W.C. No. 4-795-733.Industrial Claim Appeals Office.
November 8, 2010.
FINAL ORDER
The claimant and respondents both seek review of an order of Administrative Law Judge Krumreich (ALJ) dated June 28, 2010, that ordered the respondents to pay for claimant’s surgery and that denied the claimant’s claims for penalties. We affirm.
The case was heard before the ALJ on the issues of whether the claimant sustained a compensable injury to his left shoulder on November 29, 2008, liability for medical benefits, and the imposition of penalties. The ALJ found that the claimant had proven by a preponderance of the evidence that he sustained an injury to his left shoulder from shoveling on November 29, 2008. The ALJ found that surgery performed by Dr. Hajek on January 27, 2010 was reasonable, necessary and causally related to the claimant’s industrial injury. The ALJ found that the claimant had failed to prove entitlement to certain claimed temporary disability benefits. However, the respondents had stipulated that if the claim was held compensable the claimant would be entitled to a period of temporary benefits following the date of the surgery. The ALJ accepted this stipulation. The claimant had sought imposition of penalties against the employer for its alleged failure to timely file a report of injury to the Division of Workers’ Compensation (Division) and for denial of medical care. The claimant also sought to penalize the insurer for alleged failure to timely admit or deny the claim. All the claims for penalties were dismissed. Both parties appeal.
I.
The respondents contend the ALJ erred by failing to enter necessary findings to determine whether the provider requested prior authorization for the January 27, 2010
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surgery. The respondents argue that they are not responsible for the cost of the surgery because the provider did not seek prior authorization. The respondents argue that the ALJ failed to address this defense and only made findings concerning the general authorization of the physician and the relatedness of the surgery. The respondents, citing W.C. Rules of Procedure 16-9, 18-6(J)(1) and 18-6(I)(1), 7 Code Colo. Reg. 1101-3 (2010), argue that prior authorization is required for all non-emergency out patient surgery and all non-emergency inpatient admissions. The respondents concluded that prior authorization should have been obtained for the claimant’s non-emergency left shoulder surgery. We are not persuaded that the ALJ committed reversible error.
Here Dr. Hajek was found to be an authorized treating physician and the surgery he performed was found to be was reasonable, necessary and related to the industrial injury. The respondents have not appealed that portion of the order and therefore the reasonableness, necessity and relatedness of the treatment is finally established for purposes of this appeal. We conclude that the respondents’ failure to appeal those issues are equivalent to a concession that the treatment was reasonable, necessary, and related to the injury. Rule 16-9(H) provides with regard to prior authorization as follows:
If, after the service was provided, the payer agrees the service provided was reasonable and necessary, lack of prior authorization for payment does not warrant denial of payment.
Section 8-42-101(1)(a), C.R.S., provides that respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). As noted in Repp v. Prowers Medical Center, W.C. No. 4-530-649 (September 12, 2005), the purpose of prior authorization under Rule 16 is to facilitate a determination of the reasonableness of treatment in advance of the treatment by directing the physician to submit a request for prior authorization, which is either granted or denied by the insurer. The rule therefore protects the provider from providing treatment which the insurer considers non-compensable. The administrative regulation can thus be read to complement the statutory obligation to provide reasonable and necessary medical treatment. Galicia v. Pietraszek Enterprises, Inc., W.C. No. 4-610-668 (May 09, 2008).
We are therefore not persuaded to interfere with the ALJ’s order. The ALJ found that the surgery performed was reasonable, necessary and related to the industrial injury. Therefore it was implicit in his order that under Rule 16-9(H), because the surgery was found to be reasonable and necessary, lack of prior authorization for payment did not warrant denial of payment. We perceive no basis on which to interfere with the order in this regard.
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II.
The claimant also appealed the order, first contending that the ALJ erred by failing to award penalties for the employer’s failure to timely file a report of injury to the Division in violation of §§ 8-43-101(1); 8-43-103(1) and W.C. Rule of Procedure 5-2, 7 Code Colo. Reg. 1101-3 (2010). We are not persuaded that the ALJ erred in denying penalties.
The claimant’s injury occurred on November 29, 2008. The claimant reported his injury to the employer on December 2, 2008. The employer completed an Employer’s First Report of Injury on December 10, 2008. It is undisputed that the claimant continued to work despite his injury and did not lose any time from work.
Section 8-43-101(1) provides that:
Every employer shall keep a record of all injuries that result in fatality to, or permanent physical impairment of, or lost time from work for the injured employee in excess of three shifts or calendar days and the contraction by an employee of an occupational disease that has been listed by the director by rule.
The claimant concedes that he continued to work after his industrial injury and did not lose any time. We agree with the ALJ that § 8-43-101(1) provides that the employer’s obligation to file a first report of injury is not triggered unless the injured employee loses in excess of three shifts of work.
