Opinion
W. C. No. 4-631-370.
August 17, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated March 21, 2007, that granted the respondent's motion for partial summary judgment and denied a claim for penalties based on the alleged failure of the respondents to timely pay for an independent medical evaluation (IME) that the respondents had arranged. We affirm.
The claimant sustained an admitted work-related injury to his low back on August 18, 2004. The respondents requested the claimant attend an IME with Dr. Sabin on November 4, 2005. The claimant in his response in opposition to the respondent's motion for summary judgment agreed that the examination conducted by Dr. Sabin was not medical treatment. As pointed out by the claimant in his brief respondents' counsel wrote a letter to the claimant's counsel informing the claimant of the IME appointment which had been scheduled pursuant to § 8-43-404, C.R.S. 2006. Exhibit 1. Dr. Sabin was never claimant's authorized treating physician.
The claimant filed an application for hearing endorsing various penalty claims. The penalty claim involved here was described as follows:
The claimant also asserts a claim for penalties for violation of the Colorado Division of Workers' Compensation Rules of Procedure 16-11(A)(2) for failure to pay for Dr. Sabin's report within 30 days after receipt of the bill by the payer. The bill was faxed to the respondents on January 5, 2006 and not paid in full until February 28, 2006.
In ruling on respondents' motion for summary judgment the ALJ noted the claimant, at that time, argued the existence of disputed issues of material fact. The claimant specifically questioned whether Dr. Sabin was a "provider" or provided authorized healthcare services within the meaning of the Workers' Compensation Rules of Procedures, which would entitle his office to timely payment pursuant to the relevant rule of procedure. The ALJ concluded that the interpretation of authorized healthcare services or provider, as set forth in the rules of procedure, did not constitute a disputed issue of material fact, but rather presented a question of law.
The ALJ determined that an IME such as the one conducted by Dr. Sabin did not fall within the scope of the rules promulgated by the Director pursuant to the legislature's charge set forth in § 8-42-101(3)(a)(I), C.R.S. 2006 to establish fees for all medical treatment rendered to employees. The ALJ determined that W.C. Rule of Procedure 16-11(A)(2), 7 Code Colo. Reg. 1101-3 at 93 applies to bills submitted by a "provider" and Dr. Sabin was not a "provider" for the purposes of Rule 16-11(A)(2). Accordingly, penalties could not be imposed upon the respondents for allegedly failing to timely pay Dr. Sabin in accordance with Rule 16-11(A)(2) because Dr Sabin's IME did not come under the purview of the rule. Therefore, the ALJ dismissed the claim for penalties based on the alleged violation of Rule 16-11(A)(2). The ALJ relied on cases where orders pertaining to an IME were found to be interlocutory in nature because IMEs served an evidentiary function and were not subject to review because they did not require payment of a benefit or penalty.
I.
Summary judgment may be sought in a workers' compensation proceeding. Fera v. Industrial Claim Appeals Office of State, ___ P.3d ___ (Colo.App. 2007); McCormick v. Exempla, W.C. No. 4-594-683 (July 03, 2007). The Office of Administrative Courts has promulgated a procedural rule authorizing summary judgment. OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts' Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). It is true that summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App. 1991).
The Workers' Compensation Act mandates the standard we must apply when reviewing grants of summary judgment made by an ALJ. The bases enumerated in § 8-43-301(8), C.R.S. 2006, on which we may set aside an order of the ALJ are:
that conflicts in the evidence are not resolved in the record; that the findings of fact are not supported by the evidence; that the findings of fact do not support the order; or that the award or denial of benefits is not supported by applicable law. If the findings of fact entered by the director or administrative law judge are supported by substantial evidence, they shall not be altered by the panel.
We must therefore accept the ALJ's statements of undisputed facts pertaining to a claimant's request for penalties against a respondent if substantial evidence in the record supports that statement of facts, but we must set aside the grant of summary judgment in a respondent's favor if we determine that conflicts in the evidence are not resolved in the record or the order is not supported by applicable law. Fera v. Industrial Claim Appeals Office, supra. In our view the ALJ did not err in granting summary judgment on this penalty claim.
