Opinion
W.C. No. 4-611-326.
July 7, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which denied a claim for penalties under § 8-43-304(1), C.R.S. 2004. The claimant argues that because the respondents filed a general admission of liability (GAL) for medical benefits they were obligated to provide certain treatment recommended by two physicians, and must be penalized for failing to do so. We affirm.
In July 1999 the claimant sustained a compensable back injury while working for another employer. Ultimately, the claimant received a twenty-one percent whole person impairment rating for injuries to his low back and right hip. Diagnoses included mechanical low back pain "status post L4-5 discectomy," and degenerative disc disease at L5-S1.
On October 28, 2003, the claimant sustained a compensable injury while employed by the respondent employer. The ALJ found this injury was reported to the employer as an injury to the left hip. The claimant went to the emergency room where he was given a diagnosis of left hip strain and possible bursitis.
On November 26, 2003, the claimant was seen by Dr. Bohachevsky on referral from Dr. Lopez. Dr. Bohachevsky noted the October 28 injury as well as the claimant's "long-standing history of low back pain." Dr. Bohachevsky diagnosed degenerative disc disease, sacroiliac (SI) joint dysfunction and lumbar radiculopathy.
On April 16, 2004, the respondents filed a GAL admitting for "medical treatment of the left hip and thigh only, resulting directly from the 10/28/03 accident," and denying liability for "all other conditions and benefits."
On May 3, 2004, Dr. Bohachevsky stated there were "several potential causes for [the claimant's] current low back pain" including disc degeneration and SI joint dysfunction. Dr. Bohachevsky suggested SI joint injections for diagnostic and therapeutic purposes, and epidural injections if the SI joint injections were not successful.
Also on May 3 Dr. Lopez noted the pending SI joint injections and the possibility of epidural or facet injections in an effort "to try to localize the pain generators." The office notes of Dr. Lopez dated May 21, 2004, contain a handwritten notation that the insurer "denied any back diagnosis" and was limiting its liability to the hip. On May 24 Dr. Lopez opined the claimant's "sciatic symptoms" were not a pre-existing condition as the insurer was alleging, and he continued to prescribe several medications for the treatment of the claimant's symptoms.
Following the April 16 GAL the respondents began to deny medical treatment to the claimant, and in June the claimant applied for a hearing on the issue of medical benefits. Later, he added the issue of penalties under § 8-43-304(1) based on the respondents' failure to provide medical care (medications) prescribed by Dr. Lopez and the epidural and facet joint injections recommended by Dr. Bohachevsky.
However, the ALJ denied the request for penalties. The ALJ held that "the insurer could only be penalized for not providing medical benefits consistent with admitted liability if the disputed medical treatment was related to the admitted conditions" involving the left hip and thigh. However, the ALJ found the treatments recommended by Dr. Bohachevsky were for a "back injury," a specifically denied condition. Similarly, the ALJ found that on March 11, 2004, Dr. Lopez recorded that he was following the claimant for a "low back injury." (Finding of Fact 7). In denying penalties ALJ distinguished Pena v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 03CA0387, November 18, 2004, modified May 26, 2005), on the grounds that in Pena the issue was the appropriateness of the treatment (cab vouchers) not the "nature and extent of the claimant's injuries."
On review, the claimant contends that the ALJ erred in failing to award penalties under § 8-43-304(1) based on the respondents' alleged failure to pay medical benefits in accordance with the April 16 FAL. Citing Pena the claimant argues that "when an insurer believes medical treatment is not related to the admitted injury the insurer cannot prevent the claimant from obtaining the treatment, but may contest payment of the bill by contesting it within thirty days of receipt." (Claimant's Brief at Pp. 7-8). Here, the claimant asserts the evidence establishes that the respondents stopped payment of medical treatment knowing that it was "related" to treatment of the admitted industrial injury and must be penalized for doing so. We disagree.
Generally, imposition of penalties under § 8-43-304(1) requires a two step analysis. First it must be determined whether a party has violated the Act in some manner, or failed to carry out a lawfully enjoined action, or violated an order. Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995) If a violation is found, it must be determined whether the violator acted reasonably. Ordinarily, the existence of a violation and the reasonableness of the violator's conduct are issues of fact for determination by the ALJ. Pioneers Hospital v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 04CA0839, April 7, 2005); Human Resource Co. v. Industrial Claim Appeals Office, 984 P.2d 1194 (Colo.App. 1999). Thus, we must uphold the ALJ's determination of these issues if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004.
In Pena v. Industrial Claim Appeals Office, supra, the insurer filed a GAL for medical benefits for a 1999 ankle injury. Pursuant to that admission, and because the claimant could not drive, the insurer provided taxi vouchers for the claimant to attend medical appointments. In 2001 the authorized treating physician (ATP) noted the claimant needed additional taxi vouchers, and the adjuster requested documentation of the continuing need for vouchers. The adjuster then received documentation showing the claimant was in a wheelchair, had recently had surgery, and was unable to drive. Nevertheless, the insurer failed to provide additional vouchers. Under these circumstances ALJ assessed general penalties under § 8-43-304(1), finding that the vouchers constituted "reasonable and necessary medical benefits" and the insurer willfully failed to provide them.