However, the claimant argues that Rule 5-2 requires that a First Report of Injury be filed with the Division within ten days after notice or knowledge of a claim for benefits, including medical benefits only, that is denied for any reason. We note that in relevant part Rule 5-2 provides that a First Report of Injury shall be filed with the Division:
Within ten days after notice or knowledge by an employer that an employee has contracted an occupational disease listed below, or the occurrence of a permanently physically impairing injury, or that an injury or occupational disease has resulted in lost time from work for the injured employee in excess of three shifts or calendar days. (Emphasis supplied)
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The claimant has made no argument that he contracted one of the specified occupational diseases nor that he had alleged a permanent impairment. Because, during the relevant time, the claimant had not lost any time from work we see no reason to interfere with the ALJ’s dismissal of the claim for penalties for violation of Rule 5-2.
The claimant also argues that the employer should be penalized for failure to comply with § 8-43-103(1). The claimant concedes that the evidence shows that the employer did notify the carrier of the claimant’s injury in a timely fashion. However the claimant argues that notification of the carrier alone is insufficient to satisfy the requirement of the statutes and the rules. The claimant argues that the employer must give notice of the claim to the Division. It is provided in § 8-43-103(1) that:
Notice of an injury, for which compensation and benefits are payable, shall be given by the employer to the division and insurance carrier, unless the employer is self-insured, within ten days after the injury, and, in case of the death of any employee resulting from any such injury or any accident in which three or more employees are injured, the employer shall give immediate notice thereof to the director.
We do not read § 8-43-103(1) as imposing on the employer a requirement to report all injuries to the Division, even injuries where there is no lost time, when § 8-43-101(1) specifically provides that the employer is exempt from reporting such injuries in cases where there is no lost time in excess of three shifts. We must read and consider the statute as a whole and interpret it in a manner giving consistent, harmonious, and sensible effect to all of its parts. Lujan v. Life Care Centers, 222 P.3d 970, 973 (Colo. App. 2009). We should not interpret the statute so as to render any part of it either meaningless or absurd Id. In our view, interpreting § 8-43-103(1) as requiring the employer to report all injuries to the Division would make meaningless the provisions of § 8-43-101 which direct the reporting of minor injuries by monthly summary form from the insurer. We note that it is provided in § 8-43-101(2) as follows:
Unless exempted by the director pursuant to rule because of a small number of filings or a showing of financial hardship, beginning July 1, 2006, reports submitted pursuant to this section shall be submitted in an electronic format as determined by the director. Exposure to an injurious substance as defined by the director by rule and injuries to employees that result in no more than three days’ or three shifts’ loss of time from work, or no permanent physical impairment, or no fatality to the employee shall be reported by the employer only to the insurer of said employer’s workers’ compensation insurance liability, which injuries and exposure the insurer
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shall report only by monthly summary form to or as otherwise requested by the division. (Emphasis supplied)
In construing statutes, the specific governs the general Russell v. Department of Air Force 915 F. Supp. 1108 (D. Colo. 1996). Here the more specific provisions of § 8-43-101 should not be deemed to be controlled or nullified by the more general provisions on reporting contained in § 8-43-103(1) absent some indication of a definite contrary intention. In construing the plain language of § 8-43-101(2) the clear intent of the general assembly was that in cases where the loss of time from work was no more than three days that the employer only needed to report the claim to the insurer. This is consistent with the provisions of Rule 5-2 which deals with the filing of the Employers’ First Reports of Injury and directs the employer to file the report with the employer’s insurer, not the Division.
III.
The claimant next argues, citing § 8-43-203(1) C.R.S. that the ALJ erred in failing to penalize the insurer’s failure to admit or deny the claim within 20 days of when the First Report of Injury should have been filed with the Division. The claimant argues that the claimant’s injury was immediately made known to his employer and the staff physician at the company health clinic where the claimant was seen. We are not persuaded that the ALJ erred in dismissing the claim for a penalty under § 8-43-203(1).
Section 8-43-203(1) provides, insofar as is pertinent here, that an employer’s insurance carrier must notify the Division and the injured employee within twenty days after notice or knowledge of an injury which disables said employee for more than three shifts or three calendar days whether liability for the injury is admitted or contested. Huss v. American Shippers
W.C. 3-939-698 (March 20, 1991). Section 8-43-203(2) provides for a penalty for failure to admit or deny liability as required by subsection (1).
We first note that the claimant seeks a penalty against the insurer under § 8-43-203(1) and yet argues that the employer had notice of the injury. It is provided in § 8-43-203(1) that any knowledge on the part of the employer, if insured, is not knowledge on the part of the insurance carrier. Therefore, the claimant’s arguments concerning the employer’s knowledge are misplaced.
