Opinion
W.C. No. 4-540-459.
November 14, 2005.
FINAL ORDER
The respondents seek review of Administrative Law Judge Klein's (ALJ) pre-hearing order dated October 29, 2004, and his June 29, 2005 Order re: Claimant's Motion to Enforce Order regarding Dr. Roth's fees. These orders determined that the fees of respondent's medical expert are limited as enumerated in the Workers' Compensation fee schedule, and directed the expert to refund $14,246.30 to respondents, which represented the difference between what the expert was paid and what the fee schedule permits. The respondents contend, inter alia, that the ALJ erred by denying the medical expert due process of law and that the claimant does not have standing to raise the issue of the experts fees. We set the orders aside.
Dr. Roth was retained by the respondents as a medical expert. Dr. Roth was never joined as a party to this case. However, after ascertaining through deposition testimony the amount Dr. Roth had been paid, the claimant filed a motion to limit those fees to the amount permitted by the fee schedule, Rule of Procedure XVIII (F)(4), 7 Code Colo. Reg. 1101-3 at 112-113. The certificate of mailing on this motion does not include Dr. Roth, and the motion was considered at a pre-hearing conference in which Dr. Roth did not participate. Following the pre-hearing conference, the ALJ ruled in an order dated October 26, 2004, that the claimant had standing to raise the issue because "she is an intended beneficiary of the act." Further, the ALJ stated the expert's fees are governed by the fee schedule and there is no independent right to contract outside the schedule. To the contrary, the ALJ found that the rules are intended to make claims for compensation fair to both sides, and consequently, there is a reason to prevent one side from presenting a case the other side simply cannot afford to do. The ALJ ordered that the fees be "limited" to the fee schedule and directed Dr. Roth to "provide an accounting to claimant with delineation between deposition testimony, testimony preparation, report preparation, and travel." The certificate of service on this order does not include Dr. Roth's name.
Based on the above findings and apparently after reviewing the accounting, the ALJ in an order dated June 29, 2005, directed Dr. Roth to refund $14,246.30 to respondents which represented the difference between what Dr. Roth was paid and what the fee schedule permits. The certificate of service on this order does not include Dr. Roth.
The respondents contend the ALJ erred in granting the claimant's motion to restrict the witness fees paid to the respondents' medical expert. The respondents argue the fee schedule cannot be construed to preclude the respondents from negotiating whatever witness fees they wish to pay, and that to construe the rule otherwise would be inconsistent with § 8-42-101(3)(a)(I), C.R.S. 2005. The respondents further assert that the claimant does not have standing to raise the issue of fees to be paid to the respondents' expert, and that the claimant did not timely raise the issue. Finally, the respondents assert the ALJ did not have jurisdiction to consider Dr. Roth's fees and erred by not affording him an opportunity to be heard. We agree with respondents that Dr. Roth was not afforded due process protection and that the claimant lacked standing. It is therefore not necessary to rule on their other arguments.
I.
The Court of Appeals has recognized that a particular physician does not have a property right in providing medical care to a particular claimant. Thus, there is no due process right to a hearing before a change of provider may be ordered. See Carlson v. Indus. Claim Appeals Office, 950 P.2d 663 (Colo.App. 1997); see also Hall v. Indus. Claim Appeals Office, 74 P.3d 459 (Colo.App. 2003). However, under the Workers' Compensation Act, a medical provider is entitled to a hearing under certain circumstances, such as when payment of fees has been retroactively denied, see § 8-43-501(5)(b), C.R.S. 2005, or when the provider's accreditation has been revoked. See § 8-42-101(3.6)(g), C.R.S. 2005; Carlson v. Industrial Claim Appeals Office, supra. The circumstances in this case involve the retroactive denial of fees, and the ALJ's order directing Dr. Roth to refund $14,246.30 substantially affected his property rights. Accordingly, we conclude that Dr. Roth has a sufficient property interest under the present circumstances to be entitled to due process protections.
Such protections require that a person be given adequate notice of the proceeding and its nature, and a fair opportunity to be heard. Colorado Board of Medical Examiners v. Palmer, 157 Colo. 40, 400 P.2d 914 (1965). The record reveals that Dr. Roth received some notice of some of the proceedings since he appears to have produced an accounting of his fees, as directed by the ALJ, and there is an unclear description of some contact between the ALJ and Dr. Roth mentioned in the Preliminary Matters. However, it is not established when, and what notice Dr. Roth was given nor that he was advised of what was at stake. Sandos v. Colorado State Dept. Of Labor and Employment, 626 P.2d 715 (Colo.App. 1980) Under these circumstances, we cannot say that Dr. Roth was given adequate notice or an opportunity to be heard.
