Opinion
W.C. No. 3-969-031.
June 29, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied her claim for medical benefits and penalties. The claimant argues the ALJ denied due process by considering issues not raised for hearing, failed to consider pertinent evidence, and that some findings of fact are not supported by the evidence. The claimant also contends the ALJ erred in finding that a knee injury sustained on July 25, 2003, did not occur in the "quasi-course of employment." We affirm.
The claimant sustained a compensable neck injury in 1990 and underwent fusion surgery. Since that time the claimant has suffered chronic pain problems. At all relevant times the claimant's authorized treating physician (ATP) has been Dr. Roth.
The claimant sought compensation for an emergency room (ER) visit on July 17, 2003, and medical benefits for treeatment of the knee injury she sustained after an ER visit July 25, 2003. The claimant testified that she was given narcotic medications during the July 25 ER visit and this caused her to become drowsy. When the claimant got home from the ER visit her cat ran outside and the claimant fell fracturing her knee. On July 26 the claimant underwent surgical repair of the knee and incurred substantial medical expenses. The claimant theorized that the knee injury was compensable because it was caused by the narcotic medications given for treatment of the industrial injury and occurred in the quasi-course of employment.
The ALJ found the ER visit on July 17 was not authorized, reasonable or necessary for the treatment of the claimant's 1990 industrial injury. Therefore, he denied the claim for medical benefits. Relying on the July 17 ER records suggesting the claimant feigned respiratory distress and an April 30, 2003, report of Dr. Roth, the ALJ discredited the claimant's contention that her condition was emergent on July 17. Moreover, the ALJ credited the April 30 and July 30, 2003, reports of Dr. Roth indicating that the claimant's July 17 and July 25 visits to the ER were not reasonable and necessary to treat the claimant's chronic pain. The April 30 report noted the claimant had visited the ER 12 or 13 times since the beginning of the year and had most recently "demanded" Dilaudid and Phenergan. The July 30 note states that the claimant was receiving significant amounts of appropriate "narcotic analgesics" for treatment of pain, that Dr. Roth believed the claimant was obtaining narcotics at the ER in violation of her "narcotic contract," and that Dr. Roth would not support further ER visits to treat chronic pain. Dr. Roth also stated that if the claimant had blood pressure problems "treatment should be directed at blood pressure elevations and not pain."
The ALJ also denied the claim for the knee injury. In this regard the ALJ found the ER visit on July 25 was not authorized, reasonable or necessary to treat the 1990 industrial injury, and therefore did not occur in the "quasi-course of employment." This finding was largely based on the same evidence discussed above. Moreover, the ALJ found no persuasive medical evidence that the claimant required assistance to stand after release from the ER, but instead noted the claimant was released. Finally, the ALJ discredited the claimant's testimony concerning the alleged mechanism of the knee injury finding it was inconsistent with the report she gave the ER physician on July 26.
I.
On review, the claimant first contends the ALJ erred in denying the claim for medical benefits associated with the July 17 ER visit and the July 26 knee surgery because the respondents failed to comply with the provisions of Rule XVI(K) and (L), 7 Code Colo. Reg. 1101-3 at 79-82. According to the claimant, after being provided with the bills for the contested medical treatment the respondents failed to take the mandated procedural steps to contest the bills. Therefore, the claimant reasons the bills became due and payable within 30 days by operation of law. Rule XVI (K)(1)(b). Moreover, the claimant asserts the ALJ should have assessed penalties under § 8-43-401(2)(a), C.R.S. 2004, for willfully stopping payment of medical expenses. (Claimant's Brief at Pp. 4-6). We find no error.
The claimant bore the burden of proof to establish her right to medical benefits, and to prove entitlement to a penalties under § 8-43-401(2)(a). Section 8-43-201, C.R.S. 2004; Pioneers Hospital v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 04CA0839, April 7, 2005). In order to prove entitlement to a penalty under § 8-43-201(2)(a) the claimant was required to prove a willful delay or stoppage of payment after the submission of a medical bill, and that such stoppage was "wrongful." See Pena v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0387, November 18, 2004) (as modified May 26, 2005); Miller v. Industrial Claim Appeals Office, 49 P.3d 334 (Colo.App. 2001).