To the extent that the claimant argues that insurer’s failure to admit or deny the claim within 20 days of when the First Report of Injury should have been filed with the Division and the First Report should have been filed immediately, we reject that argument. For the reasons noted above, it is our opinion that the requirement for filing with the Division did not occur until the claimant began to lose time from work following the surgery.
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Here the ALJ made the following findings of fact. Neither the employer nor the insurer was required to file the Employer’s First Report with the Division for some time after the accident because the claimant had not lost more than three shifts or calendar days from work. The claimant failed to prove by a preponderance of the evidence that he was temporarily and totally disabled from September 15, through November 15, 2009 as a result of his industrial injury. The ALJ accepted the respondents’ stipulation that if the claim was held compensable the claimant was entitled to TTD benefits beginning January 27, 2010. The Employer’s First Report of Injury was filed with the Division on June 18, 2009. The ALJ found that the insurer filed a Notice of Contest with the Division within 20 days of the filing of the Employer’s First Report. The insurer filed A Notice of Contest dated June 22, 2009 with the Division. The claimant completed a Workers’ Claim for Compensation dated July 22, 2009 that was received by the Division on July 28, 2009.
The claimant, on appeal, has not challenged any of these facts. In our view these facts demonstrate that the ALJ’s determination is supported by substantial evidence in the record. Because the issue here of whether the insurer timely complied with the requirements of § 8-43-203(1) of is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.RS.
IV.
The claimant finally argues that the ALJ erred by failing to impose penalties under § 8-43-304(1) C.R.S. against the employer for denial of medical care as required by § 8-42-101 C.R.S. due to the arbitrary cessation and discharge from care by Dr. Brignoni. We are not persuaded that the ALJ committed error in denying the claim for penalties.
Section 8-43-304, authorizes an ALJ to impose a penalty against a party who violates any provision of the Workers’ Compensation Act, fails or refuses to perform any duty lawfully enjoined within the time prescribed by the director, or refuses to obey any lawful order made by the director or the panel. The imposition of penalties under § 8-43-304 is a two-step process, first requiring the ALJ to determine if the respondents’ conduct violated the Act, a rule, or an order. If a violation occurred the ALJ must determine whether the party’s actions were objectively reasonable. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d (Colo. App. 1995).
Here the ALJ made the following relevant findings of fact. Dr. Brignoni initially evaluated the claimant on December 15, 2008 but felt that there was conflicting information regarding the reported incident of shoveling and initial complaints. Based upon these inconsistencies, Dr. Brignoni felt the claimant’s complaints were not work
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related. However, Dr. Brignoni referred the claimant for evaluation by a neurologist. After that evaluation Dr. Brignoni discharged the claimant from his care because he felt the claimant’s condition was not work-related.
The ALJ found that at the time Dr. Brignoni discharged the claimant from his care it had not been established that the claimant had sustained a compensable injury and thus the claimant had not established an entitlement to medical benefits under § 8-42-101. The ALJ concluded any denial of treatment was not in violation of § 8-42-101. The claimant concedes that if the ALJ had found in favor of the respondents on the issue of compensability then no penalties could be imposed. However, the claimant argues that the employer cannot unilaterally make a determination on the legal issue of compensability and refuse medical treatment without any risk of exposure to penalties under the Workers’ Compensation Act (Act). We are not persuaded that the ALJ erred in denying penalties.
We acknowledge that § 8-42-101 provides that every employer shall furnish such medical treatment as may reasonably be needed at the time of the injury and thereafter during the disability to cure and relieve the employee from the effects of the injury. However, we agree with the ALJ that the claimant’s entitlement to medical care under in § 8-42-101 is premised upon the establishment of a compensable injury. Under the Act the claimant in a workers’ compensation claim has the burden of proving entitlement to benefits by a preponderance of the evidence. Section 8-43-201 C.R.S. To impose penalties under § 8-43-304 an ALJ must first determine that the employer’s conduct constituted a violation of the Act, a rule, or an order. The claimant has not cited any authority, nor are we aware of any authority for the proposition that a penalty under § 8-43-304 may be imposed on a respondent for failure to provide benefits on a denied claim.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 28, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
Curt Kriksciun
______________________________
Thomas Schrant
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MANUEL URTUSUASTEGUI, 31635 WCR 57, GILL, CO, (Claimant).
JBS USA, LLC, GREELEY, CO, (Employer).
ZURICH AMERICAN INSURANCE COMPANY, Attn: MS. KIM VAN, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).
LAW FIRM OF ROD GLORIA, PC, Attn: RODRIGO S. GLORIA, ESQ., DENVER, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: DOUGLAS A. THOMAS, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
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