W.C. No. 4-418-310Industrial Claim Appeals Office.
April 11, 2000
FINAL ORDER
The respondents seek review of orders of Administrative Law Judge Martinez (ALJ) dated September 27, 1998, and October 8, 1999, insofar as the ALJ required them to pay for the surgical and post-operative treatment provided by Dr. Wirt. We affirm
The claimant suffered an admitted low back injury which was treated by Dr. McCaulley. Dr. McCaulley later referred the claimant to Dr. Snook who recommended fusion surgery. The claimant received a second opinion from Dr. Reiss. Dr. Reiss opined that the claimant is deconditioned and recommended the claimant complete an exercise program and undergo discograms prior to the consideration of fusion surgery. Based upon that request the claimant commenced a conditioning program. On a referral from Dr. Snook the claimant was also evaluated by Dr. Wirt, who recommended the claimant undergo fusion surgery upon her completion of the conditioning program. On July 7, 1999, the claimant notified the respondents’ medical case manager, Ms Thall, that she was scheduled to undergo surgery by Dr. Wirt. Ms Thall advised the claimant that the surgery was unauthorized. The claimant proceeded with surgery the following day. At hearing the claimant testified that her pain was significantly reduced by the surgery
The ALJ determined that Dr. Wirt is an authorized treating physician. Further, the ALJ determined that regardless of whether the claimant underwent discograms, the fusion surgery was reasonable and necessary to cure and relief the effects of the industrial injury. Therefore, the ALJ ordered the respondents to pay for the surgery and Dr. Wirt’s post-operative treatment
I
On review the respondents contend the ALJ erroneously found the “surgery was authorized.” In support, the respondents contend that there is no evidence the claimant was referred to Dr. Wirt for surgery. We disagree
The respondents are liable for all authorized and emergency treatment reasonably necessary to cure or relieve the effects of the industrial injury. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). “Authorization” and the reasonableness of treatment are separate and distinct issues. See One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). “Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense, and not the particular treatment provided. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). In follows that all treatment provided by the “authorized treating physician,” is “authorized.” However, the treatment is not compensable unless it is also “reasonable and necessary” to cure or relieve the effects of the industrial injury
A physician who commences to treat the industrial injury upon a referral made in the “normal progression of authorized treatment” becomes an authorized treating physician. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo App. 1999);Greager v. Industrial Commission, 701 P.2d 168 (Colo App. 1985). However, it is true, that a referral can be limited in scope. See Gail v. U.S. West Service Link, Inc., W.C. No 3-957-994 (June 18, 1991), aff’d., Gail v. U.S. West Service Link, Inc., (Colo.App. No. 92CA1107, June 3, 1993) (not selected for publication); Benien v. Color Star Growers of Colorado Inc., W.C No. 4-226-236 (April 29, 1998); Gamboa v. ARA Group, Inc., W.C No. 4-106-924 (November 20, 1996)
The determination of whether there has been a referral in the “normal progression of authorized treatment” and the scope of the referral are questions of fact for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). We are bound by the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. § 8-4-301(8), C.R.S. 1999; Suetrack USA v Industrial Claim Appeals Office, supra; Smith v. Aspen Skiing Company, W.C. No. 3-071-413, (December 21, 1993)
Here, it is undisputed that Dr. McCaulley and Dr. Snook are authorized treating physicians. As argued by the respondents, Dr McCaulley’s May 6, 1999 letter only refers the claimant to Dr Wirt for a “back eval.” Similarly, Dr. Wirt’s report dated April 12, 1999, reflects his understanding that Dr. Snook referred the claimant to him for only a “neurological consultation.” However, the claimant testified that after Dr. Wirt’s evaluation she returned to Dr. McCaulley and Dr. McCaulley then referred her to Dr. Wirt for treatment. (Tr. p. 21). The claimant’s testimony is buttressed by evidence of an undated, unrestricted referral from Dr. McCaulley to Dr. Wirt. Further, Dr. McCaulley’s letter dated June 10, 1999, contains his recommendation that the claimant proceed with L4-5 fusion. Therefore, the record contains substantial evidence from which the ALJ could, and did, find that the claimant was referred to Dr. Wirt in the normal progression of authorized treatment, and that Dr. Wirt is an authorized treating physician for purposes of the fusion surgery and post-operative treatment
II
However, the respondents contend the surgery was neither reasonable or necessary to treat the industrial injury because the claimant failed to undergo a stabilization, and conditioning program, failed to complete the discograms recommended by Dr Reiss and did not meet the criteria for surgical intervention listed in the Division of Workers’ Compensation Medical Treatment Guidelines. Again, we disagree
Where the medical evidence is subject to conflicting inferences, it is the ALJ’s sole province as the fact finder to resolve the conflict. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In this case, Dr. Reiss recommended discograms to determine the exact location of the claimant’s pain generator. However, he admitted that the use of discograms is “very controversial.” Specifically, he stated that:
“Some people find that it is very helpful. Other people say it is not a worthwhile test. It still is under investigation to try and determine how useful or how non-useful it is.”
