Opinion
W. C. No. 4-669-749.
December 10, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated August 20, 2007 that imposes penalties against them on the basis that the employer dictated the type or duration of medical treatment. We affirm.
The ALJ's Findings of Fact, Conclusions of Law, and Order (Order) reflect the following factual findings. The employer referred the claimant to Concentra Health Services for treatment of her compensable injury. Dr. Quick is an authorized medical care provider practicing at Concentra. The employer requested or approved of the use of written directives by medical providers at Concentra that included restrictions on the dispensing of medicine and required that they obtain the pre-authorization of referrals by an adjuster. Dr. Quick considered these directives to interfere with his exercise of medical judgment.
Dr. Quick referred the claimant to Dr. Hart, a hand surgeon. The claimant sought a change in physician from Dr. Hart to Dr. Conyers. The insurer's counsel denied the request, but stated that Dr. Quick and Dr. Hart were capable of determining on their own whether an additional referral is warranted and, also, that the respondents would leave it to their discretion. Dr. Quick subsequently referred the claimant to Dr. Conyers.
A case manager from a subsidiary of the employer contacted someone at Concentra and asked for the medical necessity of referring the claimant to Dr. Conyers. The person from Concentra contacted Dr. Quick, in turn, and advised him that the adjuster questioned why he made the referral. Dr. Quick then stated he would "hold off" on the referral until after his deposition in this matter. Concentra advised both the employer's case manager and the claimant that the claimant's appointment with Dr. Conyers was deferred until after Dr. Quick's deposition. After Dr. Quick's deposition, the case manager advised the person at Concentra that the referral of the claimant to Dr. Conyers was authorized. Dr. Conyers examined the claimant and stated that her compensable injury required surgery.
The ALJ concluded that the insurer used the written directives at Concentra to attempt to dictate to authorized treating physicians the type or duration of treatment. More specifically, the ALJ determined that the employer interfered with Dr. Quick's care of the claimant by requiring pre-authorization of Dr. Quick's referral of the claimant to Dr. Conyers, and then refusing to pre-authorize the referral until after Dr. Quick placed the referral "on hold." The ALJ further discerned a pattern of attempts to dictate medical care by the insurer. Finally, the ALJ determined that the employer dictated medical care from April 20, 2007, the date Dr. Quick put his referral on hold, to May 25, 2007, when the employer approved the referral. The ALJ imposed a daily penalty of $400 for a total of $14,000.
The respondents challenge the basis for the ALJ's assessment of penalties. They assert that the ALJ erred to the extent that he found the actions of Concentra to support the imposition of penalties. The respondents further assert that the record does not support a finding that the employer dictated medical treatment in relation to Dr. Quick's referral of the claimant to Dr. Conyers. We have reviewed the record and decline to disturb the ALJ's order.
We note the claimant's assertion that the parties stipulated at hearing that the employer was self-insured. Claimant's Brief at 2. The record supports this assertion. Tr. at 7, 163. However, the ALJ made findings and conclusions regarding an insurer, as well as the employer. In any event, the ALJ's findings and conclusions are sufficient for purposes of review. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (ALJ's order sufficient for purposes of review if legal and factual bases of order apparent from findings of fact and conclusions of law).
The ALJ determined that the employer directly interfered with an authorized treating physician's care of the claimant. Specifically, the ALJ determined that the employer required Concentra to seek its pre-authorization of Dr. Quick's referral of the claimant to Dr. Conyers. Order at 5, ¶ 6. He made specific findings concerning the employer's role in effectively delaying the claimant's consultation with Dr. Conyers.