Initially, we agree with the respondents that we need not consider this argument because it was first advanced on appeal. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002); Kuziel v. Pet Fair, 948 P.2d 103 (Colo.App. 1997). Nowhere in the claimant's application for hearing did she assert that the respondents violated Rule XVI with respect to the July 17 ER visit and July 26 surgical expenses, despite the fact that the application specifically mentions Rule XVI with respect to certain treatment recommendations of Dr. Roth and failure to provide home exercise equipment. Moreover, review of the claimant's post-hearing position statement reveals no argument whatsoever that the disputed bills became due and payable by operation of Rule XVI.
In any event, the record does not contain evidence to support a finding that the respondents violated Rule XVI. In fact the claimant points to no such evidence in the record, but attempts to shift the burden of proof by arguing that the insurer did not offer any evidence that Rule XVI "had been followed." (Claimant's Brief at P. 6). Because the claimant had the burden of proof to establish entitlement to benefits and a penalty under § 8-43-401(2)(a), the claimant had the burden to prove the respondents failed to comply with the rule. Pioneers Hospital v. Industrial Claim Appeals Office, supra. The existence of evidence that bills were submitted and not paid falls far short of establishing that the respondents failed to comply with the technical requirements for contesting payment under Rule XVI.
II.
The claimant next contends she was denied due process because she did not receive adequate notice of issues adjudicated by the ALJ. The claimant first contends she was not notified "prior to July 30, 2003 that her ER visits would not be `authorized' by respondents and Dr. Roth." The claimant further asserts that she was not notified that the ALJ would consider whether the July 25 ER visit was authorized. We find no error.
As the claimant argues, due process guarantees that she will be apprised of the evidence to be submitted and considered, afforded a reasonable opportunity to present evidence and confront adverse evidence, and given an opportunity to make argument concerning her legal position. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Here, the respondents denied liability for the disputed medical benefits and the claimant had the burden of proof to demonstrate entitlement. Therefore, the claimant was required to prove that the disputed treatment was authorized as well as reasonable and necessary. See Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002); Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993).
The claimant necessarily recognized the requirement to prove both authorization and reasonableness and necessity of medical benefits because on her application for hearing these issues were checked as issues to be determined at the hearing. The claimant endorsed Dr. Roth as a witness, as did the respondents. Finally, the claimant herself produced Dr. Roth's July 30 report as an exhibit. Thus, the claimant received sufficient notice that the issue of authorization for ER visits would be considered and that Dr. Roth's report would be considered if relevant to that issue.
The claimant also asserts she did not receive notice that the ALJ would consider whether her visit to the ER on July 25 was authorized. However, we agree with the respondents that this issue was implicit in her assertion that the knee injury was sustained in the quasi-course of employment. Injuries sustained as a consequence of obtaining authorized medical treatment are compensable under the quasi-course of employment doctrine because the employer's provision of treatment and the claimant's duty to cooperate with it render the treatment an implied part of the employment contract. Turner v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA1958, December 2, 2004); Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993). However, injuries sustained as a consequence of obtaining unauthorized treatment are not sustained in the quasi-course of employment because the employer is not required to provide such treatment and the claimant is not required to cooperate with it. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
The claimant's theory of the case was that the drugs administered in the ER on July 25 caused her to fall and injure her knee, thereby triggering compensability under the quasi-course of employment doctrine. This theory necessarily required the claimant to prove the July 25 treatment was authorized. Therefore, the ALJ did not deny the claimant due process by considering a factual issue the proof of which was a predicate to the claimant's legal theory.
III.
The claimant contends the record does not support the ALJ's determination that the treatment provided on July 17 and July 25 was not authorized. The claimant asserts that the ALJ "ruled by inference" that Dr. Roth's letter of July 30 "deauthorized" ER treatment. The claimant also argues the ALJ applied the wrong standard because he did no consider whether the treatment ER visits were prompted by a bonafide emergency for which no authorization is needed. We disagree with these arguments.
