Opinion
W.C. No. UR 2007-0014.
January 20, 2009.
FINAL ORDER
The claimant seeks review of orders of Administrative Law Judge Krumreich (ALJ). In an order dated September 2, 2008 the ALJ affirmed the order of the Director of the Division of Workers' Compensation (Director), which had determined that the claimant had failed to overcome by clear and convincing evidence the medical utilization review (MUR) panel's recommendation to change providers. Another order of the ALJ, dated October 14, 2008, denied the claimant's motion for rescission of a procedural order of October 1, 2008 that had corrected the identification of the appealing party of the Director's MUR order. We affirm both orders.
The ALJ made the following findings of fact. The claimant sustained a compensable injury and the respondents admitted the claimant was permanently and totally disabled. Dr. Hall provided medical treatment to the claimant on a continuing basis since 1996. One of the diagnoses made by Dr. Hall was chronic narcotic use. Dr. Hall's reports documented numerous side effects the claimant experienced as related to the use of high dose narcotics. The claimant's function was not increased as a result of the chronic use of high dose narcotic pain medications prescribed by Dr. Hall. The respondents requested a MUR. The claimant argued before the Director that the case report submitted with the MUR and the entire MUR physician panel should be disqualified due to conflicts of interest. The claimant's essential argument is that the physicians were Pinnacol physician advisors and members of Pinnacol SelectNet. The Director in an order dated September 4, 2007 found that there was no statutory or legal basis for granting the relief requested by the claimant and ordered the MUR to proceed. The MUR committee unanimously found that the care of Dr. Hall was not reasonably appropriate according to accepted professional standards. The MUR committee unanimously found that Dr. Hall should not continue to treat the claimant. The Director issued a Utilization Review Order dated February 15, 2008 and found that a change of provider should be ordered. The ALJ found that the claimant had failed to overcome, by clear and convincing evidence, the MUR panel's findings and the Director's order directing a change in provider. This appeal by the claimant followed.
I.
The claimant contends that the ALJ erred in upholding the Director's order because the MUR panel members and the physician who prepared the case report submitted with the MUR request by the insurer were members of Pinnacol's SelectNet. According to the claimant, the panel members and the reporting physician are presumptively disqualified based upon a conflict of interest or the appearance of a conflict of interest. We are not persuaded that the ALJ erred.
Initially, we reject the claimant's contentions that are not matters of record, such as the allegation of the use of the MUR proceeding as a settlement tool or the allegation that the new designated physician has refused the assignment. Our review is restricted to the record before the ALJ. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Lewis v. Scientific Supply Co. 897 P.2d 905 (Colo.App. 1995); Voisinet v. Industrial Claim Appeals Office, 757 P.2d 171 Colo. App. 1988); Subsequent Injury Fund v. Gallegos, 746 P. 2d 71 (Colo.App. 1987).
We reject the claimant's argument that the ALJ erred because the physician who prepared the case report submitted with the MUR request by the insurer was a member of Pinnacol's SelectNet or a physician advisor and so presumptively disqualified based upon a conflict of interest or the appearance of conflict of interest. Section 8-43-501(2)(b), C.R.S. 2008 sets forth the procedure applicable to insurer's MUR request. Section 8-43-501(2)(b) states that prior to submitting a request for a utilization review the insurer or claimant shall hire a licensed medical professional to review the services rendered in the case. A report of the review shall be submitted with all necessary medical records, reports, and the request for utilization review. In Rook v. Industrial Claim Appeals Office 111 P.3d 549 (Colo.App. 2005), the court determined there was no statutory violation based on the fact that the nurse who prepared the chronology may have been the insurer's employee. Therefore, we perceive no statutory violation here based on the allegation that the physician who prepared the case report may have been a member of Pinnacol's SelectNet.
We next address the claimant argument that physicians who are members of Pinnacol's SelectNet are presumptively disqualified from serving on the MUR panel when Pinnacol has requested the MUR. We first note that the Division of Workers' Compensation (Division) has promulgated rules to implement and establish procedures for the MUR program. As relevant here, W.C. Rule of Procedure 10-5, 7 Code Colo. Regs. 1101-3 at 38, deals with the selection of the utilization review committee members. Rule of Procedure 10-5 (E) provides that each party to the case will receive written notice of the names of the committee members and may submit in writing any allegation that a committee member has a conflict and should be removed from the committee. A conflict will be presumed to exist when the provider under review and a member of the review committee have a relationship, which involves a direct or substantial financial interest. Rule of Procedure 10-5(E) provides the following guidelines, which apply to any allegations of conflict involving a MUR physician:
(1) Direct or substantial financial interest is a substantial interest which is a business ownership interest, a creditor interest in an insolvent business, employment or prospective employment for which negotiations have begun, ownership interest in real or personal property, debtor interest or being an officer or director in a business.
