Opinion
W.C. No. 4-632-352.
August 17, 2005.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied a request for penalties. The claimant contends the ALJ erred in determining as a matter of law that a medical provider (Concentra) is not a "person" subject to penalties under § 8-43-304(1), C.R.S. 2004. We set the order aside and remand for entry of a new order.
The facts are essentially undisputed. On December 29, 2004, the claimant filed an application for hearing on the issue of penalties against Concentra, an authorized medical provider selected by the respondents to treat the claimant pursuant to § 8-43-404(5)(a), C.R.S. 2004. The application alleged that when Concentra provides records to an insurer it does not charge "the standard fee under the fee schedule every time records or information are provided," and when the claimant requested documents from Concentra a "bill was sent with the records." The claimant asserted that Concentra is subject to a penalty because it provided the medical records to the claimant under different terms than they were provided to the insurer in violation of § 8-43-404(2), C.R.S. 2004.
Concentra moved to dismiss the claim for penalties arguing that the ALJ had no jurisdiction over it and that it is not subject to penalties under § 8-43-304(1). Treating the motion as one for summary judgment, the ALJ accepted as true the claimant's factual allegation that Concentra routinely failed to provide treating physicians' medical reports to the claimant on the same terms and conditions as those it extended to the employer.
However, relying on Dworkin, Chambers Williams, P.C. v. Provo, 81 P.3d 1053 (Colo. 2003), the ALJ concluded Concentra is not liable for penalties under § 8-43-304(1) because it is a third-party medical provider and not specifically mentioned in the statute as an entity subject to penalties. The ALJ also agreed with Concentra's argument that it is not subject to penalties because it did not waive its common law rights and remedies so as to subject itself to the Act. Finally the ALJ construed § 8-43-404(2) as "creating a right in favor of claimant rather than creating an express duty upon Concentra."
I.
On review, the claimant contends the ALJ erred in determining that Concentra is not liable for penalties under § 8-43-304(1). The claimant argues that the plain language of the statute establishes Concentra is "any other person" which violated a provision of the Act, and the ALJ had jurisdiction to assess penalties for Concentra's conduct. We agree with this argument.
Section 8-43-304(1) provides for the imposition of penalties of up to five hundred dollars per day where any "employer or insurer, or any officer or agent of either, or any employee, or any other person violates any provision of articles 40 to 47" of the Act. To effect the legislative intent words and phrases in a statute should be given their plain and ordinary meanings when possible. This is true because the legislature is presumed to have meant what it clearly said. Spracklin v. Industrial Claim appeals Office, 66 P.3d 176 (Colo.App. 2002).
Here, Concentra does not dispute that it is a legal "person" in the sense that the statute contemplates penalizing an organization. Instead, the question is whether Concentra as a "third-party provider" is "any other person" which may be penalized for violating the statute. As commonly understood the term "any" means "without limitation or restriction." National Farmers Union Property and Casualty Co. v. Mosher, 22 P.3d 531 (Colo.App. 2000). Similarly, "any" means "all." Winslow v. Morgan County Commissioners, 697 P.2d 1141 (Colo.App. 1985).
Thus, the plain meaning of "any other person" as used in § 8-43-304(1) is all other persons, without restriction, who violate the Act. To conclude that "third-party medical providers" are exempt from penalties if they violate a specific provision of the Act would be contrary to the clearly expressed intention of the General Assembly.
Moreover, we conclude that the imposition of penalties on a third-party provider is not inconsistent with the statutory scheme. While the exclusive remedy provisions of the Act focus on the mutual renunciation of common law rights and remedies between employers and employees, the entire statutory scheme "has many characteristics of a public rights case and serves the legitimate purpose of safeguarding the public health." Indeed, the "danger to public health of workers who are injured in industrial activities led the General Assembly to enact the workers' compensation scheme as an appropriate method of dispute resolution." Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430, 436-437 (Colo.App. 2003).In Giddings v. Industrial Claim Appeals Office, 39 P.3d 1211, 1215-214 (Colo.App. 2001), the court observed that among the purposes of the Act is to compensate injured workers while "controlling costs and minimizing claim delays." The Giddings court noted that authorizing the imposition of penalties for disobedience of an ALJ's order serves these purposes by compelling compliance and deterring misconduct.
Against this backdrop we note the Act is replete with provisions regulating the cost of medical services and the practice of medicine in workers' compensation cases. E.g., § 8-42-101(3)(a)(I), C.R.S. 2004. Pursuant to the express authority contained in the Act the Director of the Division of Workers' Compensation has enacted numerous rules affecting the practice of medicine including utilization standards, medical treatment guidelines and a medical fee schedule. The Act also contains a medical utilization review (MUR) procedure designed to determine whether care provided by an authorized physician is reasonably necessary and appropriate according to accepted professional standards, and to impose sanctions including denial of payment and revocation of accreditation if treatment is not up to standards. Section 8-43-501, C.R.S. 2004; Hall v. Industrial Claim Appeals Office, 74 P.3d 459 (Colo.App. 2003) (in MUR proceeding panel members properly considered Director's medical treatment guidelines in determining whether to order change of physician because treatment was not reasonably appropriate).
We also note that medical providers do not have any right to treat a claimant, just as the claimant does not have the right to treatment from a particular provider. Rather the selection of physicians is governed by the Act, and when a provider obtains accreditation to treat workers' compensation injuries the physician agrees to abide by applicable rules, guidelines and statutes governing the practice of medicine in workers' compensation cases. Carlson v. Industrial Claim Appeals Office, 950 P.2d 663 (Colo.App. 1997); Rule of Procedure XX (B)(1)(c), 7 Code Colo. Reg. 1101-3 at 132. Hence, when a physician chooses to obtain accreditation to treat workers' compensation injuries he has consented to be regulated by the Act and should not be heard to claim that he is beyond its reach when he fails to comply with its provisions.
