Opinion
W.C. No. 4-427-756
November 16, 2000
FINAL ORDER
Dr. Michael Janssen seeks review of an order of Administrative Law Judge Martinez (ALJ) ordering him to repay the claimant $558.22. Dr. Janssen contends the claimant agreed to pay this amount for the doctor's preparation for a deposition, and that the ALJ lacked authority to order the repayment. We affirm.
In January 2000, the claimant applied for a hearing on the issues of medical benefits, change of physician, and penalties. The matter was set for a hearing on April 6, 2000. Prior to the hearing, the respondent set Dr. Janssen's disposition for April 5, 2000. On March 14, 2000, counsel for the claimant wrote a letter requesting Dr. Janssen to review the contents of another physician's deposition in preparation for the April 5 deposition. On March 17, 2000, Dr. Janssen, by facsimile transmission, indicating that he would charge $900 for reviewing the other physician's deposition, and that pre-payment of that amount was necessary. By letter dated March 24, 2000, claimant's counsel sent Dr. Janssen a check for $900, but stated counsel's opinion that the correct reimbursement rate was established by administrative regulations governing workers' compensation. The letter also stated counsel's intent to request an ALJ to issue an order "establishing the appropriate rate of reimbursement" for reviewing the deposition.
On April 7, 2000, the claimant filed a Motion to Establish Payment Amount to Michael E. Janssen, D.O. Relying principally on the Medical Fee Schedule, Rule of Procedure XVIII (F) (4) (a) and (b), 7 Code Colo. Reg. 1101-3 at 105, the claimant argued Dr. Janssen should be paid $341.78 for the 1 1/2 hours he spent reviewing the deposition [35 x $6.51 x 1.5]. On April 20, 2000, the ALJ entered an order determining that Dr. Janssen is entitled to $341.78 as compensation for reviewing the deposition. On May 19, 2000, the claimant filed a Motion for Order for Repayment by Michael Janssen, D.O. In this motion the claimant requested the ALJ to order Dr. Janssen to repay the claimant $558.22, representing the difference between $900 and the compensation rate set by the ALJ on April 20.
On June 7, 2000, the ALJ ordered Dr. Janssen to pay the claimant $558.22. On June 27, 2000, Dr. Janssen filed a motion to dismiss for lack of personal jurisdiction, subject matter jurisdiction and due process, or in the alternative, a petition for review. The ALJ denied the motion to dismiss on July 17, 2000, and the matter was transmitted for consideration of Dr. Janssen's petition to review.
I.
On review, Dr. Janssen contends that a "fair construction of the agreement" between himself and counsel for the claimant, established by documents in the record, is that Dr. Janssen would not agree to review the deposition unless the claimant paid $900. Further, Dr. Janssen argues that counsel for the claimant "accepted these terms by tendering the requested $900, subject only to any applicable workmen's compensation rule or regulation." According to Dr. Janssen, this "agreement" is enforceable since there is no rule or regulation establishing the rate of compensation for deposition preparation.
Interpretation of a contract is a matter of law unless the terms of the agreement are ambiguous. Three G Corp. v. Daddis, 714 P.2d 1333 (Colo.App. 1986). Here, the unambiguous terms of the relevant documents establish the only agreement between the parties was that the claimant would pay $900 to Dr. Janssen for review of the transcript, with the reservation the claimant was disputing the charge and would request an ALJ to establish the correct rate. Thus, insofar as Dr. Janssen can be understood to assert there was a contract for the payment of $900, the record does not support this contention. Rather, there was an agreement to advance $900 subject to a quasi-judicial determination of the parties' responsibilities under any applicable statute or regulation.
II.
Dr. Janssen's central contention is that, contrary to the ALJ's conclusion, there is no statutory or regulatory authority establishing the rate of compensation to be paid for a physician's time spent in preparation for a deposition. Dr. Janssen argues that Rule XVIII (F) (4) regulates the amount a physician may charge for actual deposition testimony, but does not control the amount the physician may charge for time spent in preparing for the deposition. Rather, Dr. Janssen argues a physician "is not limited in what he may charge by agreement with counsel." We disagree with this argument.
Section 8-42-101(3)(a)(I), C.R.S. 2000, authorizes the Director of the Division of Workers' Compensation (Director) to establish a fee schedule for the compensation of physicians for medical "treatment" rendered under the Act. The physician may not charge the claimant for services "which are or may be in excess" of the fee schedule, unless approved by the Director. Rule XVIII (F) (4) was adopted by the Director under the authority of § 8-42-101(3)(a)(I), and the validity of this rule is not challenged in Dr. Janssen's appeal. See Rule of Procedure XVIII (A), 7 Code Colo. Reg. 1101-3 at 87.
The pertinent provisions of Rule XVIII (F) (4) are as follows:
4. DEPOSITION OR HEARING TESTIMONY — FEES
a. Payment for a physician's testimony at a deposition or hearing shall not exceed 35 RVU per hour times the Medicine/EM conversion factor ($6.51), billed in 0.5 hour increments. Calculation of the physician's time shall be "portal to portal."
b. DEPOSITION PARAMETERS:
The physician may request a full hour deposit in advance in order to schedule the deposition.
