W.C. No. 4-218-075Industrial Claim Appeals Office.
September 1, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which required them to pay for Dr. Rook’s treatment, and imposed penalties under section § 8-43-401(2)(a), C.R.S. 1999, for their failure to pay medical benefits. We affirm the award of medical benefits and reverse the assessment of penalties.
In 1993, the claimant suffered compensable injuries. The claimant reached maximum medical improvement (MMI) on June 3, 1996. In an order dated May 14, 1997, ALJ Henk (mistakenly identified as ALJ Wheelock in the ALJ’s order) awarded permanent partial disability benefits. ALJ Henk also determined Dr. Rook is an authorized treating physician and awarded future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
In 1998 Dr. Rook prescribed medication, physical therapy and EMG studies. The respondents refused to authorize the treatment and requested a medical utilization review (MUR) of Dr. Rook’s treatment. A majority of the MUR panel members including Dr. Basse and Dr. Lockwood, opined Dr. Rook’s treatment was not related to the industrial injury. However, a majority of the panel members recommended that Dr. Rook remain as the authorized provider, and there was not unanimous agreement that payment should be retroactively denied. Based upon the opinion of the majority of the panel members, the Director of the Division of Workers’ Compensation (Director) issued an order dated April 2, 1999, which denied the respondents’ request for a change of provider. See Section 8-43-501(3), C.R.S. 1999.
Relying on the opinions of Dr. Basse and Dr. Lockwood that further care was not reasonably necessary, the respondents issued a letter dated April 8, 1999, which notified the claimant that no further treatment would be authorized or paid in the claim. Thereafter, the claimant sought an order imposing penalties for the respondents’ failure to authorize further medical treatment.
Section 8-43-401(2)(a) provides that:
“If any insurer or self-insured employer willfully delays payment of medical benefits for more than thirty days or willfully stops payments such insurer or self-insured employer shall pay a penalty to the division of eight percent of the amount of wrongfully withheld benefits.” (Emphasis added.)
Crediting the opinions of Dr. Rook, and rejecting the contrary opinions of Dr. Basse and Dr. Lockwood, the ALJ found that all care and treatment proposed by Dr. Rook is reasonable and necessary to maintain the claimant’s condition from the industrial injury. Therefore, the ALJ ordered the respondents to pay for the treatment prescribed by Dr. Rook and his referrals.
The ALJ also found the respondents “willfully” refused to provide the claimant with further medical care by refusing to obey ALJ Henk’s order dated May 14, 1997, and the Director’s order dated April 2, 1999. Consequently, the ALJ ordered the respondents to pay a penalty equal to 8 percent of the “wrongfully” withheld benefits.
I.
On review the respondents contend the award of medical benefits is not supported by the record or the applicable law. In support, the respondents contend there is insufficient evidence of a causal relationship between the claimant’s need for further treatment and the industrial injury. We disagree.
Contrary to the respondents’ contention, the claimant need not be receiving treatment at the time of MMI nor prove that a particular course of treatment has been prescribed to obtain a general award of Grover-type medical benefits. Rather, a claimant is entitled to Grover-type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits. Milco Construction v. Cowan, 860 P.2d 539
(Colo.App. 1992). However, the general award is subject to the respondents’ right to contest the compensability of any particular treatment on the grounds the treating physician is not authorized to treat the injury, or the treatment is not reasonable or related to the industrial injury. Grover v. Industrial Commission, supra; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997); Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999).
Insofar as the respondents contest the ALJ Henk’s award o Grover-type benefits, that issue is not properly before us on review. The respondents did not appeal the May 14 award of future medical benefits. Consequently, ALJ Henk’s order is final and the respondents waived any argument that the award was erroneously entered. Section 8-43-301(2), C.R.S. 1999; Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984).
With regard to the particular treatment prescribed by Dr. Rook, the record reflects a direct conflict between Dr. Rook and Drs. Basse and Lockwood concerning the cause of the claimant’s need for additional treatment. Within his sole prerogative the ALJ resolved the conflict in favor of Dr. Rook. The ALJ was free to consider Dr. Rook’s “very strong feelings” about the claim in assessing the weight and credibility of his testimony. (See Tr. p. 51). However, it did not preclude the ALJ from crediting his opinions. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion).