We do not consider Dworkin, Chambers Williams P.C. v. Provo, supra, as authority to the contrary. Dworkin addressed two issues. First, the court determined that an attorney who advises an insurer to violate an order is not "any other person" if the order was not addressed to the attorney and the attorney had no power to bind the insurer. This is true because the broad class of persons who may be penalized is modified by the phrase "who fails, neglects, or refuses to obey any lawful order." 81 P.3d at 1058. Significantly, the court expressed the view that an attorney could be found to have violated an order if the order were lawful and directed to the attorney. 81 P.3d at 1054, n. 1.
The second issue in Dworkin is whether § 8-43-304(1) authorized the imposition of penalties on the attorney if he "fraudulently and maliciously" advised the insurer to disobey the order. In this regard the court noted § 8-43-304(1) is "in derogation of the common law" and cannot be enlarged by construction or extended beyond its specific terms. Therefore, the court stated it would be improper to extend the statute "to a class of persons and a category of conduct not specifically covered by the statute," especially because "insurers and claimants who participate in the Workers' Compensation Act waive their common law rights and remedies." Id. at 1060.
Here, unlike the facts in Dworkin, Concentra is alleged to have violated a specific provision of the Act. Considering the importance of proper and timely medical care to injured workers, as well as the significance of medical information to the adjudicative process, we believe that the use of the term "any other person" in § 8-43-304(1) necessarily encompasses authorized treating physicians and providers if their conduct violates an express provision of the Act. Hence, the question of whether a physician or provider has violated the Act so as to be subject to penalties is a matter "arising under articles 40 to 47" of the Act and is within the jurisdiction of the ALJ to adjudicate. Section 8-43-201, C.R.S. 2004.
II.
The claimant also disputes the ALJ's determination that § 8-43-404(2) cannot be read to impose an express duty on Concentra to provide medical reports to the claimant under the same terms and conditions as it provides them to the employer. The claimant contends the "obvious purpose" of this statute is to insure that an injured worker who must submit to treatment by the authorized physician receives reports in the same fashion as the employer who selected the physician. We agree.
The pertinent portion of § 8-43-404(2) provides as follows:
The employee shall also be entitled to receive reports from any physician selected by the employer to treat said employee upon the same terms and conditions and at the same time the reports are furnished by the physician to the employer. The employer shall be entitled to receive reports from any physician or chiropractor selected by the employee to treat or examine said employee in connection with such injury upon the same terms and at the same time the reports are furnished by the physician or chiropractor to the employee.
As above, we must seek to effect the legislative intent by giving the words and phrases in the statute their plain and ordinary meanings. Further, we should read the statute as a whole to give consistent and harmonious effect to all its parts. See Anderson v. Longmont Toyota, 102 P.2d 323 (Colo. 2004).
The ALJ correctly states that the statute creates an "entitlement" on the part of the claimant to receive medical reports on the same terms that they are provided to the employer. However, we disagree with the ALJ that the statute does not create a duty on the part of the provider. To the contrary the statute states that the claimant is to receive the reports " from any physician selected by the employer to treat" the claimant, and specifies the terms under which the reports must be provided. (Emphasis added). Thus, the language of the statute is specific in identifying the entity or person responsible for providing reports, and directive with respect to the conditions under which they are to be provided.
Moreover, the duty created by § 8-43-404(2) arises only if the physician is one "selected by the employer." This provision recognizes that § 8-43-404(5)(a), C.R.S. 2004, gives the employer the right to select the treating physician in the first instance. Implicit in § 8-43-404(2) is the recognition that physicians selected by an employer may have a business relationship with the employer which gives the employer or its insurer an advantage in obtaining medical reports on favorable terms. Consistent with this principle, the statute creates a reciprocal requirement in cases where the treating physician has been selected by the claimant. Thus, the duty to provide reports represents a practical recognition of economic factors on the workers' compensation system.
Moreover, the claimant's failure to cooperate with treatment provided by an employer selected physician can result in the suspension or loss of benefits. Section 8-43-404(3), C.R.S. 2004; § 8-42-105(2)(c), C.R.S. 2004. The duty to provide reports on equal terms protects the claimant's right to be informed concerning the nature and quality of medical treatment, as well as insuring that the claimant receives timely notice of medical information which may affect the claimant's right to benefits. See § 8-42-107(8)(b)(I) (8)(c), C.R.S. 2004 (authorized treating physician initially determines date of maximum medical improvement and the initial impairment rating).
Finally, if the statute is read as creating a right for the claimant to receive reports but no corresponding duty on the medical practitioner to provide them, it is difficult to discern how the claimant's right could be meaningfully enforced. It would not be just or reasonable to interpret the statute as creating a right without a remedy. See Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998) (General Assembly is presumed to have intended a just and reasonable result when enacting statute).
IT IS THEREFORE ORDERED that the ALJ's order dated May 10, 2005, is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ____________________ David Cain ____________________ Curt Kriksciun Amy Barnes, Lakewood, CO, Colorado Department of Human Services, Denver, CO, Legal Department, Pinnacol Assurance — Interagency Mail, William J. Macdonald, Esq., Denver, CO, (For Claimant).Margaret Garcia, Esq., Denver, CO, (For Respondents).
Kevin J. Kuhn, Esq. and Kara Knowles, Esq., Greenwood Village, CO, (For Concentra Medical Centers).
Robert L. Allman, Esq., Denver, CO, (For Concentra Medical Centers).