Dr. Quick was an authorized medical care provider who practiced at Concentra. Order at 2, ¶ 1. Dr. Quick testified that he worked at Concentra Medical Centers as an occupational medicine physician who treated the claimant. Tr. at 8-9. The employer requested, or approved of directing, Dr. Quick to seek an adjustor's pre-authorization before making any referrals by requiring him to use a "Recheck Injury Flowsheet." Order at 2, ¶ 2. Ms. Taneika Shanelle Veasley-Brown, a referral coordinator at Concentra, testified that the employer required that referrals be authorized by an adjuster. Tr. at 97-98, 136-38. Dr. Quick testified that the various restrictions reflected in the flow sheet were requested by the employer to "become part of the protocol for treatment." Quick Depo. at 50; Quick Depo., Exhibit 7 ("Recheck Injury Flowsheet," Page 1 of 2). Dr. Quick viewed the flow sheet to be directives and believed that they directly interfered with the exercise of his medical judgment concerning the treatment of his patients. Order at 2, ¶ 3. Dr. Quick testified that the directive of "no prescribed work schedule" possibly undercut his discretion, and indicated that the prohibition against prescribing health club memberships directly interfered with his ability to exercise reasonable medical judgment in the treatment of his patient. Quick Depo. at 53, 55, 60-61.
In a report dated April 6, 2007, Dr. Quick recommended that the claimant be seen by Dr. Conyers for evaluation and treatment in light of her dissatisfaction with another hand surgeon. Order at 2-3, ¶ 6. Dr. Quick acknowledged that a problem developed between the claimant and Dr. Hart, a surgeon. Tr. at 11. He indicated that he referred the claimant to Dr. Conyers on April 6, 2007. Tr. at 11-12, 16-17. A written report from Dr. Quick dated April 6, 2007 states that he "recommended alternate hand surgical opinion for evaluation and treatment with David Conyers, MD, in Denver." Exhibit E at 7. An employee of Concentra sent the referral to the employer and requested authorization for the referral to Dr. Conyers. Order at 3, ¶ 7. A facsimile transmission from a referral coordinator at Concentra is attached to a form referral from Dr. Quick requesting a referral to Dr. Conyers. Exhibit D. Ms. Gavellis acknowledged receiving Dr. Quick's referral to Dr. Conyers. Tr. at 116-17, 122-23. When the claimant, through her counsel, requested a change in physician from Dr. Hart to Dr. Conyers, the employer's counsel denied the request, but replied that Dr. Quick and Dr. Hart were capable of determining whether or not an additional referral is warranted and, also, that they would leave it within the doctors' sound discretion. Order at 2, ¶ 5. The employer's counsel sent a letter to the claimant's counsel to that effect. Exhibit N.
Nonetheless, a case manager for a subsidiary of the employer asked the Concentra employee for the medical necessity of the referral. Order at 3, ¶ 8. Ms. Gavellis, a senior case manager employed by "Claims Management, Incorporated," or CMI, which she believed to be wholly owned by Wal-Mart, testified that she "contacted Shanelle at the administrative office at Concentra and requested the medical necessity of switching to Dr. Conyers because [the claimant] had been treating with Dr. Hart." Tr. at 100-01, 110. The Concentra employee advised Dr. Quick of the case manager's inquiry and he indicated that he would wait until after his deposition on May 18, 2007 before he would make the referral to Dr. Conyers. Order at 3, ¶ 9. Ms. Brown indicated that she advised Dr. Quick that an adjuster was requesting additional information about the referral. Tr. at 141. Her notes reflect a communication she had with Dr. Quick regarding placing the referral on hold pending a deposition. Tr. at 139-40; Exhibit C. Ms. Veasley-Brown testified that they were "holding the referral" pending a deposition, meaning that the referral was neither denied nor approved. Tr. at 143.
Concentra advised both the case manager and the claimant that the referral was deferred until after Dr. Quick's deposition. Order at 3, ¶¶ 10-11. Ms. Veasley-Brown testified that she advised both the adjuster and the claimant that the referral was on hold pending a deposition. Tr. at 143, 145. Dr. Quick referred the claimant to Dr. Conyers on May 25, 2007. Order at 3, ¶ 14. Dr. Quick indicated that on May 25, 2007, he wrote a referral to Dr. Conyers for examination and surgical treatment of the claimant's left thumb. Quick Depo. at 116-17; Quick Depo. Exhibit 10; Exhibit R. On May 30, 2007, the case manager advised the Concentra employee that Dr. Quick's referral of the claimant to Dr. Conyers was authorized. Order at 3, ¶¶ 16, 18. Ms. Gavellis indicated that Dr. Conyers was authorized after Dr. Quick's deposition. Tr. at 128. Ms. Veasley-Brown testified to the effect that Dr. Conyers was an authorized treating physician on May 30, 2007. Tr. at 149.
