section 8-42-107(8)(b)(I), C.R.S. 2001, provides that an authorized treating physician is to determine when the claimant reaches MMI. If a party wishes to dispute the determination, the party must request a DIME, and the DIME physician's opinion concerning MMI becomes binding unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(II) and (III), C.R.S. 2001; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Nevertheless, in Blue Mesa Forest v. Lopez, 928 P.2d 831, 833 (Colo.App. 1996), the court stated the following:
However, an IME is not a prerequisite to the ALJ's resolution of a factual dispute concerning which physician is an authorized treating physician within the meaning of § 8-42-107(8)(b), whether the physician made a determination of MMI, and the issuance of conflicting or ambiguous opinions concerning whether the claimant has reached MMI.
We have previously rejected the argument that no legitimate controversy may exist where one authorized treating physician issues an opinion that the claimant is not at MMI after another physician issues an opinion that the claimant has reached MMI. Rather, the statutory prohibition is against circumventing the DIME procedure by retaining new treating physicians after the claimant has been placed MMI for the purpose of attacking the MMI determination. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). Where a physician is already qualified as a treating physician at the time MMI is found by another physician, the first physician may generate a factual dispute by issuing an opinion that the claimant has not reached MMI. Strombitski v. Dominos / Mand Made Pizza, W.C. No. 4-403-661 (September 21, 2000), aff'd. Mand Made Pizza v. Industrial Claim Appeals Office, (Colo.App. No. 01CA1940, June 20, 2002) (not selected for publication). The timing of the opinion that the claimant is not at MMI may affect the credibility of the opinion, but not its admissibility. Cf. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
Here, we agree with the claimant that Dr. Martin's October 1 report creates a dispute with Dr. Danylchuk concerning whether or not the claimant reached MMI on March 20, 2001. Resolution of this factual dispute is a matter for the ALJ, and the matter must be remanded for resolution of the dispute. Blue Mesa Forest v. Lopez, supra.
Further, we disagree that the claimant's failure to request a DIME within the time limits established by § 8-42-107.2 deprived the ALJ of jurisdiction to consider the claimant's argument that she was not at MMI. Section 8-42-107.2(1), C.R.S. 2001, provides that the statute governs the "selection of an independent medical examiner" to "resolve disputes arising under section 8-42-107." Thus, by its plain and ordinary meaning, the statute establishes deadlines for selection of a DIME only in those circumstances where a DIME is required to resolve a dispute under § 8-42-107. As we have held, resolution of the conflict between the treating physicians is not subject to the DIME process, but is instead a factual issue for the ALJ. Because the DIME process does not govern resolution of the issue, the claimant was not obliged to request a DIME within the time limits established by the statute. Cf. Chasteen v. King Soopers, Inc., W.C. No. 4-445-608 (July 11, 2001) (respondents not required to comply with § 8-42-107.2 to contest treating physician's opinion that claimant suffered a work-related injury because that is a threshold determination for the ALJ and not subject to DIME procedure).
II.
The claimant next contends the facts of the case compel the conclusion the claimant is not at MMI. The claimant reasons Dr. Danylchuk's March 20 note is insufficient to establish MMI because it does not establish a date of MMI. The claimant also asserts that Dr. Danylchuk could not place the claimant at MMI because he was not the "primary" treating physician for the claimant's depression. We are not persuaded.
Section 8-42-107(8)(b)(1), C.R.S. 2001, provides an authorized treating physician "shall make a determination as to when the injured employee reaches" MMI. MMI is the point in time at which the claimant's condition is stable and any permanent impairment becomes ratable. Section 8-40-201(11.5), C.R.S. 2001; Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995). Further, the statutory scheme contemplates that when a treating physician who is not Level II accredited finds the claimant has reached MMI, and that the claimant sustained permanent impairment, the treating physician must refer the claimant to an accredited Level II physician for an impairment rating. Section 8-42-107(8)(b.5)(II), C.R.S. 2001.
Thus, we agree with the ALJ that Dr. Danylchuk's March 20 note implicitly states the claimant was at MMI. Otherwise, his referral to Dr. Campbell for a rating would not make sense. Moreover, although the note does not give a specific date of MMI, it may reasonably be inferred the claimant had reached MMI by the date of the referral, March 20, 2001.