On appeal the claimant now argues that there are disputed issues of fact related to whether Dr. Sabin's report was incidental to other curative procedures. The claimant argues that in his report Dr. Sabin recommended that the claimant undergo facet blocks and the claimant requested additional medical care in keeping with Dr. Sabin's recommendations, which were then authorized by the insurer. The claimant further argues that these factual allegations must be litigated to see whether Dr. Sabin's examination can be seen to be incident to further medical treatment. We disagree.
In our view Dr. Sabin's recommendations for medical care were not material factors on the issue of granting summary judgment which dismissed the claimant's claim for penalties for the alleged failure of the respondent's to pay the bill of their own IME. As explained below we agree with the ALJ that the IME here was not included within the legislative mandate under § 8-42-101(1)(a) for employers to provide medical treatment nor the directive under § 8-42-101(3)(a)(I) for the Director to establish a fee schedule for such treatment and not within the definition of a "provider" under the applicable Workers' Compensation Rule of Procedure. Therefore, whether or not the IME's recommendations could be viewed as incidental to curative procedures they were not material to the penalty issue of timely payment of the IME's bill under the rules of procedure.
II.
The claimant contends that the ALJ erred as a matter of law in determining that penalties could not be imposed upon the respondents for allegedly failing to timely pay Dr. Sabin because IMEs undertaken pursuant to § 8-43-404 C.R.S. 2006 serve only an evidentiary purpose and are neither required by, nor included within, the legislative mandate to employers in § 8-42-10 to provide treatment to cure and relieve the employee from the effects of the industrial disease.
The claimant does not point to a case directly on point, but argues that the ALJ erred in using a narrow definition of "treatment" as services to cure and relieve an injury. The claimant cites cases where the respondents were found liable for treatment, which included services that are incidental to obtaining medical services such as mileage to and from doctor's visits, attendant care and diagnostic tests.
It is provided in § 8-43-404 (1) that the claimant shall from time to time submit to an examination by a physician paid for by the insurer. Section 8-43-404 (2) provides that:
The employee shall also be entitled to receive from the examining physician or chiropractor a copy of any report which said physician or chiropractor makes to the employer, insurer, or division upon said examination, said copy to be furnished to the employee at the same time it is furnished to the employer, insurer, or division. The employee shall also be entitled to receive reports from any physician selected by the employer to treat said employee upon the same terms and conditions and at the same time the reports are furnished by the physician to the employer. (Emphasis supplied).
Thus, the statute requiring the claimant to attend an IME arranged for by the respondents distinguishes between an IME physician and a physician selected to treat the claimant. Therefore, in our opinion the ALJ did not error in determining that the IME was neither required by or included within the legislative mandate to employers in § 8-42-101 to furnish such medical care as is reasonably necessary to cure and relieve employees from the effects of their work-related injuries. Consequently, IMEs do not fall within the scope of the rules promulgated by the Director pursuant to the legislature's charge set forth in § 8-42-101(3)(a)(I) to establish a schedule fixing the fees for all medical treatment rendered to employees. We note the claimant also sought penalties against the respondents for failing to provided a copy of any report from the examination in compliance with § 8-43-404 (2). This penalty was not the subject of the order granting the respondent's motion to dismiss.
We note the legislature recently amended § 8-42-101(3)(a)(I), which obligates the Director to establish a schedule for fees for medical treatment. Senate Bill 07-258 which was effective on May 30, 2007, provides that the Director will now establish a fee schedule for medical services pertaining to injured workers "whether related to treatment or not." Colo. Sess. Laws 2007, ch. 341, § 8-42-101(3)(a)(I) at 1471.
There is a presumption that when a statute is amended there is an intent to change the law . People v. Hale, 654 P.2d 849 (Colo. 1982). This general principle applies here because the legislature in Senate Bill 07-258 added that the fee schedule shall apply not just to physicians, but also shall explicitly apply to an "expert witness, reviewer, evaluator [or institution.]" Colo. Sess. Laws 2007, ch. 341, § 8-42-101(3)(a)(I) at 1471. We believe this amendment indicates that the fee schedule prior to the amendment did not cover the circumstances present in this case where penalty is sought against the respondents for delay in paying a bill to their own expert under the rules enacted pursuant to § 8-42-101(3)(a)(I).
