W.C. No. 4-669-749.Industrial Claim Appeals Office.
July 14, 2009.
Page 1
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Walsh (ALJ) dated February 19, 2009, that denied the claimant’s request for penalties for dictating medical care and found that the respondents’ endorsement of compensability was ripe for determination at the time the application was filed. We affirm.
The claimant suffered an injury on November 26, 2005, which was originally diagnosed as a left shoulder contusion, right knee contusion, right breast contusion, left foot sprain and “left pinky strain.” The authorized treating physician (ATP) later began to treat additional body parts of the claimant, including the shoulder girdle, cervical spine and psychological conditions. On July 14, 2008 the ATP opined that the claimant was at maximum medical improvement (MMI) for her left shoulder, right wrist and right thumb. However, the ATP opined that the claimant had not yet reached MMI for injuries to her shoulder girdle, cervical spine and psychological condition. On August 14, 2008, the respondents’ medical expert opined that the claimant had reached MMI for all related conditions resulting from the injury and that he did not believe the injuries to the claimant’s shoulder girdle, cervical spine and psychological condition were causally related to her industrial accident. The respondents’ counsel forwarded the report of their expert to the ATP along with a letter requesting the ATP review the report and indicate whether he agreed with the conclusions reached by their medical expert. The respondents filed an application for hearing to obtain a ruling regarding the relatedness of the claimant’s psychological condition and injuries to her shoulder girdle and cervical spine to the admitted work injury. On September 22, 2008, the ATP issued an impairment report and indicated that the claimant had reached MMI for all conditions and that he did not believe the claimant’s shoulder girdle and cervical spine injuries were causally related
Page 2
to the claimant’s industrial accident. The respondents filed a final admission of liability consistent with the ATP’s September 22, 2008 report. On October 22, 2008, the respondents withdrew their application for hearing because the September 22, 2008 report from the ATP resolved their disputes regarding MMI and compensability.
The ALJ determined that there was no ambiguity as to the ATP’s opinion that the claimant was not at MMI at the time the respondents’ application for hearing was filed. Further, there was no evidence that a DIME had been sought. Because an ALJ cannot determine MMI in the absence of a DIME, the ALJ concluded that the respondents had filed an application on an issue that was not ripe. The ALJ awarded attorney fees and costs as a result of the claimant’s preparation for hearing on the issue of MMI. The respondents did not appeal this determination.
However, the ALJ also determined that the respondents’ endorsement of compensability was ripe for determination at the time the application was filed because respondents retained the right to litigate the causation or relatedness of certain body parts to the admitted industrial injury. The ALJ denied the claimant’s request for attorney fees and costs resulting from the claimant’s preparation for hearing on the issue of MMI. The claimant appeals this ruling and also contends the ALJ erred in failing to award penalties against the respondents for dictating medical care.
I.
The claimant first contends that the ALJ erred in not awarding attorney fees and costs pursuant to § 8-43-211(2)(d) C.R.S. 2008 for filing an application for hearing listing the issues of “compensability.” The claimant argues that that issue was not ripe because the respondents had filed a general admission of liability. The claimant contends the ALJ impermissibly reframed the issue endorsed by the respondents from one of “compensability” to one of “causation and medical benefits.” We are not persuaded to interfere with the ALJ’s determination.
Section 8-43-211(2)(d), provides for the imposition of costs and attorney fees against a person requesting or setting a hearing “on issues which are not ripe for adjudication.” The issue of “ripeness” under this statute was considered in BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997). The court stated, “a request for penalties predicated on a claim that an appeal has been taken in bad faith must await the adjudication of that appeal before it becomes ripe for determination.” Id. At 538. Thus, BCW Enterprises
stands for the proposition that an issue is not “ripe for adjudication” if, under the statutory scheme, there is a legal impediment to its resolution. The legal impediment in BCW Enterprises was the prospect of inconsistent results if the penalty claim was considered “ripe” for adjudication during the pendency of the appeal.
Page 3
Here the ALJ determined that the respondents filed the application for hearing to obtain a ruling regarding the relatedness of the claimant’s psychological injuries and injuries to her shoulder girdle and cervical spine to the admitted work injury. The claimant does not contend that the issue of the relatedness or causation of these conditions was not ripe when the application for hearing was filed. Rather the claimant contends that “compensability” was not ripe because the respondents had filed an admission. The claimant contends the ALJ erred in reframing the issue of compensability into one of causation.
The term “compensability” is not defined in the Workers’ Compensation Act The ALJ relied in part on Snyder v. Indus. Claim Appeals Office 942 P.2d 1337 (Colo.App. 1997) for the general proposition that even after an admission of liability is filed, the respondents retain the right to dispute the compensability or relatedness of the need for continuing treatment. The claimant argues that Snyder does not hold that a challenge of compensability is appropriate when determination of causation of the need for medical benefits is at issue. I Snyder, the employer filed of a general admission of liability after the claimant sustained an on-the-job injury when a piece of drywall fell and struck him in the back. The claimant later underwent a lung biopsy and the employer refused to pay for further medical and temporary disability benefits incurred by the claimant for his lung condition. The claimant notes that the court stated in Snyder that “in a dispute over medical benefits that arises after the filing of a general admission of liability, an employer generally can assert, based on subsequent medical reports, that the claimant did not establish the threshold requirement of a direct causal relationship between the on-the-job injury and the need for medical treatment.” However, in Snyder the court also declined to limit the ability of the employer to dispute a claimant’s entitlement to continue medical benefits where “medical information obtained subsequent to an admission of liability brings into question th compensability of the claimant’s injury.” (emphasis supplied). It thus appears the court used the terms compensability and causation somewhat interchangeably.