The claimant next contends that because the claimant had two treating physicians providing primary care Dr. Danylchuk was not qualified to place the claimant at MMI without a supporting MMI opinion issued by Dr. Martin. In support of this proposition, the claimant cites § 8-42-107(8)(b.5), which establishes a procedure to refer the claimant for an impairment rating when the claimant is placed at MMI by "an authorized treating physician providing primary care" who is not level II accredited. As the claimant points out, the statute is mirrored by Rule of Procedure IV (N) (4) (a), 7 Code Colo. Reg. 1101-3.
However, the statute and rule require only that "an" authorized treating physician providing primary care place the claimant at MMI. The statute does not require that all primary treating physicians agree the claimant has reached MMI, nor does it make any distinctions based on the particular types of treatments the claimant is receiving. We decline to read into the statute and rule any requirements not expressly stated therein. See Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001).
Moreover, as a factual matter, the claimant testified that it was Dr. Danylchuk who referred her to Dr. Martin for treatment of depression. It may be inferred from this fact that Dr. Danylchuk was qualified to diagnose depression and determine whether treatment is necessary. Thus, it might also be inferred that he was capable of judging whether the claimant's depression was stable and did not warrant further treatment to improve her condition. In any event, the DIME process affords the parties a method of challenging MMI determinations if they are deficient.
It follows from this discussion that we agree with the ALJ's denial of penalties based on the claimant's assertion that the respondents violated Rule of Procedure IV (N)(4)(a) by filing an admission without obtaining an MMI report from Dr. Martin.
III.
The claimant next contends the ALJ erred in denying a claim for penalties based on the respondents' alleged violation of Rule of Procedure IX (C) (1) (a), 7 Code Colo. Reg. 1101-3. The claimant argues the report of Dr. Campbell was not the report of an "authorized treating physician" for purposes of terminating the claimant's temporary disability benefits under the rule. The respondents defend on the ground that the filing of the admission was governed by Rule of Procedure IV (N) (8), 7 Code Colo. Reg. 1101-3, and they acted reasonably in relying on the report of Dr. Campbell. We agree with the claimant that the respondents' conduct constitutes a punishable violation of Rule IX.
Section 8-43-304(1), C.R.S. 2001, authorizes the imposition of penalties up to $500 per day on any insurer which fails or refuses to perform any duty lawfully enjoined by the Director, or fails, refuses, or neglects to perform any lawful order of the Director. Violation of a rule of procedure has been found to justify the imposition of penalties under the statute. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997).
`However, not every violation of a rule is punishable. Rather, imposition of penalties under the statute is governed by an objective standard of negligence. The question is whether the insurer's conduct was reasonable, and there is no requirement that the insurer know its conduct was unreasonable. The reasonableness of the insurer's conduct depends on whether its actions were predicated on a rational argument based in law or fact. Diversified Veterans Corporate Center v. Hewuse, supra. Reasonableness is ordinarily a question of fact for the ALJ. See Pueblo School District No. 70 v. Toth, 924 P.2d 1094 (Colo.App. 1996). However, the issue may become one of law if reasonable minds can draw but one inference from the undisputed facts. Schrieber v. Brown and Root, Inc., 888 P.2d 274 (Colo.App. 1993).
Rule of Procedure IX (C) (1) (a) provides for the termination of temporary disability benefits without a hearing, if the respondents file an admission of liability with a "medical report from the authorized treating physician stating the claimant has reached maximum medical improvement; provided such admission of liability shall state a position on permanent disability benefits as provided in Rule IV (G)." Rule IV (N) (8), which applies to scheduled impairments, provides that an insurer must admit liability or request a hearing "within 30 days after a determination of permanent impairment from an authorized level II accredited physician is mailed or delivered."
The claimant argues that Rule IX (C) (1) (a) was violated because the undisputed evidence, and the findings of the ALJ, establish that Dr. Campbell was not an "authorized treating physician." An authorized treating physician has been defined as a physician who renders treatment to the claimant with the requisite legal authorization. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995).
Here, we agree with the claimant that there is no basis for finding Dr. Campbell was an "authorized treating physician" for purposes of Rule IX (C) (1) (a). Dr. Danylchuk referred the claimant to Dr. Campbell for an impairment rating, not for treatment. This referral was consistent with the statutory scheme which requires a non-Level II provider, who places the claimant at MMI, to refer the claimant to an accredited Level II provider for a rating. Section 8-42-107(8)(b.5)(II); Rule of Procedure IV (N) (4) (a) (1). More importantly, the insurance adjuster testified that she understood the referral to Dr. Campbell was for the purpose of obtaining a rating, not for treatment. (Tr. pp. 33-34). Finally, the ALJ, consistent with this evidence, found Dr. Campbell was not "a treating physician providing primary care."