We agree with the ALJ that the IME here was not included within the legislative charge under § 8-42-101(1)(a) for the employer to provide medical treatment nor under § 8-42-101(3)(a)(I) requiring that the Director establish a fee schedule. Therefore, the respondents cannot have violated a rule established by the Director regarding medical treatment.
This view is consistent with our order in Weber v. Shiloh Homes, W. C. No. 4-540-459 (November 14, 2005) where we determined that a claimant had no standing to raise the issue of the amount of the fee paid by the respondents to their retained expert. This conclusion is also consistent with previous decisions in which we held that an IME serves as an evidentiary function and is a form of discovery. See American Express v. Industrial Commission, 712 P.2d 1131 (Colo.App. 1985) (payment of deposition expenses did not impose a "penalty"); Hawley v. Southwest TNT W. C. No. 3-109-919 (December 24, 1996); Leos v. Kent Group, Inc., W.C. No. 4-231-009 (November 25, 1996); Adams v. Sunburst Properties and Financial Corp., W.C. No. 4-261-472, (September 24, 1996); Hernandez v. Proctor, W.C. No. 4-203-029 (June 24, 1996). Consequently, we have concluded that an order requiring a party to obtain an IME is not subject to review. Aschenbrook v. Grand Junction Regional Center, W.C. No. 3-114-413, (December 12, 1996) (part of order requiring respondent to either admit liability consistent with physician's impairment rating or obtain IME not a final order); Adams v. Sunburst Properties, W.C. No. 4-261-472, (September 24, 1996).
III.
In addition, in our view an IME does not fall within the definition of a "provider" in W.C. Rule of Procedure 16-2(R), 7 Code Colo. Reg. 1101-3 at 85. Section 8-42-101(1)(a) requires employers to furnish appropriate medical treatment. The Director of the Division of Workers' Compensation is required to promulgate rules fixing fees and setting utilization standards for medical treatment. The Director promulgated corresponding regulations, including Rule 16, which is intended to "assure appropriate and timely medical care at a reasonable cost" and "defines the standard terminology, administrative procedures and disputes resolution procedures required to implement the Division's Medical Treatment Guidelines and Medical Fee Schedule." Rule of Procedure 16-1(A), 7 Code Colo. Reg. 1101-3 at 84. See Gant v. Etcetra, W. C. No. 4-586-030 (September 17, 2004). Moreover, "[a]ll providers and payers" are required to use the Medical Treatment Guidelines and Medical Fee Schedule under Rules 17 and 18. Id. It is provided in Rule 16-11(A)(2) regarding the payment of medical benefits that all bills submitted by a provider are due and payable in accordance with the Medical Fee Schedule within thirty (30) days after receipt of the bill by the payer. Rule 16-2(R) defines the term "provider" as "a person or entity providing authorized health care service to a worker in connection with a work-related injury or occupational disease." The parties dispute the scope of this term. The claimant contends the ALJ erred in determining that as a matter of law under Rule 16-2(R) Dr. Sabin could not be a "provider" because he was not an authorized treating physician, and because he did not provide curative treatment. We disagree.
Rule 16-2(B) provides that an authorized treating provider (ATP) may be any of the following:
(1) the initial treating physician chosen by either the employer or insurer, or, in the absence of choice, the health care provider chosen by the injured worker;
(2) a health care provider to whom an authorized treating physician refers the injured worker for treatment, consultation, or impairment rating;
(3) a provider who is designated by agreement of the injured worker and the payer; or
(4) a provider selected by the injured worker with permission from the payer, the Division, or after a hearing with an administrative law judge.
Rule of Procedure 16-2(B), 7 Code Colo. Reg. 1101-3 at 84.