(2) The relationship will be reviewed as of the time the utilization review is being conducted. Relationships in existence before or after the review in and of themselves will have no bearing, unless a direct or substantial financial interest is raised at the time of the utilization review.
(3) Being members of the same professional association or medical group, sharing office space or having practiced together in the past are not the types of relationships which will be considered a conflict, absent a direct or substantial financial interest.
(4) Any provider who has provided services to the claimant in the case for which the utilization review has been requested, or who has any type of personal or professional relationship with the claimant, will not be allowed to serve on the utilization review committee.
(5) This rule is not intended as an opportunity to conduct discovery. Depositions, interrogatories or any other type of discovery will not be permitted in order to make determinations as to whether a conflict exists.
Allegations of conflicts of interest resulting from a direct or substantial financial interest by physicians expressing opinions involving disputes under the Workers' Compensation Act has recently been dealt with by the Colorado Court of Appeals in Benuishis v. Industrial Claim Appeals Office 195 P.3d 1142 (Colo.App. 2008), cert. denied, (Colo. Nov. 24, 2008) (No. 08SC665). Benuishis involved a Division-sponsored independent medical examination (DIME) rather than a MUR. In Benuishis, as here, the allegation was that the physician performing the DIME had a conflict of interest because of the physician's connection with the insurer as a SelectNet member and physician advisor. In Benuishis, the rule dealing with conflicts involving DIME physicians was W.C. Rule of Procedure 11-2(H), 7 Code Colo. Regs. 1101-3 at 43. We note that the three guidelines for determination of a conflict for a DIME physician are the same as the first three guidelines for determination of a conflict for a MUR physician. Benuishis held that the regulation defining conflicts of interest and the selection of a physician to perform a DIME did not, in and of itself, prohibit a physician who is a contracted medical provider or physician advisor with an insurance company from performing an DIME in a case involving that insurance company. We do not see how a different result can be reached here. Therefore, we do not agree with the claimant that members of Pinnacol's SelectNet are presumptively disqualified from serving on the MUR panel based upon conflict of interest when the MUR involves Pinnacol as the insurer.
We do note that Rule 10(5)(E) does provide two additional guidelines for conflicts involved with a MUR. Rule 10(5)(E)(4) additionally provides that review by a physician who has provided services to the involved injured worker will not be allowed to serve on the MUR committee. This section of the rule is not applicable to the present case. However, it is also additionally provided in rule of procedure 10-5(E)(5) that the rule is not intended as an opportunity to conduct discovery and that depositions, interrogatories or any other type of discovery will not be permitted in order to make determinations as to whether a conflict exists. The claimant argues that Rule 10-5(E)(5) is inherently unfair because it deprives him of due process in the MUR process as he is denied the opportunity of exploring, through discovery, the relationship between the MUR panel physicians and the insurance carrier that requested the MUR. We are not persuaded that the ALJ erred in affirming the Director's order, which had adopted the MUR panel's finding.
We first note that to the extent the claimant's due process argument constitutes a facial attack on Rule of Procedure 10-5(E), we lack jurisdiction to address such a constitutional challenge. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971); Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995). Further, in Colorado Compensation Ins. Authority v. Nofio 886 P.2d 714 (Colo. 1994), the Supreme Court of Colorado addressed the issue of whether a claimant in a workers' compensation matter is entitled to a de novo hearing after a medical utilization review results in an order changing his health care provider and retroactive denial of payments for medical services rendered. The court determined that the claimant lacked a protected property interest in receiving medical care from a particular provider or in receiving a certain type of treatment. Therefore, the court determined there was no need to address any due process claims raised by the claimant. In addition, a workers' compensation claimant does not have a property interest in receiving medical care from a particular provider, and a particular physician does not have a property right in providing medical care to a particular claimant. Absent circumstances involving retroactive denial of fees or revocation of the provider's accreditation, there is no due process right to a hearing before a change of provider may be ordered in a MUR hearing. Rook v. Industrial Claim Appeals Office 111 P.3d 549 (Colo.App. 2005). Here the only issue was the ALJ's affirmance of the Director's MUR order that had directed a change of physician be made. Therefore, we are not persuaded to interfere with the ALJ's order because of the claimant's allegations of deprivation of due process.
