W.C. No. 4-694-053.Industrial Claim Appeals Office.
April 10, 2009.

The claimant seeks review of a summary judgment order of Administrative Law Judge Krumreich (ALJ) dated November 24, 2008 that denied her claim for penalties against the respondent. We set aside the order and remand this matter for the ALJ’s further consideration of the claimant’s entitlement to penalties.

The record reflects the following procedural history. The claimant filed an application for hearing seeking penalties against the respondent due to a violation of Rule 18-6(A) of the Workers’ Compensation Rules of Procedure and, also, based on the case o Samms v. District Court, 908 P.2d 520 (Colo. 1995). During the relevant time period, Rule 18-6 of the medical fee schedule provided that conferences held at a party’s request “shall be related to the injured worker’s treatment” and, also, that “[a]ll parties shall receive actual notification from the requesting party in advance and within 24 hours of scheduling.” The claimant alleged that the respondent had meetings with her treating physician, but failed to notify her about the meetings as required by the rule.

The respondent filed a motion with the Director of the Division of Workers’ Compensation seeking relief against the claim for penalties. The respondent argued that “Rule 18-6(A) does not regulate the conduct of the insurer beyond that necessary to make payments pursuant to the medical fee schedule.” Opposed Motion to Director for Order Regarding Penalties at 2, ¶ 9. The respondent asked, in the alternative, that its motion be considered a motion for summary judgment. The respondent also asserted that the claimant’s reliance on Samms was misplaced. The claimant filed responses and the Director entered an order dated November 18, 2008 denying the respondent’s request.

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The Director stated that he should not interject himself in the matter since it was pending before the Office of Administrative Courts. However, the Director opined that Rule 18-6 was intended to set fees for reimbursement of a physician for conferences and “is not intended to set standards for when a conference is required, and should not be read to prohibit an employer from ever talking to an authorized treating physician without the claimant being present.” The Director went on to state that “certain conversations between an employer and an authorized treating physician are clearly inappropriate.” Director’s Order at 1 (unpaginated).

The respondent’s counsel subsequently submitted the relevant motion and responses, together with the Director’s order, to the Office of Administrative Courts. The ALJ considered the materials and entered the order under consideration. The ALJ granted summary judgment in favor of the respondent. He found it was undisputed that the respondent’s representative met with the claimant’s treating physician on October 11, 2006 and again on January 8, 2007 to discuss her claim and the status of medical treatment, together with discussions of over 30 other claims for employees. He also found that the claimant was not given notice of the meetings and did not attend them. The ALJ concluded, as a matter of law, that the case of Samms v. District Court was inapplicable. He also determined that Rule 18-6(A) did not proscribe the employer’s conduct in meeting with the claimant’s treating physician according to the undisputed facts. The ALJ determined it was unnecessary to consider the claimant’s additional argument that the respondent employer was subject to penalties under § 8-47-203(1), C.R.S. 2008 concerning her limited waiver of the physician and patient privilege.

On appeal, the claimant contests the propriety of ruling on the basis of summary judgment and asserts that the respondent’s violation of Rule 18-6(A) entitles her to penalties under § 8-43-304, C.R.S. 2008. We conclude that the ALJ erred in granting summary judgment in favor of the respondent.

Summary judgment is an available procedure in a workers’ compensation proceeding. The Office of Administrative Courts (OAC) has promulgated a procedural rule authorizing summary judgment in workers’ compensation proceedings. OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts’ Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3
at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers’ compensation proceedings Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995) Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). Summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing

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Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987).

In the context of summary judgment, we may set aside a final order if it is not supported by applicable law. See § 8-43-301(8), C.R.S. 2008 Fera v. Industrial Claim Appeals Office, 169 P.3d 231, 233 (Colo.App. 2007), cert. denied as improvidently granted, Resources Ones, LLC v. Fera, No. 07SC583 (Colo. Jan. 23, 2008) (court generally reviews grants of summary judgment de novo, but applies § 8-43-308 standard of review for court of appeals).

Section 8-43-304(4), provides that an application for hearing on penalties `shall state with specificity the grounds on which the penalty is being asserted.’ We have previously held that the purpose of requiring that an application for hearing on penalties specifically state the grounds on which the penalty is being asserted, is to notify the insurer of the alleged conduct which must be corrected so as to afford an opportunity to cure. Stilwell v. B B Excavating Inc., W.C. No. 4-337-321 (July 28, 1999). The claimant presented two bases for asserting a claim for penalties against the respondent.