In contrast, Dr. Wirt opined that a “discogram on [the claimant] would have been absolutely worthless, because she had a totally collapsed disc.” (July 16, 1999). Furthermore, neither Dr. McCaulley, Dr. Worwag or Dr. Snook recommended a discogram prior to the fusion surgery. (See
Dr. McCaulley June 10, 1999; Dr. Worwag January 25, 1999; Dr. Snook, February 26, 1999)
The ALJ was not required to afford Dr. Reiss’s testimony any special weight. See § 8-42-107(8)(b)(c), C.R.S. 1999. Dr Reiss’s opinions merely created a conflict in the evidence concerning the reasonableness of the surgery, which the ALJ resolved in favor of Dr. Wirt
Furthermore, approximately one month after the surgery, the claimant testified she felt “wonderful,” and that she has gotten “better and better” ever since the surgery. (Tr. p. 18). Under these circumstances, there is substantial evidence to support the ALJ’s finding that the absence of the discograms did not preclude a finding that the surgery was reasonable and necessary to relieve the effects of the industrial injury
III
Finally, we reject the respondents’ argument that they cannot be held liable for the cost of the surgery because Dr. Wirt did not request pre-authorization as required by the Rules of Procedure, Part XVI(I)(2)(c), 7 Code Colo. Reg. 1101-3 at 78. We doubt this argument was raised before the ALJ. See Kuziel v. Pet Fair, Inc., 931 P.2d 521
(Colo.App. 1996), cert. denied, August 25, 1997, 97SC27 (issue not raised to ALJ considered waived on appeal). However, even if the argument is properly before us, it is not persuasive
Rule XVI(I)(1) at 78 provides that prior authorization for payment shall be obtained from the payer when the prescribed services exceeds the limitations for that service in the medical treatment guidelines or prior authorization is required by the guidelines or medical fee schedule. Even though Rule XVI purports to address “authorization” for treatment, the purpose of the rule is to establish the “reasonableness and necessity” of treatment provided by an authorized treating physician. Cf. Grover v Industrial Commission, 759 P.2d 705 (Colo. 1988); Snyder v Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997) Rule XVI(I)(2) facilitates 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. As a result, when properly followed, the rule offers protection to the authorized treating physician from providing treatment which the insurer considers non-compensable
However, the respondents’ refusal to approve payment for prescribed treatment does not preclude the claimant from having the issue adjudicated by the ALJ. In fact, the respondents concede that the claimant is entitled to an evidentiary hearing before the ALJ to adjudicate the reasonableness of treatment which the insurer refuses to pre-approve. Thus, the physician’s failure to comply with Rule XVI(I) does not bar the claimant from obtaining an order which requires the respondents to pay for treatment
Here, the respondents had advance notice of the proposed surgery and explicitly advised the claimant that they refused to pre-approve the surgery. Consequently, the claimant applied for a hearing before the ALJ to resolve the respondents’ liability for the treatment
Moreover, the rule imposes the duty to request pre-authorization on the physician, not the claimant. Rule XVI(I)(2)(c) states that:
“It shall be the responsibility of the provider to obtain prior authorization for payment from the payer when prior authorization for payment is required by these Rules.”
A violation of the rule subjects the “violator” to monetary penalties up to $500 per day per § 8-43-304, C.R.S. 1999 or other penalties “authorized by the act.” The respondents did not seek the imposition of penalties against Dr. Wirt. Further, the respondents have not presented any authority for their contention that the ALJ may “penalize” Dr. Wirt’s failure to request pre-authorization by refusing to reimburse the claimant for the medical expenses she incurred with Dr. Wirt. Therefore, we disagree with the respondents construction of Rule XVI(I)(2)
IT IS THEREFORE ORDERED that the ALJ’s order dated November 8, 1999, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999 The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202
Copies of this decision were mailed April 11, 2000 to the followingparties:
Linda J. Bray, P. O. Box 501, Hayden, CO 81639
Hayden School District RE-1, P. O. Box 70, Hayden, CO 81639-0070
Lauren Jordan, HIH Great States Insurance Company, P. O. Box 4143, Englewood, CO 80155-4143
Erick Glanz, Esq., The Boathouse, #400, 609 Yampa St., P. O. Box 4947, Steamboat Springs, CO 80477 (For Claimant)
Patricia Jean Clisham, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Pendroy