Further, a party's right to procedural due process is met if the party is provided with notice and an opportunity to be heard. Public Utils. Comm'n v. Colorado Motorway, Inc., 165 Colo. 1, 10, 437 P.2d 44, 48 (1968). The essence of procedural due process is fundamental fairness. City County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). In our opinion, the claimant here was not denied due process.
Pursuant to Rule 10-5, the Director, with input from the Medical Director, appoints appropriate peer professionals to serve on the utilization review committee. Pursuant to Rule 10-5 after the members of the utilization review committee have been established, the parties to the MUR are given written notice of the names of the committee members. Within ten days of receiving the written notification, any allegation that a committee member has a conflict and should be removed from the committee must be submitted in writing to the medical utilization review coordinator, setting forth the basis for the alleged conflict.
Here the respondents filed a request for a MUR and provided a medical record review and case report. On July 31, 2007, the Division notified the parties of the names of the proposed members of the panel and pursuant to the rule asked the parties to notify the MUR coordinator whether a conflict of interest existed. The claimant on August 7, 2007 responded generally objecting to any physician who was a part of Pinnacol's Select Net and asked the Division to take steps to assure that no such physician would ever serve on the panel. A utilization review order was issued on February 15, 2008. In that Order the Director noted the Panel Members had unanimously found the provider's care was not reasonably appropriate and had recommended a change of provider be ordered. The Director ordered that a change of provider be made in accordance with § 8-43-501. The claimant requested that the utilization review order be stricken because of the allegation that the membership of the MUR Panel created a conflict of interest and that his request to excluded members of Pinnacol's SelectNet had not been addressed. On March 10, 2008 the Director ordered that the utilization review order would be held in abeyance pending written argument from the parties concerning whether a conflict existed with any of the panel members.
The respondents filed a position statement citing a number of Panel orders rejecting claims of conflict of interest simply because of the physician's connection with Pinnacol's SelectNet or his or her acting as a Pinnacol physician advisor. See Ruff v. City of Manassa, W.C. No. 4-446-932 (March 21, 2008); Benuishis v. Cheyenne Mountain Zoological Society, W.C. No. 4-312-807 (February 23, 2007), aff'd sub nom. 195 P.3d 1142 (Colo.App. 2008); Robertson v. Chicago Creek Roads, Inc., W.C. No. 4-388-293 (April 3, 2001). The claimant also filed a pleading citing the Panel's order of remand in Pinnacol v. Dickey Concerning Care Provided by Dr. Rook, U.R. No. 00-3, (April 9, 2001), arguing that the Director had not established any protocol for screening potential conflicts of interest in selecting utilization review panel members. We note that in Dickey, unlike the situation here, the parties were apparently not notified of the identity of the MUR panel members until their reports were complete and the Director issued the order for a change of provider. We note that former W.C. Rule of Procedure XV(F), 7 Code Colo. Reg. 1101-3 at 67, in effect at the time of the decision in Dickey, did not contain the provision for the notification of the parties of the membership of the MUR committee and the right to provide written notification of any alleged conflict, which was made effective on January 1, 2006. W.C. Rule of Procedure 10-5(E), 7 Code Colo. Reg. 1101-3 at 38 (1/1/06). Here the parties to the MUR were given written notice of the names of the committee members and allowed ten days to contend that a committee member had a conflict. In addition the Director also ordered that the utilization review order held in abeyance pending written argument from the parties concerning whether a conflict existed with any of the panel members.
On April 10, 2008, the Director, after being advised by the parties' positions, entered an order determining that the March 10, 2008 order holding the utilization review in abeyance was no longer in effect. The claimant filed an appeal of the Director's MUR Order issued February 15, 2008. The ALJ, after reviewing the extensive record, entered the September 2, 2008 order under consideration here.
The claimant's position, beginning with his letter of August 7, 2007, is that he objected to any physician who was a part of Pinnacol's SelectNet taking part in the MUR and asked the Division to take steps to assure that no such physician would serve on the panel. The claimant was given several opportunities to be heard on his objection to physicians who were part of Pinnacol's SelectNet. The claimant also asserts that he has been denied due process because he has not been allowed to explore whether the physicians who participated in the MUR were part of Pinnacol's SelectNet.