Moreover, Dr. Roth was never joined as a party to this case. Consequently, the ALJ had no jurisdiction to order Dr. Roth to refund $14,246.30 to the respondents, and any such order would have violated basic principles of due process. See Whiteside v. Smith, 67 P.3d 1240, 1248 (Colo. 2003) (fundamental elements of due process are opportunity to be heard at a meaningful time and in a meaningful manner); Adams v. Neoplan U.S.A. Corp., 881 P.2d 373 (Colo.App. 1993) (an attorney is not a "party" to the claim unless joined).
The claimant argues that the respondents, as the party who hired Dr. Roth, are the ones who failed to notify him of the challenge to his fees. There is no evidence in the record that the respondents are the agent or legal representative of Dr. Roth obligated to protect his interests. Further, there is reason to question how zealously the respondents can be expected to act in ensuring Dr. Roth's due process rights are protected, for if the ALJ's order is allowed to stand, they will receive a check for over $14,000 from Dr. Roth. Finally, without Dr. Roth as a party, there does not appear to be a justiciable controversy, i.e., a party seeking to establish a right and a party against whom the right is asserted. See Barker v. District Court, 199 Colo. 416, 609 P.2d 628 (1980).
II.
The respondents argue that the claimant does not have standing to raise the issue of the fee Dr. Roth charged as their retained expert. A party has standing if: (1) the party has alleged an actual injury from the challenged action; and (2) the injury affects a legally protected or cognizable interest. O'Bryant v. Public Utilities Commission, 778 P.2d 648 (Colo. 1989); Bradley v. Industrial Claim Appeals Office, 841 P.2d 1071 (Colo.App. 1992) The injury in fact requirement is satisfied if the party demonstrates that the activity complained of has caused, or has threatened to cause, injury to that party such that it can be said with fair assurance that there is an actual controversy for judicial resolution. Dunlap v. Colorado Springs Cablevision, 829 P.2d 1286 (Colo. 1992); Garman v. Regis, W.C. No. 3-718-863 (April 21, 1997) (upholding an award of interest on unpaid medical benefits from insurer where assignee of medical provider entered judgment against claimant for unpaid medical expenses); Dickson v. Pueblo Transportation Company, W.C. No. 3-777-995, et al (March 31, 1994) (claimant presented "injury in fact" where unpaid medical expenses caused her to go without medication). Once the injury in fact is demonstrated, the party must show that the injury is to a legally protected interest emanating from a constitutional, statutory, or judicially created rule of law that entitles the claimant to some form of judicial relief. Board of County Commissioners v. Bowen/Edwards Associates, 830 P.2d 1045 (Colo. 1992).
The claimant argues that she has standing and has suffered an "actual injury" because, by allowing insurance carriers to set the rates they pay experts, claimant faces the possibility of being charged the same rates by those experts, rates that the claimant cannot afford to pay. However, there is no evidence to support this argument, and we are not persuaded that this mere "possibility" amounts to an injury in fact. We find the authorities relied upon by the claimant to be factually inapposite. In our view, the potential for inflating the charge the claimant may have to pay an expert at some point in the future is too indirect to constitute an injury in fact. See Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977); see also Bradley v. Industrial Claim Appeals Office, supra (insurer had no standing to dispute an order of attorney fees apportioned from benefits to be paid to the claimant); Adams v. Neoplan U.S.A. Corp., supra (employer and insurer had no standing to contest an award of attorney fees entered against their attorney). For the same reason, we are not persuaded that the fees paid to Dr. Roth interfere with the claimant's ability to pursue benefits under the Workers' Compensation Act so as to constitute an injury in fact. As a result of this determination, we need not consider whether a legally protected or cognizable interest of the claimant was affected.
IT IS THEREFORE ORDERED that the ALJ's orders dated October 29, 2004 and June 29, 2005, are set aside.
INDUSTRIAL CLAIM APPEALS PANEL ____________________ Dona Halsey ____________________ Tom Schrant Christina Weber, Grand Junction, CO, Shiloh Homes, Littleton, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Joanna C. Jensen, Esq., Grand Junction, CO, (For Claimant).Douglas P. Ruegsegger, Esq., Denver, CO, (For Respondents).