W. C. No. 4-514-998.Industrial Claim Appeals Office.
May 10, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated November 30, 2006 that denied the claimant’s claim for ongoing chiropractic treatment. We affirm.
A hearing was held on the sole issue of the respondents’ liability for ongoing chiropractic treatment. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On March 19, 2001 the claimant sustained a compensable injury when he fell off a ladder, striking his tailbone. He underwent an MRI on June 26, 2001, which revealed only minimal annular bulging at the L5-S1 level of the claimant’s lumbar spine, without any disc protrusion or nerve impingement. Dr. Primack performed an EMG nerve conduction study on July 13, 2001, which showed no evidence of radiculopathy. Prior to the claimant reaching maximum medical improvement a number of physicians examined him, and none made a diagnosis of radiculopathy. That diagnosis was made following another EMG study performed on September 15, 2004. The claimant was referred to a chiropractor, Dr. Smith, who rendered chiropractic treatments for the claimant’s radiculopathy. She also performed manipulations on the claimant’s thoracic and cervical areas of his spine. The ALJ expressly credited the opinions of Dr. Osen, who testified that the claimant’s radiculopathy was unrelated to his compensable injury and that, in any event, Dr. Smith’s recommendations for chiropractic treatment were not consistent with the Division’s medical treatment guidelines. Dr. Osen also opined that the claimant’s
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compensable injury was well-healed and did not require chiropractic treatment. The ALJ found that the ongoing chiropractic treatments were not reasonable and necessary. Accordingly, he denied the claimant’s request for an order awarding those benefits.
The claimant appealed and argues that the ALJ erred in adjudicating the issue of the relatedness of the chiropractic treatment to the industrial injury without notice to the claimant. The claimant also argues that because the respondents failed to comply with Workers’ Compensation Rule of Procedure 16-10, the ALJ erred in denying the chiropractic treatment. However, we are not persuaded the ALJ committed reversible error.
I.
First, we disagree with the claimant’s argument that he was provided insufficient notice that the “relatedness” of the chiropractic treatment to his industrial injury would be adjudicated. It is certainly true that a party has the right to procedural due process, which generally requires that the party be provided with notice and an opportunity to be heard. Avalanche Industries, Inc. v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 06CA0716, March 27, 2007). The essence of procedural due process is that the proceedings be fundamentally fair. City and County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). Due process also requires that a party have advance notice of the issues to be adjudicated at the hearing. Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987).
Here, the claimant had notice of the issues to be adjudicated. The hearing was held pursuant to the respondents’ application for a hearing, which is a form promulgated by the Division and which contains issues to be considered at the hearing that may be “checked.” The respondents’ application for hearing indicated that “medical benefits” was such an issue to be tried at the hearing, and it further clarified under “other issues” the question “[w]hether ongoing chiropractic care is reasonable and necessary.” It is certainly true that the reasonableness and necessity of medical treatment might be challenged without implicating the causal connection between the need for the treatment and the compensable injury. However, it is also true that a showing that the compensable injury caused the need for treatment is a threshold prerequisite to the further showing that treatment is reasonable and necessary. In our view, the general endorsement of the issue of “medical benefits” might reasonably include a number of other issues, including “relatedness.”
It is unnecessary, however, for us to speculate regarding whether the claimant understood the general endorsement of “medical benefits” to include the issue of the causal connection between the treatment and the injury. The record makes clear that he did understand that that issue would be tried at the hearing. The claimant filed a response to the application for hearing on a form which, unlike the application, included the sub-issue under
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medical benefits of “related to injury.” Moreover, we note that the claimant “checked” that particular box on the response and therefore endorsed that sub-issue as an issue that “shall be considered at the hearing. . .” pursuant to the response. Further, at the commencement of the hearing the parties discussed the issues at some length. At least three times during that discussion the respondents’ counsel referred to the issue whether the chiropractic care was related to the compensable injury and at no point did the claimant’s attorney respond that that issue was not endorsed as one for hearing. See tr. at 6, 7, 13. Moreover, the respondents called the independent medical examiner, Dr. Olson, to testify at the hearing. Dr. Olson’s testimony almost exclusively addressed the question whether the claimant’s compensable injury caused his need for chiropractic treatment. Thus, Dr. Olson opined that the compensable injury was “healed” and no longer caused the need for any treatment. Tr. at 71. He also stated that the claimant’s symptoms were “[c]learly” not related to his injury, tr. at 76, and that the claimant’s disc protrusion was similarly not caused by the compensable injury. Tr. at 78-79. Indeed, virtually all of Dr. Olson’s testimony was apparently intended by the respondents to establish that there was no causal connection between the claimant’s injury and his symptoms, his need for medical treatment, or his objective findings. Moreover, we note that the claimant did not object at any point during the respondents’ direct examination of Dr. Olson, and cross-examined him at some length. We are unable to locate any point in the transcript of the proceedings at which the claimant objected to litigation of the “relatedness” issue, expressed any surprise at the respondents’ raising that issue, or indicated that he was unprepared to litigate it. Hence, even assuming that the respondents failed to provide notice of the issue, the claimant waived any objection to the ALJ’s adjudication of it. See Anders v. Industrial Commission, 649 P.2d 732 (Colo.App. 1982).