Dr. Conyers examined the claimant and recommended surgery for her compensable injury. Order at 3, ¶ 17. In his report dated June 13, 2007, Dr. Conyers describes his examination of the claimant and he recommends that "surgical treatment with tendon interposition arthroplasty and volar collateral ligament reconstruction would be her best opinion." Exhibit A at 2. The claimant's left wrist and thumb will get worse due to the delay in treatment. Order at 4, ¶ 19. Dr. Quick testified that the claimant's function "will gradually get worse because of the delay in treatment of the left wrist and thumb." Quick Depo. at 41. The employer, through Concentra, caused Dr. Quick to place his referral on hold, thereby dictating the claimant's medical treatment. Order at 4, ¶ 20. The testimony of Ms. Veasley-Brown, Ms. Gavellis, and Dr. Quick support the ALJ's inference that the employer effectively dictated medical treatment by causing Dr. Quick to suspend his referral of the claimant to Dr. Conyers.
We must uphold the ALJ's findings if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2007. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). This standard of review requires that we consider the evidence in the light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The respondent's arguments notwithstanding, there is substantial evidence in the record to support the ALJ's findings related to the conclusion that the employer effectively dictated the claimant's medical treatment concerning the referral to Dr. Conyers.
Furthermore, the employer's conduct as found by the ALJ supports the imposition of penalties. Section 8-43-503(3), C.R.S. 2007 provides that employers and insurers "shall not dictate to any physician the type or duration of treatment or degree of physical impairment." This is not a case in which the employer could be excused from the application of this statute by seeking to invoke the regulatory scheme for prior authorization concerning a contested medical treatment. See Pena v. Industrial Claim Appeals Office, 117 P.3d 84, 89-90 (Colo.App. 2004) (discussing application of § 8-43-503(3) where no prior authorization under rules applies and imposing general penalty for what constituted willful refusal to provide medical treatment in form of transportation to medical appointments). Neither was the employer challenging the reasonableness of and necessity for a proposed medical treatment, which differs from dictating medical treatment. Brodeur v. Interstate Distributor Co, W.C. No. 4-383-624 (March 26, 2001). Instead, according to the ALJ's findings, the employer's inquiry into the need for Dr. Quick's referral set into motion the effective delay of the referral to Dr. Conyers, in part, because of the employer's requirement that referral be pre-authorized by its adjuster.
However, "when medical treatment results from a referral by an authorized treating physician, such treatment is considered part of the normal progression of authorized treatment and the express consent of the employer . . . is not required." Sims v. Industrial Claim Appeals Office, 797 P.2d 777, 780 (Colo.App. 1990), citing Greager v. Industrial Comm'n, 701 P.2d 168 (Colo.App. 1985). See also, Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400 (December 14, 1998) (Act contemplates that if claimant requires treatment from specialist, the authorized treating physician will make necessary referrals and respondents will be liable for specialized treatment); Vargas v. Suetrack USA, W.C. No. 4-019-020 (December 30, 1993) (treating physician's referral bound respondents to pay for treatment without either treating physician making referral in writing or claimant consulting respondents prior to obtaining prescribed treatment). The ALJ's order reflects his consideration of these principles in the imposition of penalties. Order at 4-5, ¶¶ 5-6. The respondents' remaining arguments do not persuade us to disturb the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated August 20, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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, P.C., Attn: STEVEN U. MULLENS, ESQ., COLO SPRINGS, CO, (For Claimant).
RITSEMA LYON, P.C., Attn: JOSEPH C. IRWIN, ESQ., COLO SPRINGS, CO, (For Respondents).