An ATP may "authorize" treatment by making a referral in the normal progression of medical care. Whether such a referral has been made, and if so, the scope of the referral are questions of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Gamboa v. ARA Group, Inc., W.C. No. 4-106-924 (November 20, 1996). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004.
The substantial evidence standard of review requires us to consider the record in a light most favorable to the prevailing party, defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and the plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact, and we may consider findings necessarily implied by the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
In our opinion the ALJ's order implicitly rejects the assertion that Dr. Roth "authorized" ER visits in the sense that he made a blanket referral for such treatments. Indeed, as the ALJ found, on April 30 Dr. Roth noted that Dr. Kaiser at Rose Medical Center wanted him to "be aware" that the claimant had visited the ER 12 or 13 times and was demanding narcotic medication. On May 6 Dr. Roth "explained" to the claimant that ER physicians "do in general become frustrated with chronic pain patients frequently requesting additional narcotic medications." In the July 30 letter Dr. Roth stated the claimant's prescribed medications were, in his opinion, sufficient to treat her pain, and the claimant was violating her narcotic treatment contract by obtaining drugs from the ER physicians. Thus, although Dr. Roth was aware the claimant went to the ER on some occasions, the ALJ was certainly not required to conclude that all of these trips were the result of a general referral by which Dr. Roth intended to confer unlimited authority on the ER to treat the claimant's chronic pain.
Moreover, the ALJ explicitly rejected the claimant's argument that the care rendered on July 17 was authorized under the emergency doctrine. In Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990), the court held that in cases of medical emergency the claimant need not seek authorization from the employer or insurer before obtaining medical treatment from an unauthorized provider. The question of whether a bona fide emergency exists is one of fact and is dependent on the circumstances of the particular case. Therefore, we must uphold the ALJ's determination if supported by substantial evidence.
There is substantial evidence to support the ALJ's finding that the ER visit on July 17 was not emergent. The record documents the belief of a respiratory technician that the claimant was feigning the respiratory problems she reported on July 17. Also, the claimant's assertion notwithstanding, there is ample evidence the claimant did not go to the emergency room for treatment of emergent pain, but instead to obtain additional narcotic medications. The ALJ's meticulous findings document numerous ER visits in a short span of time, the suspicions of the ER physicians, and the opinions of Dr. Roth himself.
For many of the same reasons, the record supports the ALJ's implicit finding that there was no emergency on July 25. Although the ALJ did not specifically state that there was no emergency, he did find the treatment was not authorized. In our opinion this necessarily encompasses a rejection of the claimant's emergency theory, particularly because the ALJ cited Dr. Lohman's report. Dr. Lohman noted the claimant returned to the ER on July 25 for "the exact same symptoms" exhibited on previous ER appearances, including difficulty breathing. Dr. Lohman noted the claimant refused IM pain medication and desired IV medication. Dr. Lohman also noted that she tried to reach Dr. Roth to "establish a protocol" for handling the claimant's ER visits.
We reject the claimant's assertion that the ALJ failed to consider whether the treatment she received on July 17 and July 25 was the result of a bona fide emergency. Concerning July 17 the ALJ expressly discredited the claimant's testimony that there was a genuine emergency, finding instead that the ER visit was the result of the claimant's desire to obtain unnecessary narcotics in violation of her contract with Dr. Roth. Although the ALJ did not expressly reject the claimant's testimony concerning the alleged emergency on July 25, he did find the treatment violated the narcotic contract and was not reasonably necessary in light of the claimant's history of ER visits. We infer from the findings that he implicitly rejected the claimant's contention that there was a bonafide emergency on July 25.
IV.
The claimant asserts the record lacks substantial evidence to support the ALJ's finding that she engaged in "drug seeking" behavior. The claimant first argues this issue was not endorsed for hearing. The ALJ also objects that the narcotics contract was not introduced in evidence, and that the ALJ "ignored" evidence that the claimant's blood pressure was controlled by the Dilaudid she received at the ER.