Further, in Hanna v. Print Expediters Inc. 77 P.3d 863 the court citing Snyder v. Industrial Claim Appeals Office, supra, noted that “[o]nce the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the employer’s right to contes compensability, reasonableness, or necessity.” (emphasis supplied). We further note that the Panel in discussing a claimant’s entitlement to future medical benefits in claims admitted or found to be compensable has stated that medical benefits are subject to the respondents’ right to contest the “compensability” of any particular treatment on grounds the treatment is not authorized or not reasonably necessary. See Jump v. Earthgrains/Sara Lee Bakery Group, W. C. No. 4-553-695 (December 02, 2005); Donley v Swinerton Walberg
Page 4
Company, W. C. No. 4-447-698 (September 16, 2005): Hennessy v. Clayton Group Services, W. C. No. 4-559-467 (December 07, 2004); Miller v. Saint Thomas Moore Hospital, W. C. No. 4-218-075 (September 01, 2000). The term compensability has been given a broader meaning by the Courts and the Panel than argued by the claimant.
Further, in our view it cannot reasonably be argued that the respondents failed to provide the claimant with adequate notice regarding the precise issue sought to be litigated. Thus, in a pleading dated November 3, 2008, over a month before the hearing, the respondents stated that the application for hearing endorsed the issue of compensability of the additional injuries of left knee, shoulder girdle, cervical spine and psychological care. Exhibit D at 2. Further, there were numerous medical reports addressing this same issue. Under the circumstances here, we cannot say that the ALJ erred in determining that when the respondents filed the application for hearing they sought to obtain a judicial ruling regarding the relatedness of the claimant’s psychological injuries and injuries to her shoulder girdle and cervical spine to the admitted work injury. Consequently, the ALJ did not err in refusing to award attorney fees and costs pursuant to § 8-43-211(2)(d).
II.
The claimant also argues that the ALJ erred in determining that the respondents did not dictate medical care in violation of § 8-43-503(3), C.R.S. 2008 and in failing to award penalties under § 8-43-304(1), C.R.S. 2008 for that alleged violation. The ALJ determined that the claimant failed to prove by a preponderance of the evidence that the respondents violated § 8-43-503(3) because the employer did not issue an order or command concerning the type or duration of treatment. The ALJ denied and dismissed the claim for a penalty against the respondents.
The claimant has not addressed this issue in her brief in support of her petition to review. Further, the prayer for relief in the claimant’s brief requests only an order of remand to the ALJ for entry of an order against respondents for the filing of an application for hearing on an issue that was not ripe for determination. The claimant’s failure to brief the issue of alleged dictation of medical care limits the effectiveness of our review. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
However, to the extent that the claimant has not abandoned this argument we note from the claimant’s post-hearing position statement that she claims that penalties under § 8-43-503(3) C.R.S. 2008 are required because of an August 15, 2008 letter written to the claimant’s ATP by counsel for the respondents. It appears from the claimant’s post-hearing position statement that the claimant argued that sending the ATP a report from another physician who had placed the claimant at MMI and asking the ATP if he would opine as to whether he agreed with the physician’s opinion was improper. The claimant
Page 5
argues that the foreseeable natural consequence of this action would be a premature opinion of MMI, resulting in withholding of necessary medical care.
The claimant had the burden of proof to establish the right to the penalty. Section 8-43-201 C.R.S. 2008; Long v. DBF, LLC, W. C. No. 4-264-006 (June 5, 1997). Whether the claimant sustained her burden of proof is a question of fact for resolution by the ALJ. We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984); Seawell v. Foto Fast, Inc,. W. C. No. 4-304-561 (December 11, 1997).
Section 8-43-503(3) states that no representative of the employer or insurer shall “dictate to any physician the type or duration of treatment” to be provided. As noted by the ALJ, the Panel has concluded that § 8-43-503(3) precludes a representative of the insurer from issuing commands to a treating physician concerning the type or duration of treatment to be provided to the claimant. York v. Larchwood Inns, W.C. No. 4-365-429 (November 7, 2002).
Here, the ALJ made the following findings. The August 15, 2008 letter did not have the intent or effect of dictating medical care. Exhibit 28. The record does not contain probative evidence demonstrating that the respondents ordered, directed or commanded the ATP to engage in a specific course of conduct. There is not evidence in the record that the ATP was influenced or compelled to engage in a specific course of conduct because of the actions of the respondents. There is no evidence in the record to support that treatment was delayed or that a course of treatment was altered because of the actions of the respondents.
Here the bulk of the ALJ’s findings are framed as the lack of any evidence to support certain issues. As noted above, because of the lack of a brief we cannot ascertain whether the claimant even contests any of these factual findings and we decline to speculate further concerning the basis of the claimant’s appeal. Our review did not establish evidence that would compel factual findings contrary to the ALJ’s determination. In particular we note that the ALJ’s analysis of the August 15, 2008 letter and plausible inferences drawn from the record support a determination that the respondents did not dictate to the ATP the type or duration of treatment to be provided in violation of § 8-43-503(3). Consequently, we are not persuaded to interfere with the ALJ’s denial of penalties.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 19, 2009 is affirmed.
Page 6
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Krisciun
______________________________ Thomas Schrant
Page 7
JOSEPHINE GIANZERO, COLO SPRINGS, CO, (Claimant), WAL-MART STORES, INC., Attn: BETH MCELROY, COLO SPRINGS, CO, (Employer), AMERICAN HOME ASSURANCE, Attn: LEA ANN GAVELLAS, C/O: CMI, BENTONVILLE, AR, (Insurer), STEVEN U. MULLENS, PC, Attn: STEVEN U. MULLENS, ESQ., COLO SPRINGS, CO, (For Claimant).
RITSEMA LYON, PC, Attn: MARGARET A METZGER, ESQ., DENVER, CO, (For Respondents).
Page 1