The Pena court held that the insurer's conduct was not subject to a specific penalty under § 8-43-401(2)(a), C.R.S. 2004, for willfully delaying or stopping medical benefits. The court reasoned the statute authorizes penalties "when a bill has been submitted to an insurer" and that insurer "willfully delays payment for more than thirty days or willfully stops payments." Instead, the court concluded the conduct was subject to general penalties under § 8-43-304(1) because the respondents filed the GAL, did not contest the treatment as unnecessary under Rule of Procedure XVI, 7 Code Colo. Reg. 1101-3, and the ALJ determined the insurer's conduct was "unreasonable" as a matter of fact.
We infer from the Pena decision that the filing of a GAL for medical benefits creates a duty for the insurer to act "reasonably" with respect to the admission. Thus, the insurer must comply with the rules governing requests for prior authorization and the payment of medical bills submitted to it by the claimant or a provider. However in this case, as in Pena, the claimant does not assert that the insurer violated any specific provision of Rule XVI, but instead violated a general duty to provide requested treatment prescribed by the ATP.
As the ALJ recognized, the issue in Pena did not concern the question of whether the need for the taxi vouchers was caused or "related to" the admitted injury, but instead centered on whether the vouchers were reasonable and necessary to "treat" the admitted injury. This is significant because our courts have held that regardless of the filing of a GAL for medical benefits or an order containing a general award of medical benefits, insurers retain the right to dispute whether the need for medical treatment was caused by the compensable injury. See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003) (concerning Grover medical benefits) Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997) (concerning GAL for medical benefits); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). This principle recognizes that even though an admission is filed the claimant bears the burden of proof to establish the right to specific medical benefits, and the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury. Cf. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990) (filing of GAL does not vitiate respondents right to litigate disputed issues on a prospective basis).
In Snyder v. Industrial Claim Appeals Office, supra, the court held that "in a dispute over medical benefits after the filing of a general admission of liability, an employer 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." 942 P.2d at 1339. We do not interpret Pena as overruling Snyder. The original Pena decision, issued November 18, 2004, contains the statement cited in the claimant's brief that when "an insurer believes medical treatment is not related to the admitted injury the insurer may not prevent the claimant from obtaining treatment," but "may contest the bill by, among other things, providing a reason within thirty days of receiving it." (Emphasis added) (Slip Op. at 12) However, the modified version of the Pena decision, issued on May 26, 2005, does not contain this language; instead, the opinion cites § 8-43-503(3), C.R.S. 2004, as authority for the proposition that the insurer "may not dictate the type or duration of treatment." (Emphasis added).
Here, we understand the ALJ to have found that when the respondents filed the GAL on April 16, 2004, they were only willing to admit liability for medical benefits for a hip and knee injury, but were denying liability for any pre-existing or subsequently developing diagnoses (radiculopathy and SI joint dysfunction) related to the claimant's back. The ALJ found the medical records contain substantial evidence justifying this distinction, including the existence of a prior back injury which resulted in a diagnosis of degenerative disc disease, long-standing back pain and whole person impairment. Further, the claimant's initial reports of injury and the ER records are limited to complaints involving the left hip and knee, and the diagnoses of strain and bursitis.
Thus, the ALJ has correctly ruled that the respondents did not commit any violation of the Act, or failed to perform an lawfully enjoined duty. Instead, the respondents exercised their right to file an admission for conditions which they concede were caused by the injury, while reserving the right to litigate the cause of the need for specific treatments, particularly those possibly originating in the claimant's back.
We disagree with the claimant's assertion that the ALJ's finding that Dr. Bohachevsky was treating a "back injury" rather than a "hip" injury is not supported by the evidence. (Conclusion of Law 6). Dr. Bohachevsky's May 3, 2004, report diagnoses discusses several "potential" causes for the claimant's "current low back pain" and "leg pain." Further the report prescribes SI joint injections, and possibly epidural and facet injections if the SI joint injections were not successful. From this the ALJ could find that Dr. Bohachevsky was treating a condition of the claimant's back rather than the admitted "hip injury." Further, the fact that Dr. Bohachevsky indicated that the injections might be "diagnostic" concerning the cause of the claimant's symptoms did not mean that the need for such diagnostics was necessitated by the admitted injury. Rather, the ALJ could plausibly infer from the evidence that Dr. Bohachevsky was attempting to determine whether the claimant's pain was caused by the SI joints or some other defect in the back, neither of which was admitted by the respondents to be related to the hip injury.
For the same reasons we reject the claimant's assertion that the ALJ failed to address the claim for penalties based on the respondents refusal to pay for prescriptions issued by Dr. Lopez. As the ALJ found, Dr. Lopez stated on May 3, 2004, that he was treating the claimant for follow up of "lumbar spondylosis, left radicular symptoms and back pain." (Finding of Fact 7). The ALJ implicitly inferred that the respondents did not consider these treatments, directed to the claimant's back, to be related to the limited hip injury for which they admitted liability on April 16. Therefore, the ALJ implicitly determined the respondents did not violate the Act by refusing to pay for prescriptions to treat a condition for which they had not admitted liability.
IT IS THEREFORE ORDERED that the ALJ's order dated January 20, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Curt Kriksciun
Jack W. Hardesty, Durango, CO, FCI Constructors, Inc., Grand Junction, CO, Transcontinental Insurance Co., c/o Dave Reed, CNA Insurance, Denver, CO, Elliot L. Bloodsworth, Esq., Durango, CO, (For Claimant).
Scott M. Busser, Esq., Denver, CO, (For Respondents).