Opinion
W.C. No. 4-759-240.
October 14, 2011.
FINAL ORDER
The claimant seeks review of a corrected order of Administrative Law Judge Friend (ALJ) dated May 31, 2011, and mailed June 2, 2011, that denied his request for penalties pursuant to § 8-43-304(1), C.R.S. for the insurer's alleged failure to comply with W.C.R.P. 11-7, 7 Code Colo. Reg. 1101-3, and the insurer's alleged violation of W.C.R.P. 11-6(A), 7 Code Colo. Reg. 1101-3. We affirm.
The following facts reflect the record as well as the ALJ's findings. On February 20, 2008, the claimant sustained an admitted injury to his lumbar spine while working for his employer. The claimant treated with various physicians, including Dr. Mars and Dr. Benz. On March 3, 2009, Dr. Mars placed the claimant at maximum medical improvement (MMI) and assigned the claimant a whole body impairment rating. In his report dated March 11, 2009, Dr. Mars opined that "[s]urgery for disk replacement versus fusion at the L3-4 level is recommended as maintenance treatment. . . ." Exhibit 10 at 11.
The respondent filed a Final Admission, admitting to the MMI date and impairment rating assigned by Dr. Mars. The claimant objected to the Final Admission and requested a Division Independent Medical Examination (DIME).
On July 23, 2009, Khoi Pham, M.D. performed the DIME. In his DIME report dated July 23, 2009, Dr. Pham opined that the claimant was not at MMI, that he recommended an opinion from a spine surgeon as to whether the claimant needed surgery, and that when the claimant is placed at MMI, he would dictate an addendum to his DIME report. Dr. Pham specifically opined as follows:
[The claimant] had failed conservative care and is still symptomatic. He expressed desire to proceed with corrective surgery. Not being a spine surgeon, I cannot offer a surgical opinion (intractable pain/symptoms, vs. too young and minimal deficits for lumbar fusion). I would suggest arranging for the patient another spine or neuro-surgery opinion. If the IME surgeon does not feel that he needed to have surgery (the procedures suggested by Dr. Benz), I would dictate an MMI addendum to this report. Until then, [the claimant] is not at MMI. Exhibit 9 at 3.
On September 22, 2009, the claimant was seen by Donald S. Corenman, M.D. for a second surgical consultation. Dr. Corenman recommended a repeat discogram and stated that if the L3-4 disc were the pain generator, then the claimant would be a candidate for consideration of surgery, or a TLIP fusion at the L3-4 level. Exhibit 11 at 4. In his report dated January 27, 2010, Dr. Corenman opined that based on his review of the repeat discogram, the claimant was "not a good candidate for surgery." Exhibit 11 at 1. Dr. Corenman specifically opined as follows in his January 27, 2010, report:
Based upon the diskogram he is not a surgical candidate. Certainly L5-S1 may be causing some of his pain but it is congenital malformation almost an attempted hemivertebra sagittal split at the L4 vertebra affecting both the L3-L4 and L4-L5 disks would put stress on those and a fusion at L5-S1 would cause more stress and probably cause them to become significant pain generators.
I told him that he is not a good candidate for surgery that the next step should simply be a chronic pain management program and a good rehab program. Exhibit 11 at 1.
The senior claim representative for the insurer received and reviewed Dr. Pham's July 23, 2009, DIME report and Dr. Corenman's January 27, 2010, surgical report. The representative continued to wait for Dr. Pham's addendum. The representative never had handled a claim where the DIME physician stated that he would file an addendum to his report. Consequently, the representative contacted the DIME Unit for guidance on how the DIME physician would receive Dr. Corenman's report in order to write the addendum. The adjuster received instructions from the DIME Unit that the proper way to provide the report was the forward Dr. Corenman's report to Dr. Pham. Tr. at 23-24. On April 26, 2010, the representative mailed a letter to Dr. Pham and enclosed a copy of Dr. Corenman's January 27, 2010, surgical report. The adjuster copied the claimant's attorney and the DIME Unit. Order at 3 ¶ 6.
On May 5, 2010, Dr. Pham sent his addendum. In his addendum, Dr. Pham opined that since Dr. Corenman found the claimant not to be a surgical candidate, the claimant would be at MMI for his low back injury effective January 27, 2010, the date that Dr. Corenman opined the claimant was not a surgical candidate. Exhibit 8 at 1-2.