By prior agreement with the deposing party, the physician may charge for preparation time or reviewing and signing the deposition.
The physician may refund to the deposing party any portion of an advance payment in excess of time actually spent preparing and/or testifying.
The rules for interpretation of administrative regulations are essentially the same as those governing the interpretation of statutes. Thus, words and phrases in the regulation should be given their plain and ordinary meanings. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo.App. 1995). However, to the extent there is some ambiguity, the regulation should be read in its entirety so as to give consistent, harmonious, and sensible effect to all of its parts. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991). Rules relating to the same subject matter are deemed to be in pari materia and must be construed together . McFarlen v. Eckhart, 878 P.2d 11 (Colo.App. 1993). Forced, strained or subtle interpretations should be avoided. See Miller v. Industrial Claim Appeals Office, 985 P.2d 94 (Colo.App. 1999).
Dr. Janssen suggests an interpretation of Rule XVIII (F) (4) which would treat the second paragraph of subsection (4) (b) as authorizing physicians to charge any mutually agreeable rate for time spent in preparation for a deposition. However, we conclude that such an interpretation is contrary to the overall regulatory scheme established by the rule.
Admittedly, when viewed in isolation, the second paragraph of subsection (4) (b) might be read to mean that the rate to be charged for preparation time is a matter for "agreement" between the physician and the deposing party. Conversely, when viewed in context of the entire rule, the paragraph might be read to mean that time spent preparing for a deposition is subject to the same limitation placed on compensation for deposition testimony, but the physician is not free to charge for preparation absent a "prior agreement" with the deposing party. We conclude the second interpretation is the more consistent and harmonious of the two possible readings.
Viewing the regulation in its entirety, subsection (4) (a) establishes a firm hourly rate which a physician may charge for testimony at a hearing or deposition. This subsection also creates a rule requiring payment for the physician's travel time to the hearing or deposition. The first paragraph of subsection (4) (b) permits the physician to request "a full hour deposit" prior to scheduling the deposition. Clearly, the "full hour deposit" refers to the hourly rate for deposition testimony established by subsection (4) (a). Similarly, the third paragraph of subsection (4) (b) permits the physician to refund to the deposing party "any portion of an advance payment in excess of time actually spent preparing" or testifying at the deposition. The third paragraph obviously refers to the "deposit" contemplated by the first paragraph of subsection (4) (b), which in turn refers to the hourly rate established by subsection (4) (a). Consequently, it would appear anomalous to presume that the second paragraph of subsection (4) (b) contemplates that the "charge for preparation time" is independent of the rate set for deposition testimony in subsection (4) (a), when the first and third paragraphs of subsection (4) (b) implicitly refer to subsection (4) (a).
Moreover, we note the overall heading for subsection (4) is "Deposition or Hearing Testimony — Fees." The heading for subsection (4) (b) is "Deposition Parameters." Thus, it may be inferred the Director views time spent in preparation for a deposition as part of the overall deposition process, and subject to the same rate limitation as deposition testimony itself. Put another way, for purposes of the regulation, "deposition preparation" is a subcategory of "deposition testimony" because it is within the scope or "parameters" of the deposition. Dr. Janssen presents no compelling theory as to why the Director would choose to limit the rate to be charged for deposition testimony, while permitting physicians to negotiate substantially higher rates for time spent preparing for a deposition.
Thus, we reject Dr. Janssen's argument that Rule XVIII (F) (4) contemplates that physicians are free to charge whatever the market may bear when preparing for a deposition. Rather, as we understand subsection (4), physicians may charge for time spent in preparation for a deposition if they reach a prior agreement with counsel. However, the "charge for preparation" is subject to the same rate limitation as charges for testimony. Thus, the ALJ did not err in ordering Dr. Janssen to repay the claimant.
Insofar as Dr. Janssen argues the rule is unconstitutional, we lack jurisdiction to consider the issue. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
III.
We previously issued an Order to Show Cause why the appeal should not be dismissed for lack of a final order. We now discharge the order. In the absence of any argument to the contrary, we are persuaded by Dr. Janssen's argument that fees for deposition preparation and testimony constitute a form of "medical benefit" authorized by § 8-42-101(3)(a)(I) and the Medical Fee Schedule. Thus, the ALJ's order requires Dr. Janssen to pay a form of "benefit" for purposes of § 8-43-301(2), C.R.S. 2000.
Insofar as Dr. Janssen makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated June 7, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
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. 2000. 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 decision were mailed November 16, 2000 to the following parties:
Linda Zarlingo, 1501 Railroad Ave., #38, Rifle, CO 81650
Safeway, 6900 S. Yosemite, Englewood, CO 80112-1412
Michael E. Janssen, D.O., 8515 Pearl St., #350, Thornton, CO 80229
Christopher Seidman, Esq., P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondent)
Burton I. Wherry, Esq., and Edward P. Carlstead, Esq., 425 S. Cherry St., #920, Denver, CO 80246 (For Dr. Janssen)
BY: A. Pendroy