II.
We also disagree with the claimant’s argument that the respondents’ failure to comply with Rule 16 deprived the ALJ of jurisdiction to rule on the reasonableness and necessity of the chiropractic treatment. It is true that the respondents conceded at the hearing that they had failed to comply with the requirements of Rule 16 regarding contesting a request for prior authorization. It is further true that Rule 16-10(E) provides that “[f]ailure of the payer to timely comply in full with the requirements of Rule 16-10(A), shall be deemed authorization for payment of the requested treatment unless a hearing is requested within the time prescribed for responding as set forth in Rule 16-10(A) or (B).” However, under the circumstances of this case, we disagree with the claimant’s argument that the respondents’ failure to comply with Rule 16 precludes them from seeking an adjudication of their liability for medical benefits from an ALJ.
The purpose of Rule 16 is to offer protection to an authorized treating physician from providing treatment that the insurer later challenges as non-compensable. Thus, the rule
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provides that under certain circumstances, the medical provider shall obtain prior authorization for payment when it is required by the medical treatment guidelines or the medical fee schedule. Although the rule refers to “authorization,” we have noted that its purpose is to establish the reasonableness and necessity of treatment provided by the authorized treating physician. Bray v. Hayden School District RE-1, W.C. No. 4-418-310 (April 11, 2000). However, contrary to the claimant’s argument, in our view the respondents’ default under Rule 16 only required them to provide the ongoing chiropractic care until the matter was resolved by an administrative law judge following a hearing. The claimant’s argument is the equivalent of one that the terms of Rule 16 operate to divest the ALJ of jurisdiction over the issue of the reasonableness and necessity of ongoing medical treatment, perhaps for an indeterminate period and perhaps subject only to the Act’s medical utilization review procedures. We do not read Rule 16 to have that effect. The ALJs have broad jurisdiction to resolve disputes under the Act. Section 8-43-201 C.R.S. 2001; Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo.App. 1992). In the absence of clear textual evidence, we may not read Rule 16 to deprive the ALJ of jurisdiction over the parties’ dispute. See Langton v. Rocky Mountain Health Care Corp., 937 P.2d 883, 886 (Colo.App. 1996). Indeed, the Director is statutorily precluded from adopting rules that “limit the jurisdiction of an administrative law judge in the office of administrative courts to hear and decide all matters arising under articles 40 to 47 of this title [8].” Section 8-47-107, C.R.S. 2006. Hence, we decline to read Rule 16 to require the defaulting insurer to pay for ongoing treatment indefinitely, with no recourse to the adjudicative procedures.
In any event, here there is no potential conflict between the operation of Rule 16 and the authority of the ALJ. We note in this case that, although the record is somewhat ambiguous, it appears that the respondents paid for the chiropractic care up until the time of the hearing. Tr. at 47, 51, 53 (some bills were not paid, but only because they were “processed” incorrectly by the insurer). Further, it does not appear that the claimant presented any bills for payment, nor did he seek an order that the respondents were liable for any outstanding bills. Finally, the ALJ only ordered that the respondents had no liability for chiropractic treatment prospectively, beginning at the date of the order. Therefore, no chiropractic treatment was retrospectively denied by the ALJ.
We have considered the claimant’s remaining arguments and they do not persuade us to reach a contrary result.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 30, 2006, is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
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Ahmed Bekkouche 13314 West 138th Terrace Overland Park, KS, RSKCo Ruth Ann Kuehl PO Box 17369 Denver, CO, Irwin Boesen, P.C. Chris L. Ingold, Esq. 501 So. Cherry Street Suite 500 Denver, CO, (For Claimant)
Dworkin, Chambers, Williams, York, Benson Evans P.C. Gregory K. Chambers, Esq. E., Mexico Ave Suite 1300 Denver, CO 80210 (For Respondents)
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