W.C. No. 3-887-322Industrial Claim Appeals Office.
April 15, 1997
FINAL ORDER
The claimant seeks review of a final order of Chief Administrative Law Judge Felter (ALJ), which denied her claim for penalties. We affirm.
The claimant sustained a compensable low back injury in 1987. Commencing May 6, 1989, the injury was treated by Dr. Hussey, who diagnosed a lumbosacral facet syndrome. In a report dated, November 28, 1995, Dr. Hussey prescribed Ibuprofen, Zantac, Soma, and Darvocet. Dr. Hussey also recommended a L5-S1 facet block and referred the claimant for physical therapy.
On January 9, 1996, the respondents refused to “pre-authorize” payment for the treatment recommended by Dr. Hussey on November 28. Nevertheless, Dr. Hussey provided the treatment.
The claimant contends that the respondents’ refusal to pre-authorize payment for Dr. Hussey’s treatment violated the Rules of Procedure, Part XVI(J), 7 Code Colo. Reg. 1101-3 at 70-83 (1996), because the respondents failed to comply with the procedures listed therein. Rule XVI(J) applies “Where the payer seeks to deny prior authorization for payment of a requested service, or payment of a service otherwise requiring prior authorization, provided without obtaining such prior authorization.”See [Rule XVI(B)(1)(j) at page 71 defines “payer” as the “insurer”].
The ALJ found that Dr. Hussey’s November 28 treatment recommendations involved medical treatment “falling within” the Medical Fee Schedule adopted by the Director of the Division of Workers’ Compensation (Director) and currently found in the Rules of Procedure, Part XVIII, 7 Code Colo. Reg. 1101-3 at 87 et. seq. (1995). Further, the ALJ determined the rules for pre-authorization of medical treatment do not apply to medical procedures “falling within the fee schedule.” Consequently, the ALJ determined that Rule XVI(J) is not applicable to this claim, and therefore, denied the claimant’s penalty request.
On appeal, the claimant does not dispute the ALJ’s determination that the medical services recommended by Dr. Hussey on November 28 fall “within” the Medical Fee Schedule. Instead, the claimant argues that the ALJ erroneously determined that Rule XVI(J) does not apply to the denial of a pre-authorization request for medical services which “fall within” the Medical Fee Schedule. Further, the claimant argues that the ALJ’s findings compel the conclusion that the respondents did not comply with the requirements of Rule XVI(J). Therefore, the claimant argues that the ALJ erred in failing to impose penalties. The ALJ’s statement of the law is overly broad however, we conclude that he did not err in denying penalties under the facts of this case.
As we have previously held, the Rules of Procedure are subject to the normal rules of statutory construction. Carrillo v. Sam Ray’s Frozen Foods, Inc., W.C. No. 4-191-992 September 27, 1996; Porras v. World Service Co. Inc., W.C. No. 4-155-161, October 12, 1995. Because the Rules of Procedure were enacted by the Director, we must construe Rule XVI in such a manner as to further the Director’s intent. See §8-47-107 C.R.S. (1996 Cum. Supp.); Christie v. Coors Transportation Company, ___ P.2d ___ (Sup. Ct. 96SC66, March 31, 1997); Baylog Inc., v. Industrial Claim Appeals Office, 923 P.2d 361 (Colo.App. May 16, 1996). To discern the Director’s intent we must first examine the language of the statute, and unless the result is absurd, the words must be given their plain and ordinary meanings. Christie v. Coors Transportation Company, supra.
As the ALJ recognized the scope of Rule XVI(J) is clarified by Rule XVI(D)(1), which provides that:
“When services provided to an injured worker fall within the purview of the fee schedule, all payers shall use the fee schedule when determining maximum allowable fees. When the payer determines that a request for prior authorization for payment or bill for services falls outside of the fee schedule, the payer and the provider shall comply with the provisions set forth in sections (I) `Prior Authorization for Payment,’ (J), `Denial of Prior Authorization for Payment,’ (K), `Timely Payment for Services,’ and (L), `Medical Fee Schedule Disputes.'” (Emphasis added).