The claimant asserted that the respondent’s conduct in meeting with her treating physician without notice to her entitled her to penalties according to the restrictions imposed on the waiver of the physician-patient privilege according to Samms v. District Court, 908 P.2d 520 (1996). Samms involved a medical malpractice claim in which the claimant alleged physical and mental injuries caused by the defendant’s failure to diagnose and treat a heart condition. During discovery, the defendant’s attorney sought informal interviews with the plaintiffs treating physicians. The court held that when a plaintiff alleges a physical or mental injury as the basis for a claim of damages, the patient impliedly waives the physician-patient privilege with respect to the alleged medical or mental condition. Id at 524. However, the court added that the claimant does not waive the physician-patient privilege with respect to “all his or her personal medical matters” and, concluded that discovery must not invade medical issues which remain protected by the physician-patient privilege. Id. at 525; citing Clark v. District Court, 668 P. 2d 3, 10 (Colo. 1983). Therefore, the court held that an informal interview with the plaintiffs treating physician is permissible discovery as long as the plaintiff is given reasonable advance notice of any proposed interview so that the plaintiff has an opportunity to attend the interview, and ensure that the interview is limited to matters not subject to the physician-patient privilege, or seek a protective order. The ALJ determined that any violation related t Samms did not provide a basis for penalties within the restrictions of § 8-43-304. We do not disagree with the ALJ’s dismissal of the claim for penalties to the extent that the claim is based on Samms.

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However, the claimant also asserted that the respondent’s violation of a previous version of Rule 18-6(A) entitled her to penalties. Rule 18-6 is entitled “Division Established Codes and Values.” Subsection (A) of the rule during the relevant time period read as follows:

(A) Conferences Held at the Request of a Party
Telephonic or face-to-face conferences shall be related to the injured worker’s treatment. All parties shall receive actual notification from the requesting party in advance and within 24 hours of scheduling.

See W.C. Rule of Procedure 18-6(A), 7 Code Colo. Reg. 1101-3 at 639 [eff 1/1/06] (emphasis added). The rule also referred to a maximum hourly rate billed in 15-minute increments.

Here, the ALJ determined as a matter of law that penalties were not available for the respondent’s admitted failure to notify the claimant of its meetings with the claimant’s treating physician as stated by Rule 18-6(A). The ALJ credited the Director’s comments on the intent of the rule and concluded that the rule did not prohibit the respondent employer from meeting with the claimant’s treating physician. The Director’s observation that Rule 18-6(A) is intended to set fees for reimbursing physicians for conferences, rather than to set standards for when a conference is required or to prohibit outright an employer from speaking to a treating physician without the claimant is reflected in the current version of the rule. Rule 18-6(A) now refers to a “[f]ace-to-face or telephonic meeting by a treating physician with the employer, claim representatives, or any attorney, and with or without the injured worker.” (Emphasis added) See, e.g., Sohocki v. Colorado Air Quality Control Commission, 12 P.3d 274, 277 (Colo.App. 2000) (amendments to rule raises presumption change to law intended unless rebutted by evidence that amendment intended to clarify ambiguity).

In any event, at the time of the employer’s conduct at issue the rule plainly required the employer to provide actual notice to all parties, including the claimant, in advance of a conference with the claimant’s treating physician. Moreover, we note that penalties may be entertained for alleged violations of the medical fee schedule in Rule 18. See, e.g., Ficco v. Owens Bros. Concrete Co., W.C. No. 4-546-848 (May 30, 2007) (recognizing penalties claim based on Rule 18-6(E) and Rule 16-11(A)). That being the case, we conclude that the ALJ erred as a matter of law in granting summary judgment for the respondent as to the claimant’s request for penalties pursuant to an earlier version of Rule 18-6(A).

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We further note that the failure to comply with a procedural rule constitutes the failure to obey an “order” under § 8-43-304(1) Fera, 169 P.3d at 234. Whether an employer or insurer fails to obey an order is measured by whether it fails to take the action of a reasonable insurer to comply with the order, using an objective standard of reasonableness. Id Thus, although we conclude that the ALJ erred in granting summary judgment for the respondent regarding the claim for penalties based on a violation of an earlier version of Rule 18-6(A), the ALJ will need to consider whether the respondent’s conduct was objectively unreasonable, which may include consideration of the respondent’s assertions, supported to some extent by the Director’s comments, as to its construction of Rule 18-6.

Under the circumstances, it is necessary to remand this matter to the ALJ for further proceedings to determine the claimant’s entitlement to penalties based on the respondent employer’s failure to comply with the applicable version of Rule 18-6(A).

IT IS THEREFORE ORDERED that the ALJ’s order dated November 24, 2008 is set aside and the matter is remanded for further proceedings consistent with this order.


____________________________________ John D. Baird

____________________________________ Thomas Schrant

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MICHELLE ELLER, ERIE, CO, 80516 (Claimant).





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