However, in our opinion, given the court's decision in Benuishis v. Industrial Claim Appeals Office, we do not agree with the claimant that members of Pinnacol's SelectNet are presumptively disqualified from serving on the MUR panel based upon a conflict of interest. Cf. Benuishis v. Industrial Claim Appeals Office, Co. 08SC665 (Colo. Nove. 24, 2008) (petition for writ of certiorari denied, but J. Bender would grant as to whether performance of DIME is quasi-judicial function, requiring DIME physician to disclose information to parties regarding appearance of or actual conflict of interest, as well as requiring disqualification of DIME physician in presence of financial relationship with party to dispute). Therefore, even if the involved physicians were members of Pinnacol's SelectNet it would not in our opinion, overcome the presumption of impartiality of administrative officials acting in a quasi-judicial capacity. See Washington v. Atherton, 6 P.3d 346(Colo.App. 2000). Consequently, in our opinion, the claimant's inability to use discovery to explore the MUR members' connection with Pinnacol's SelectNet does not constitute a denial of due process.
II.
The claimant next contends that in the corrective order the ALJ failed to be sufficiently thorough and understandable and, as a result, conjecture is required to determine what the ALJ meant to leave in or take our from the original order. We are not persuaded.
The ALJ issued an order on the merits on September 2, 2008. The respondents filed a motion for a corrected order on the grounds that the party appealing the Director's order was not both the claimant and the provider, but rather, the claimant alone. The ALJ issued an order dated October 1, 2008 stating that the term "provider" wherever listed as a party would be corrected to reflect "claimant" as the party appealing the MUR order of the Director. The claimant filed a motion for rescission of the corrected order arguing that the corrected order should be issued in its entirety so that there is no question as to the wording of the order for purposes of appellate consideration. The ALJ denied the claimant's motion for rescission in an order dated October 14, 2008.
The claimant argues that the order should be completely redrafted so that the claimant is not charged with conduct or knowledge specific to the provider, Dr. Hall. The claimant argues that it is difficult if not impossible to reconcile portions of the Findings of Fact, Conclusions of Law, and Order in light of the one-sentence corrected order. We are not persuaded that the correction of the identification of the appealing party presents any insuperable difficulty.
We first note that the ALJ is not held to a standard of absolute clarity when issuing findings of fact and conclusions of law provided the basis of the order is apparent from the findings. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). In our view, the ALJ's order that corrected the identification of the appealing party made in the ALJ's original order did not introduce any fatal confusion into the order. The claimant argues that the order should be redrafted so that the claimant is not charged with conduct or knowledge specific to the medical provider. However, a MUR review is designed to provide a mechanism to review and remedy medical services rendered to the claimant, which may not be reasonably necessary or reasonably appropriate according to accepted professional standards. Section 8-43-501(1). The claimant has not explained, nor do we perceive, how the ALJ's simple correction of his earlier error in identifying who prosecuted the appeal of the Director's MUR order had any substantive effect.
We further note that counsel for the claimant early in the proceedings filed a March 28, 2008 pleading entitled "Dr. Timothy Hall's Written Response to the Order Issued by Director Summers on March 10, 2008 in which Claimant Vincent Franz Completely Agrees and Joins." This pleading was a joint pleading filed on behalf of Dr. Hall and the claimant in which it was argued that the MUR panel members were Pinnacol SelectNet physicians and not objective. Under these circumstances, the claimant may not be heard to assert that there has been confusion on identity of the parties seeking appeal of the MUR order. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo. 1993) (party may not complain of invited error for which the party is responsible); Morgan County Department of Social Services v. J.A.C., 791 P.2d 1157 (Colo.App. 1989) (same).
IT IS THEREFORE ORDERED that the ALJ's orders dated September 2, 2008 and October 14, 2008 are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
VINCENT S FRANZ, WOODLAND PARK, CO, (Claimant).
PINNACOL ASSURANCE, Attn: HARVEY FLEWELLING, ESQ./MELISSA KAPUSTKA, DENVER, CO, (Insurer).
STEVEN U MULLENS, PC, Attn: STEVEN U MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGGSEGGER SIMONS SMITH STERN, LLC, Attn: LISA SIMONS, ESQ/MICHELE STARK CAREY, ESQ, DENVER, CO, (For Respondents).
DIVISION OF WORKERS' COMPENSATION, Attn: DIRECTOR, DENVER, CO, (Other Party).
INTERMOUNTAIN REHABILITATION ASSOC, INC., Attn: TIMOTHY HALL, M.D., COLORADO SPRINGS, CO(Other Party 2).