Thereafter, on June 10, 2010, the respondents filed their Amended Final Admission of Liability, admitting for the whole personal impairment assigned by Dr. Pham and admitting that the claimant had reached MMI on January 27, 2010. The claimant filed an Amended Application for Hearing and Notice to Set. In his Amended Application, the claimant requested temporary total disability (TTD) benefits from January 27, 2010, to ongoing, and penalties pursuant to § 8-43-304(1), C.R.S. for the insurer's failure to comply with Rule 11-7 and violation of Rule 11-6(A). The claimant stated that other issues to be heard at the hearing were striking the respondents' Final Admission of Liability, striking Dr. Pham's Division IME, defeating Dr. Pham's Division IME concerning MMI and impairment rating by clear and convincing evidence, medical benefits if not at MMI, and Grover medical benefits if at MMI.
A hearing was held on April 21, 2011. As pertinent here, during the hearing, the representative testified that her understanding was that Dr. Corenman did not believe that the claimant was a surgical candidate, and that she then contacted the DIME Unit regarding the addendum to Dr. Pham's report. She testified that her question to the DIME Unit was how Dr. Pham was to receive the report from Dr. Corenman. The representative testified that when she forwarded Dr. Corenman's report to Dr. Pham, she understood that this was the proper way to provide the report because the instructions were received from the DIME Unit. Tr. at 20-24. The representative further testified that she forwarded to Dr. Pham only the report from Dr. Corenman dated January 27, 2010, and that she copied the claimant's counsel as well as the DIME Unit. Tr. at 22, 30. She testified that she did not send the discogram that was performed prior to the claimant's appointment with Dr. Corenman, and she did not send Dr. Corenman's report dated September 22, 2009. Tr. at 30-31, 34-36.
In his findings of fact, conclusions of law, and corrected order, the ALJ found that the claimant did not sustain his burden of proving by a preponderance of the evidence that the insurer violated Rule 11-7 or Rule 11-6(A). The ALJ concluded that Dr. Pham recommended a surgical opinion from a spine surgeon, and that if the spine surgeon did not believe the claimant needed surgery, then Dr. Pham would write an MMI addendum. The ALJ concluded that since Dr. Pham did not recommend further treatment, a follow-up IME was not required. The ALJ also found that since there was no rule that addressed the facts in question, the adjuster's decision to contact the DIME Unit for guidance was objectively reasonable. The ALJ also concluded that since the adjuster relied upon the DIME Unit regarding the proper procedures, her forwarding a copy of the surgeon's report to the DIME doctor was objectively reasonable. Consequently, the ALJ concluded that the Amended Final Admission should not be stricken, that Dr. Pham's DIME report should not be stricken, and that the claimant should not be awarded TTD benefits from January 27, 2010, to ongoing.
I.
On review, the claimant argues that the respondent-insurer, through its representative, failed to comply with Rule 11-7 and violated Rule 6(A). The claimant asserts that the representative did not request or arrange for a follow-up DIME as provided for by Rule 11-7. Moreover, the claimant contends that the representative sent Dr. Corenman's January 27, 2010, report directly to Dr. Pham without notifying the claimant's counsel or seeking permission to do so from the Director or the ALJ. The claimant further argues that the representative failed to include or also send the discography report dated January 26, 2010, as well as Dr. Corenman's September 22, 2009, report, which indicated that the claimant was a surgical candidate if it were determined that the L3-4 disc was the pain generator. The claimant argues that the representative's actions "could have affected the findings and opinions" of the DIME physician. The claimant, therefore, asserts that the most appropriate relief is to remand the matter with directions to strike the respondents' June 10, 2010, Amended Final Admission of Liability, to strike Dr. Pham's May 5, 2010, addendum to his IME report, and to order the respondents to pay TTD benefits from January 27, 2010, and ongoing. We disagree.
Rule 11-7 provides in pertinent part as follows regarding follow-up IMEs:
Sections of this Rule 11 apply to follow-up procedures, as appropriate. If a Level II IME physician determines a claimant has not reached MMI and recommends further treatment a follow-up IME examination shall to the extent possible be scheduled with the original IME physician. The party requesting the follow-up appointment shall provide written notification on a Division prescribed form or a substantially similar form of such request to the Division's IME section, with a copy to the other party. . . .
Further, Rule 11-6(A) precludes any communication between the DIME physician and the parties unless approved by the Director or an administrative law judge. Rule 11-6(A) specifically provides as follows:
(A) During the IME process, there shall be no communication allowed between the parties and the IME physician unless approved by the Director, or an administrative law judge. Any violation may result in cancellation of the IME.
Rule 11-6(A) ensures that the opinion of the IME physician is perceived to be unbiased because it is not influenced by unregulated communications from either party. See Brownson-Rausin v. Industrial Claim Appeals Office, 131 P.3d 1172, 1178 (Colo. App. 2005).