In our opinion Dr. Sabin does not fit the definition of an authorized treating provider under the rules. Dr. Sabin was not the initial treating physician, nor a provider to whom an authorized treating physician referred the claimant, nor was the examination by agreement between the injured worker and the respondents, nor was he selected by the claimant.
Since we agree with the ALJ's determination that Rule 16-11(A)(2) expressly provides that it applies to bills submitted by a "provider" and Dr. Sabin was not a "provider" for purposes of the rule, we also agree that a penalty could not be imposed upon the respondents for allegedly failing to timely pay Dr. Sabin in accordance with the rules. This view is consistent with Dworkin, Chambers Williams, P.C. v. Provo, 81 P.3d 1053 (Colo. 2003). In Dworkin the court determined that penalties could not be imposed on an attorney who advised an insurer to violate an order. The court reasoned that it would be improper to extend the penalty statute to "a category of conduct not specifically covered by the statute.," Id. at 1060. The requirement in Rule 16-11(A)(2) that medical bills be paid within 30 days was imposed to comply with the legislative charge in § 8-42-101(1)(a) to assure appropriate and timely medical care at a reasonable cost. Rule of Procedure 16-1(A), 7 Code Colo. Reg. 1101-3 at 84. The 30-day time requirement in our view was not directed to assure that an expert retained by the respondents was promptly paid.
IV.
The claimant next argues that the ALJ's interpretation places IMEs outside the scope of the Act and rules of procedure, which would adversely affect the claimant's due process rights since the respondent could choose to withhold IME records and have no duty to produce those records by virtue of their refusal to pay. We disagree.
As noted above § 8-43-404 (2) provides that the claimant is entitled to receive from the IME a copy of any report which the physician makes to the employer or insurer. The claimant also sought penalties against the respondents for failing to provided a copy of any report from the examination in compliance with § 8-43-404 (2) and this penalty was not the subject of the order regarding the respondent's motion to dismiss. Presumably the claimant is free to pursue such penalty claim. In addition W.C. Rule of Procedure 5-4(A)(5), 7 Code Colo. Reg. 1101-3 at 14, provides that a copy of every medical report shall be exchanged with all parties within fifteen working days of receipt. The claimant also sought penalties against the respondent's for alleged violation of this rule and penalties have been imposed under this section. See Richardson v. Pizza Hut, W. C. No. 4-560-586 (November 17, 2005); Kelly v. Kaiser Hill, W. C. No. 4-332-063 (August 11, 2000). The failure of the respondents to timely pay for their own IME may certainly impact their ability to arrange for future IMEs, but in our view the ALJ's decision to dismiss the claim for penalties against the respondents does not impermissibly infringe on his due process rights to receive IME records.
V.
The claimant finally argues that if examinations made pursuant to § 8-43-404 are outside of the control of the Division of Workers' Compensation regarding billing then insurance companies would have no regulatory basis to dispute their bills and doctors would have no protection from carriers who schedule examinations and then simply refuse to pay. We disagree.
The parties have been free to negotiate on the issue of billing and the laws of contract are available to doctors performing IMEs and insurance companies scheduling them. In addition, as we noted above, the legislature has recently elected in Senate Bill 07-258 to address the fee schedule for expert witnesses, reviewer, and evaluators. We have reviewed the claimant's additional arguments and they do not alter our conclusions. We perceive no basis on which to interfere with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 21, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird
____________________________________ Thomas Schrant
PEDRO SALAS, 9595 N PECOS STREET #520, THORNTON, CO, 80216 (Claimant) GALLAGHER BASSETT SERVICES, INC., Attn: LAUREN JORDAN, PO BOX 4068, ENGLEWOOD, CO, 80155-4068 (Insurer)
BUESCHER, GOLDHAMMER, KELMAN DODGE, PC, Attn: SHELLEY P. DODGE, ESQ., 1563 GAYLORD STREET, DENVER, CO, 80206 (For Claimant)
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS, PC, Attn: C. SANDRA PYUN, 3900 E MEXICO AVENUE, SUITE 1300, DENVER, CO, 80210 (For Respondents)