W.C. No. 4-632-352.Industrial Claim Appeals Office.
October 30, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated April 19, 2006, that denied the claim for penalties against Concentra Medical Center. We affirm.
This matter has previously been before us. The claimant sought penalties against Concentra, an authorized medical provider selected by the respondents to treat the claimant pursuant to §8-43-404(5)(a), C.R.S. 2006. The claimant alleged that when Concentra provided records to the insurer it did not charge “the standard fee under the fee schedule every time records or information are provided,” and when the claimant requested documents from Concentra a “bill was sent with the records.” The claimant asserted that Concentra should be penalized because it provided the medical records to the claimant under different terms than they were provided to the insurer, in violation of §8-43-404(2), C.R.S. 2006. The ALJ concluded that Concentra was not liable for penalties because it was a third-party medical provider and not subject to penalties under § 8-43-304, C.R.S. 2006. We determined that a medical provider was included in the phrase “any other person” as an entity that could be penalized under § 8-43-304 and, accordingly, we remanded for further proceedings.
On remand the ALJ entered the order under review here. The ALJ’s pertinent findings of fact are as follows. The ALJ limited the claimant’s penalty claim to whether Concentra was liable for a penalty on the basis of submitting a billing for medical records requested by the claimant’s counsel, and not a more general claim for failure to provide records. A medical bill was admitted into evidence from the copy center utilized by Concentra which indicated a zero balance on the bill and that the bill was cancelled February 22, 2005, months before the application for a hearing seeking penalties was filed. Exhibit 2. There was no evidence in the record of any second billings or any efforts to collect upon the bill, nor was there evidence of the original bill. The ALJ found that the provider had presented a notice of cure, documenting that it had canceled the subject billing statement, effective February 22, 2005.
On review, the claimant contends the ALJ erred in finding the claimant failed to sustain her burden of proof under §8-43-304(4), C.R.S. 2006 required for imposition of penalties, involving the provider’s alleged failure to comply with §8-43-404(2). The claimant argues that certain medical reports were not provided to the claimant at the same time and on the same terms as they were provided to the insurer because there was a charge for copying.
Section 8-43-404(2), provides as follows:
The employee shall also be entitled to receive from the examining physician or chiropractor a copy of any report which said physician or chiropractor makes to the employer, insurer, or division upon said examination, said copy to be furnished to the employee at the same time it is furnished to the employer, insurer, or division. The employee shall also be entitled to receive reports from any physician selected by the employer to treat said employee upon the same terms and conditions and at the same time the reports are furnished by the physician to the employer.
The claimant contends that Concentra was aware of who it sends records to and is deemed to know the law and thus even if Concentra cured its violation as a matter of law the claimant had shown that Concentra knew, or reasonably should have known it was in violation of the statute. We are not persuaded.
Section 8-43-304(4) provides as follows:
In an application for hearing for any penalty pursuant to subsection (1) of this section, the applicant shall state with specificity the grounds on which the penalty is being asserted. After the date of mailing of such an application, an alleged violator shall have twenty days to cure the violation. If the violator cures the violation within such twenty-day period, and the party seeking such a penalty fails to prove by clear and convincing evidence that the alleged violator knew or reasonably should have known such person was in violation, no penalty shall be assessed.
Accordingly, no penalty may be imposed if the violation is cured within 20 days and the claimant failed to prove by clear and convincing evidence that the violator knew or should have known of the violation.
Clear and convincing evidence is stronger than preponderance, and is evidence that makes a proposition highly probable and free from serious doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P. 2d 318 (1980); Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Consequently, to sustain her burden of proof the claimant was required to establish that it was “highly probable” or free from serious doubt that Concentra knew or should have known that it was in violation of the statute.
Whether Concentra knew or should have known of the alleged violation, are questions of fact for resolution by the ALJ. See Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 907 P.2d 676 (Colo.App. 1995). Therefore, we must uphold the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2006; University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001) Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
The ALJ made specific findings, with record support, that the claimant failed to prove that the responsible employees of Concentra knew or should have known that sending a bill to the claimant for the requested medical records was or could be deemed a penalty. Findings of Fact Conclusions of Law, and Order at 7, ¶ 8. Notwithstanding the claimant’s arguments, the ALJ could reasonably infer from the testimony of the representative of Concentra, Clarissa Mullenberg, that the evidence was insufficient to find it was “highly probable” or “free from serious doubt” that Concentra’s employees knew or should have known that they violated the act by providing records to an insurer and not charging “the standard fee under the fee schedule every time records or information are provided.” Similarly, the ALJ could reasonably infer from her testimony that the it was a violation when the claimant requested documents from Concentra and a “bill was sent with the records.” Tr. at 97
As noted, the ALJ found that Concentra had cured any violation. Substantial evidence in the record also supports this finding See Exhibit 2. Nevertheless, the claimant argues that, despite the heavy evidentiary burden of clear and convincing evidence, there is presumption that even if Concentra cured its violations it knew or reasonably should have known that it was in violation of the statute. It is true that parties to a workers’ compensation claim are presumed to know the applicable law Rogan v. UPS, WC# 4-314-848 (March 2, 1999). It is also true that this presumption may sometimes aid a party in meeting its burden of proof. Union Ins. Co. v. RCA Corp., 724 P.2d 80
(Colo.App. 1986).
However, the testimony both of the Concentra representative and of the various experts establishes a basis on which the ALJ could find, as she did, that the claimant failed to sustain her burden of proof that Concentra knew or should have known that its actions constituted a violation of the act. Workers’ Compensation Rule of Procedure 54-(A)(5), 7 Code Colo. Reg. 1101-3, provides that: “A copy of every medical report not filed with the Division shall be exchanged with all parties within fifteen (15) working days of receipt.” There was expert testimony that it is this 15-day rule which has been followed by practitioners and parties to workers’ compensation proceedings that allows parties to freely and easily exchange medical records. Further, Rule 18-6(C) provides that billing is allowed for the provision of medical records, and the claimant does not contend that Concentra violated this rule. Under these circumstances, we perceive no basis on which to interfere with the ALJ’s determination that the claimant failed to establish that Concentra knew or should have know that its conduct was a violation of the Act. Furthermore, we may not substitute our judgment for that of the ALJ concerning the sufficiency or probative weight of the testimony presented in the case and we decline the claimant’s initiation to do so Gelco Courier v. Industrial Commission, 702 P.2d 295 (Co. App. 1985).
Because we conclude that the ALJ properly limited the claim for penalties to that specifically plead in the application for hearing we do not reach the issue of the more general claim for failure to provide records. We do note that the ALJ found, with record support, that the claimant did not prove when the insurer received the various medical records and under what circumstances. Therefore, the ALJ correctly inferred that the claimant also failed to prove the basis of any violation of the rule requiring timely transmission of medical records.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 19, 2006 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
Amy Barnes, Denver, CO, Montgomery, Little, Soran Murray
Kuhn, P.C., Kara Knowels, Esq., Greenwood Village, CO 80111 (For Respondents).
Allman Mitzner, LLC, Robert L. Allman, Esq., Denver, CO, (For Respondents).
William J. McDonald, Esq., Denver, CO, Elizabeth A. Smith, Esq., Pinnacol Assurance, Staff Counsel, Denver, CO, Colorado Department of Human Services, Marva Livingston, Executive Director, Denver, CO, Frank A. Traylor, M.D., Executive Director, Colorado Department of Human Services, Denver, CO, (For Claimant).