We reject the contention that the ALJ could not consider the issue issue of "drug seeking" behabvior because the respondents did not "endorse" it for hearing. The claimant bore the burden of proof to show the disputed treatment was reasonable and necessary. Section 8-43-201. Whether the evidence demonstrates that the proposed treatment was reasonable and necessary is a question of fact for the ALJ. Kroupa v. Industrial Claim Appeals Office, supra. Consequently, the respondents' evidence that the claimant's visits to the ER were for the purpose of "drug seeking" constituted evidence tending to refute the claimant's contention that the ER visits were reasonable and necessary, not an affirmative defense which the respondents were required to plead and prove. See Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001) (respondents' failure to plead argument that permanent total disability was caused by intervening event did not constitute waiver of the argument because claimant bore the initial burden of proof to establish that permanent total disability was caused by the industrial injury).
Neither do we agree with the assertion that the respondents' failure to produce the narcotics contract as evidence was fatal to considering Dr. Roth's reference to the contract. Medical records and physicians' reports may be introduced without formal identification if relevant to any issue. Section 8-43-210, C.R.S. 2004. Dr. Roth's July 30 letter makes reference to the existence of the narcotics contract, and states the claimant was in violation of it. The claimant did not object to admission of this document or otherwise seek to limit its scope; therefore she may not now object that the ALJ considered the letter and drew a plausible inference from it. C.R.E. 103(a); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995).
Contrary to the claimant's assertion, the ALJ did not fail to consider the claimant's argument that the ER visits were principally for treatment of her blood pressure which, the claimant contends, increases with pain. Rather, the ALJ inferred from Dr. Roth's July letter that the blood pressure problem could be treated without the necessity of ER visits to obtain narcotic pain medication. (Finding of Fact 18). This inference is supported by the evidence that the claimant was feigning or exaggerating her symptoms as demonstrated by the questionable respiratory problem on July 17, and Dr. Roth's April 30 observation that the claimant's respiratory problems diminished when she was told she would receive Dilaudid. (Finding of Fact 12).
Dr. Roth's April 30 report also refutes the claimant's assertion that Dr. Roth did not prescribe Dilaudid until after the July 25 ER visit. This contention is also negated by a November 15, 2000 ER report in which the claimant stated that Dr. Roth had given her a variety of medications including Dilaudid.
It is true, as the claimant argues, that Dr. Roth gave testimony in March 2003 which might support a contrary conclusion. However, in light of subsequent events and the July 30 report the ALJ resolved any inconsistency in the respondents' favor, and we may not interfere with that credibility determination. Insofar as the claimant makes other arguments, they are factual in nature and without merit.
V.
Finally, the claimant asserts the ALJ erred in finding the knee injury was not compensable under the quasi-course of employment doctrine. As determined above, the evidence supports the ALJ's finding that the treatment, including the medication, which the claimant received on July 25 was not "authorized treatment." Therefore, the ALJ correctly ruled that any consequences of the treatment, including the fall, are not compensable under the quasi-course theory. Schrieber v. Brown Root, Inc., supra.
Moreover, the ALJ was not persuaded that the claimant's fall occurred in the manner and for the reasons she described. The ALJ noted the claimant's hearing testimony concerning the mechanism of injury was inconsistent with her statements described in the July 26 ER report. Consequently, the ALJ found the claimant's testimony "concerning the circumstances of the fall" was not credible. Therefore, the ALJ determined the claimant failed to carry the burden of proof to show that the medications she received were the cause of the fall. The ALJ's factual determination must be upheld because it is supported by the evidence. See Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002) (question of whether particular condition was caused by industrial injury or intervening event is one of fact for determination by ALJ).
IT IS THEREFORE ORDERED that the ALJ's order dated February 16, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Judi Timko, General Delivery, Maywood, NE, Cub Foods, Aurora, CO, Liberty Mutual Insurance Company, Irving, TX, Jennifer E. Bisset, Esq., Denver, CO, (For Claimant).
D. Clay Thornton, Esq., Denver, CO, (For Respondents).