Generally, the imposition of penalties under § 8-43-304(1), C.R.S. requires a two-step analysis. First, it must be determined whether a party has violated the Workers' Compensation Act (Act) in some manner, or failed to carry out a lawfully enjoined action. If a violation is found, then it must be determined whether the violator acted reasonably. See Bettinger v. The Great Indoors, W.C. No. 4-513-392 (May 11, 2009). The reasonableness of the person's actions depends on whether the actions were predicated on a rational argument based on law or fact. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo. App. 1997). The key issue is whether the failure to comply with the Act was predicated on a rational argument in law or fact that they were not required to comply with the Act. See Porras v. World Service Co., Inc., W.C. No. 4-155-161 (October 12, 1995). If no violation is found, then penalties may not be imposed under § 8-43-304, C.R.S. See Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo. App. 1995).
Ordinarily, the existence of a violation and the reasonableness of the violator's conduct are issues of fact for determination by the ALJ. See Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo. App. 1999). When reviewing an ALJ's order which refuses to impose penalties, we are bound by the ALJ's factual findings if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003).
Here, we conclude that the ALJ did not err in ruling that the respondent-insurer did not violate either Rule 11-7 or Rule 11-6(A), and that the representative's conduct was objectively reasonable. Pursuant to Rule 11-7, if an IME physician determines that a claimant has not reached MMI and recommends further treatment, then a follow-up IME examination shall be scheduled. Contrary to the claimant's argument, Dr. Pham did not recommend further treatment for the claimant. Rather, Dr. Pham recommended that a second surgical opinion be obtained in order to determine whether the claimant needed to undergo surgery. In his DIME report, Dr. Pham stated that if the surgeon did not feel that the claimant needed to undergo surgery, then the claimant was at MMI and he would issue an addendum. As detailed above, since Dr. Corenman found the claimant not to be a surgical candidate, Dr. Pham opined that the claimant was at MMI for his low back injury effective January 27, 2010. Exhibit 8 at 1-2. As such, a follow-up IME under Rule 11-7 was not required and, therefore, substantial evidence in the record exists supporting the ALJ's conclusion that the respondent-insurer did not violate Rule 11-7.
Similarly, there is substantial evidence in the record supporting the ALJ's conclusion that the respondent-insurer did not violate Rule 11-6(A), and that the representative's conduct in forwarding Dr. Corenman's report to Dr. Pham, was objectively reasonable. The ALJ credited the insurer's representative who testified that this was the first time that she had handled a case where the DIME physician stated that he would provide an addendum to his original DIME report. The representative further testified that when she forwarded Dr. Corenman's report to Dr. Pham, she understood that this was the proper way to provide the report because the instructions were received from the DIME Unit. The ALJ concluded that since there is no rule which addresses the circumstances of the case, the representative acted reasonably in contacting the DIME Unit for guidance on how to proceed. The ALJ also ruled that the adjuster's conduct in forwarding the surgeon's report to Dr. Pham was objectively reasonable because she relied upon the DIME Unit regarding the proper procedures. We perceive no error in the ALJ's rulings on these issues.
Additionally, in his Brief, the claimant summarily contends that the adjuster's actions "could have affected the findings and opinions of the Division Examiner." Claimant's Brief at 5. Dr. Pham's opinions, however, remained consistent with his report dated July 23, 2009. Again, several months prior to the representative forwarding Dr. Corenman's surgical report to Dr. Pham, Dr. Pham issued his original DIME report recommending another spine or neuro-surgery opinion. Dr. Pham stated that if the surgeon did not feel that the claimant needed to have surgery, then he would dictate an MMI addendum. Exhibit 9 at 3. After Dr. Corenman opined that the claimant was "not a good candidate for surgery" Dr. Pham then issued his addendum opining that the claimant was at MMI. Exhibit 8 at 1-2. Based on these circumstances, therefore, we conclude that the record contains substantial evidence to support the ALJ's finding that the respondent-insurer did not violate Rule 11-6(A). Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the ALJ's corrected order issued May 31, 2011, and mailed June 2, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Kris Sanko
ADRIAN RIVERA, 731 PLATTEVILLE, CO, (Claimant).
THE CORCORAN COMPANY, INC., Attn: BRANDY MCLAUGHLIN, C/O: PERSONAL CONFIDENTIAL, INNOVATION DRIVE, FORT COLLINS, CO, (Employer).
THE HARTFORD FIRE INSURANCE, Attn: SHARON TAYLOR, LEXINGTON, KY, (Insurer).
RING ASSOCIATES, P.C., Attn: JESS M. PEREZ, ESQ., BLDG C, FORT COLLINS, CO, (For Claimant).
LAW OFFICES OF SCOTT TESSMER, Attn: SCOTT TESSMER, ESQ., ENGLEWOOD, CO, (For Respondents).