It follows the record does not support the ALJ's legal conclusion that there was no violation of Rule IX (C) (1) (a). The rule requires the filing of an admission together with the report of an authorized treating physician which places the claimant at MMI. Dr. Campbell was not an authorized treating physician, and her report does not suffice under the rule. The fact that Dr. Danylchuk's March 20 report implicitly placed the claimant at MMI does not change the result because the respondents did not file Dr. Danylchuk's report with the admission.
The respondents assert they acted reasonably in relying on Dr. Campbell's MMI determination because they were required to file an admission under Rule IV (N) (8). This argument presumes that Rule IV (N) (8) is inconsistent with or supersedes the requirements of Rule IX (C) (1) (a). However, these two rules govern different issues and are not inconsistent. Rule IX provides a basis for unilateral termination of temporary disability benefits while affording the claimant notice of the respondents' factual basis for terminating benefits. The rule also insures that benefits will continue unless the respondents can establish a prima facie case for termination of benefits under the statute. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000); Monfort Transportation v. Industrial Claim Appeals Office, 942 P.2d 1358 (Colo.App. 1997); Jyrkinen v. Peakload, Inc., W.C. No. 4-139-096 (June 15, 1994). Rule IV (N) (8) concerns the respondents' separate obligation to admit for permanent disability benefits or request a hearing after they receive an impairment rating from a Level II physician authorized to issue such a rating. In this case, because Dr. Danylchuk was not Level II accredited, the claimant was referred to Dr. Campbell for a rating in accordance with the statute and Rule IV (N) (4) (a) (1). Cf. Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo.App. 1999) (filing admission for scheduled rating under Rule IV (N) (8) did not excuse respondents from filing a new admission for whole person rating under Rule IV (N) (5) when they received determination of Level II physician that claimant sustained whole person impairment).
The respondents also argue they rationally relied on Rule IV (N) (8) as authority for their actions. However, as we have held, the assertion that Dr. Campbell was an "authorized treating physician" for purposes of placing the claimant at MMI is not consistent with statutory and regulatory schemes. Moreover, the insurance adjuster testified that she believed she did not have to attach the report of an authorized treating physician if the authorized treating physician is not Level II accredited and there is a "referral" for a rating. (Tr. p. 34). However, the adjuster cites no authority for this proposition, and it is contrary to the express language of Rule IX (C) (1) (a). As noted above, the adjuster's knowledge that a rule was being violated is not a requirement for the imposition of a penalty. It follows that we find no evidentiary support for Conclusion of Law 10 that the insurer "reasonably relied on the report of Dr. Campbell that Claimant had reached MMI."
We recognize that Rule IV (N) (8) refers to a determination of impairment by an "authorized" Level II accredited physician. However, the term authorization, as it is used in this context, clearly refers to a Level II physician "authorized" to issue an impairment rating, not the physician's authorization to treat the claimant and determine MMI. This is true because the rule also discusses a determination by "an authorized treating physician providing primary care that there is no impairment." (Emphasis added).
Under these circumstances, the matter must be remanded for entry of an order assessing penalties for a violation of Rule IX. In reaching this result we note the ALJ has wide discretion to determine the amount of penalties, and may consider both mitigating and aggravating circumstances.
IV.
The respondents raise certain constitutional arguments concerning the ALJ's jurisdiction. We note that the Court of Appeals has rejected some of these arguments in
MGM Supply Co. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA1200, March 14, 2002). In any event, the respondents' arguments are beyond our jurisdiction. MGM Supply Co. v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated May 21, 2002, is set aside insofar as the ALJ determined that she lacked jurisdiction to consider the contention that the claimant was not at MMI.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it denied the claim for penalties for violation of Rule IX. The matter is remanded for an order assessing penalties based on the existing record.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ______________________________ Kathy E. Dean
NOTICE
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, CO. 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. 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 Street, Tower 3, Suite 350, Denver, CO. 80202.
Copies of this decision were mailed September 16, 2002 to the following parties:
Marie Pacheco, 2503 Cheyenne, Pueblo, CO. 81003
Angelo Patti, Patti's Inc., P. O. Box 101621, Denver, CO. 80250
Mid Century Insurance Co., Kay Rakow CR, 7535 E. Hampden Ave., #300, Denver, CO. 80231
Lawrence D. Saunders, Esq., 125 W. "B" St., Pueblo, CO. 81003 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO. 80202 (For Respondents)
By: A. Hurtado