As determined by the ALJ, Rule XVI(D)(1) illustrates the Director’s intent to create separate and distinct procedural requirements for the provision of medical services which fall “within” the Medical Fee Schedule, and services which are “outside” the Medical Fee Schedule.
Specifically, Rule XVI(D)(1) provides that a request for prior authorization of a service which “falls outside” the Medical Fee Schedule is subject to the provisions of Rules XVI(I), (J), and (K). This distinction is also illustrated by Rule XVI(F)(2), which states that “payment for billed services not identified in the fee schedule” shall require prior authorization for payment by the payer, as provided in Rules XVI(I) and (J). Similarly, Rule XVI(I)(c) provides that prior authorization from the payer is required when the service is not “identified or included” in the Medical Fee Schedule as “mentioned in section (F), paragraph 2.”
In contrast, Rule XVI(D)(1) provides that medical services which fall within the Medical Fee Schedule are subject to the specific requirements of the Medical Fee Schedule. The Medical Fee Schedule requires that some, but not all, medical services “identified” therein require prior authorization of payment. For example, Part XVIII(8)(b) at page 115, lists the maximum fee for non-emergency out-patient surgery, and requires prior authorization from the payer for such surgery. Similarly, Rule XVIII(9)(1) at page 118, states the per-diem reimbursement rate for home infusion therapy, and also requires prior authorization for payment of all home therapy. Accordingly, on its face, the Medical Fee Schedule requires pre-authorization for a portion of the services listed in the schedule.
We also note that Rule XVI(I)(1)(b) requires the medical provider to obtain prior authorization from the payer when the “service is identified within the medical fee schedule as requiring prior authorization for payment.” Furthermore, Rule XVI(I)(2)(f) states that if the payer denies a request for prior authorization “under this section,” the payer must comply with the provisions of Rule XVI(J). Therefore, contrary to the ALJ’s conclusion, the rules of procedure concerning pre-authorization of treatment do apply to some medical services which fall “within” the Medical Fee Schedule.
As argued by the claimant, this construction is consistent with the “Statement of Purpose” in part (A)(1) of Rule XVI. Part(A)(1) states that the purpose of the rule is to define “administrative procedures and dispute resolution procedures to implement” the Medical Fee Schedule.
Under these circumstances, the ALJ erred insofar as he determined that the rules for pre-authorization and the denial of pre-authorization never apply to medical services which “fall within” the Medical Fee Schedule. However, because Dr. Hussey’s treatment involved services which fall “within” the Medical Fee Schedule, the respondents were not required to comply with Rule XVI(J) unless they denied prior authorization for a service which is identified by the Medical Fee Schedule itself as requiring pre-authorization for payment.
The claimant does not assert that any of the treatment recommended by Dr. Hussey is treatment for which the Medical Fee Schedule requires pre-authorization for payment. See (correspondence December 5, 1996 from claimant’s counsel to the ALJ; Opening Brief in Support of Petition to Review). Under these circumstances, we cannot say that the ALJ erred in refusing to impose penalties for the respondents’ failure to comply with Rule XVI(J).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 11, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Orderis commenced in the Colorado Court of Appeals, 2 East 14th Avenue,Denver, CO 80203, by filing a petition for review with the court, withservice of a copy of the petition upon the Industrial Claim AppealsOffice and all other parties, within twenty (20) days after the date thisOrder is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996Cum. Supp.).
Copies of this decision were mailed April 15, 1997 to the following parties:
Susan Terrones, 4107 Dale Ave., Naples, FL 33962
Sharon Thompson, Colorado Hospital Association Trust, P.O. Box 22438, Denver, CO 80222
Michael S. Kocel, Esq., 2301 E. Pikes Peak, Colorado Springs, CO 80909 (For the Claimant)
Anne Smith Myers, Esq. Bernard Woessner, Esq., 3900 E. Mexico, Ste. 1000, Denver, CO 80210
(For the Respondents)
BY: _______________________