Dr. Rook’s testimony and medical reports contain substantial evidence to support the ALJ’s finding of a causal connection between the claimant’s need for additional treatment and the 1993 industrial injury. (Tr. p. 46). Furthermore, Dr. Rook’s opinion that the industrial injury is the proximate cause of the claimant’s need for additional treatment is buttressed by evidence that the claimant’s 1997 automobile accident was a minor incident. (Tr. p. 66). Consequently, we cannot say the ALJ erred as a matter of law in crediting Dr. Rook’s testimony. See Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997) (ALJ’s credibility determinations are binding unless the testimony is so rebutted by hard, certain evidence that as a matter of law the ALJ would err in crediting the testimony).
The respondents further arguments have been considered and are not persuasive. The Thus, the respondents have failed to establish grounds to disturb the ALJ’s award of medical benefits.
II.
The respondents also contend the ALJ erred in assessing penalties. In the context of § 8-43-401(2)(a), the term “willful” means that the action was the result of “deliberate intent,” and the term wrongful connotes “unlawful” or “unjust” acts. Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997). Accordingly, to impose penalties under § 8-43-401(2)(a), the ALJ must find that the insurer’s conduct was both deliberate and unlawful. Arguments predicated on rational legal or factual bases are not “unlawful.” Sears v. Penrose Hospital, supra.
It is undisputed that the respondents’ refusal to provide additional medical benefits was deliberate and therefore, “willful.” However, the respondents contend their actions were not “wrongful.” The ALJ did not make any specific findings of fact concerning whether the respondents’ conduct was “wrongful.” However, we conclude as a matter of law the challenged conduct was not “wrongful,” within the meaning of § 8-43-401(2)(a). Therefore, we set aside the penalty order.
Contrary to the ALJ’s determination, neither the Director’s order nor ALJ Henk’s order obligated the respondents to provide any particular medical treatment. ALJ Henk merely entered a general Grover order determining the claimant is entitled to future care that is reasonable and necessary to treat the compensable injury. She did not order the respondents to provide any particular medical treatment. Similarly, the Director did not order the respondents to provide any specific treatment. The Director simply denied the respondents’ request for a change of provider in accordance with the statute governing MUR proceedings, and thus, Dr. Rook remained authorized to treat the industrial injury. Under these circumstances, the ALJ erred insofar as he determined that the respondents’ failure to authorize further treatment violated the orders of the Director and ALJ Henk.
Moreover, as stated above, an award of Grover-type benefits does not preclude the respondents from denying liability for any particular treatment on grounds the treatment is necessitated by conditions other than the industrial injury. Here, the respondents had medical evidence from Dr. Basse and Dr. Lockwood that the claimant’s need for the treatment prescribed by Dr. Rook was not causally related to the industrial injury. Under these circumstances, the respondents were entitled to put the claimant to her burden of proving by a preponderance of evidence that the disputed medical treatment was reasonably necessary to relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, supra; cf. Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). Because the respondents’ refusal to authorize further treatment was based upon their exercise of a legal right to contest the cause of the need for treatment, and because they had an evidentiary basis for contesting causation, their actions were not illegal, or unjust, or “wrongful.” Consequently, the respondents are not subject to penalties under §8-43-401(2)(a).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 3, 1999, is set aside insofar as it imposed a penalty equal to 8 percent of withheld medical benefits. In all other respects the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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 September 1, 2000 to the following parties:
Sandra C. Miller (Anderson), 2650 Fowler St., Canon City, CO 81212
Saint Thomas More Hospital, 1338 Phay Ave., Canon City, CO 81212-2302
Colorado Hospital Association Trust, Sharon Thompson, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
Barbara Carter, Division of Workers’ Compensation — Interagency Mail, James A. May, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Clyde E. Hook, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy