Opinion
W.C. No. 4-323-662
November 1, 2001
FINAL ORDER
The claimant and respondent separately petition for review of an order of Administrative Law Judge Stuber (ALJ) dated September 20, 2000, which awarded certain medical benefits and denied other medical benefits. We affirm.
In a final order dated September 22, 1997, it was found the claimant suffered a compensable injury from the aggravation of a pre-existing condition. No appeal was taken from that order. On June 15, 1998, Dr. Leppard placed the claimant at maximum medical improvement.
On September 11, 1998, the respondent filed a Motion to Terminate Benefits for Fraud on grounds the claimant falsified the injury claim, intentionally refused to disclose her medical history, falsely obtained narcotic prescriptions and abused emergency room treatment. Accordingly, the respondent requested an order denying all future workers' compensation benefits and requiring the claimant to reimburse the respondent for previously paid benefits. The respondent filed an application for hearing dated September 9, 1998.
In the interim the claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician assigned a 12 percent medical impairment rating.
The respondent filed a Final Admission of Liability dated January 26, 1999, which admitted liability for permanent partial disability benefits consistent with the DIME physician's rating and future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). However, the admission explicitly disputed that further emergency services and prescription medication called "clonazepam" were reasonable and necessary to relieve the effects of the industrial injury. The claimant timely objected to the final admission concerning medical benefits, disfigurement benefits, temporary disability benefits, permanent disability benefits, interest and penalties.
The respondent filed an amended Final Admission of Liability on March 29, 1999, which was fundamentally similar to the January 26 admission. It is undisputed the claimant also timely objected to the March 29 admission.
Because neither final admission explicitly referenced the Motion to Terminate Benefits for Fraud, the claimant filed a motion to dismiss the Motion to Terminate. In an interlocutory order, the ALJ denied the claimant's motion. The Motion to Terminate was eventually scheduled for hearing before the ALJ together with the claimant's request for the payment of specific Grover-type medical benefits.
In the order on review, the ALJ rejected the claimant's contention that the Motion to Terminate was moot. Further, the ALJ determined the respondent sustained its burden to prove grounds which justified retroactive relief from the payment of medical benefits. In support, the ALJ found the claimant fraudulently obtained prescription narcotics by misrepresenting her symptoms, falsifying the need for replacement medications and abusing emergency room services. The ALJ also found the claimant misused, overused and voluntarily allowed others to use her prescription medications commencing June 1997. Therefore, the ALJ relieved the respondent of liability for any prescription narcotics commencing June 1997 and ordered the claimant to reimburse the respondent for any narcotic prescriptions purchased after June 1997. The ALJ also relieved the respondent of liability for the cost of replacement prescriptions and ordered the claimant to repay the respondent for the cost of any previously replaced medications. Based upon his determination that emergency room treatment was not reasonable and necessary ALJ further refused to hold the respondent liable for emergency room treatment commencing June 19, 1997. The ALJ also refused to order the respondent to pay the cost of "clonazepam" commencing December 31, 1996.
However, the ALJ determined that Dr. Burns and Dr. Moffett and their referrals were authorized treating physicians commencing December 9, 1998. Therefore, the ALJ ordered the respondent pay all reasonable and necessary medical expenses incurred by the claimant with these physicians after December 9, 1998.
I.
On review, the claimant first contends the ALJ erred in denying her motion to dismiss the Motion to Terminate Benefits for Fraud. The claimant contends that because the respondent's final admissions did not reserve the Motion to Terminate and she did not object to that part of the final admissions, the Motion to Terminate was abandoned and the respondent is precluded from litigating the merits of the Motion to Terminate. Accordingly, the claimant contends the ALJ lacked jurisdiction to order the repayment of medical benefits. We disagree.
Section 8-43-203(2)(b)(II), C.R.S. 2001 provides that the claimant's failure timely to object to a final admission automatically closes the claim as to all admitted issues. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). However, where the claimant objects, to a final admission, the admission no longer has the effect of closing the "admitted issues" and the insurer may obtain prospective relief from the improvidently filed final admission. Section 8-43-304(2)(d), C.R.S. 2001 (once case is closed pursuant to subsection (2), issues closed must be reopened) ; HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990); Fausnacht v. Inflated Dough Inc., W.C. No. 4-160-133 (July 20, 1999), aff'd., Fausnacht v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1499, May 4, 2000) (not selected for publication). This conclusion is consistent with Rule of Procedure IV (N) (7), 7 Code Colo. Reg. 1101-3 at 7, which provides that, "The insurance carrier may modify an existing admission regarding medical impairment, whenever the medical impairment rating is changed pursuant to a binding IME, a division IME, or an order." The rule goes on to provide that modifications to admissions of liability "shall not affect an earlier award or admission as to monies previously paid." Thus, we reject the claimant's contention that the respondent's failure to expressly reserve the Motion to Terminate Benefits for Fraud in its final admissions of liability automatically closed the claim concerning the Motion. To the contrary, the respondent was not bound by any admitted liability and was free to request prospective relief from the final admission. Therefore, the ALJ did not exceed his jurisdiction by hearing the respondent's Motion to Terminate.
Furthermore, the court has created exceptions which allow retroactive relief from improvidently filed admissions where the claimant has engaged in certain types of misconduct. See Arenas v. Industrial Claim Appeals Office, 8 P.3d 558, 562 (Colo.App. 2000); Vargo v. Industrial Commission, 626 P.2d 1164 (Colo.App. 1981). Specifically, the respondent may obtain retroactive relief where the claimant supplies "materially false information upon which his employer and its insurer relied in filing an admission of liability." Under these circumstances, an admission is void ab initio and the respondent may obtain retroactive relief. Id. at 1166.
In Vargo, the claimant made fraudulent representations concerning his condition prior to the industrial injury, and these representations induced the respondents to file a general admission of liability for temporary disability and medical benefits. When the respondents discovered the fraudulent representations, they filed a "denial of liability," and ceased the payment of medical benefits, but continued temporary disability benefits until the claimant returned to work. The Vargo court upheld an order of the Industrial Commission which declared the admission of liability "void from the date of filing." In reaching this result, the court recognized that the statute currently codified at § 8-43-203(2)(b)(II), provides that, "Hearings may be set to determine any matter, but, if any liability is admitted, payment shall continue according to admitted liability." The court also observed that neither this statute, nor any other provision of the Act, authorizes "retroactive withdrawals of an admission of liability." Nevertheless, the court stated that the "beneficial intent" of the Act is predicated on claimants providing accurate information. Although the Vargo decision does not expressly state that a claimant may be ordered to repay the insurer for benefits obtained prior to withdrawal of the fraudulently induced admission, the court's reference to "retroactive withdrawal" of the admission indicates that repayment is the intended remedy.
The cases cited by the claimant for the proposition that the ALJ has not authority to order the repayment of benefits are legally distinguishable. Indeed, the court in Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995), went to substantial effort to distinguish Vargo on the grounds that Lewis, unlike Vargo, involved a closed claim. Further, Cibola Construction v. Industrial Claim Appeals Office, 971 P.2d 666 (Colo.App. 1998), cert. denied March 5, 2001, and Safeway, Inc. v. Industrial Claim Appeals Office, 968 P.2d 162 (Colo.App. 1998) are distinguishable in that the facts in those cases involved uncontested final admissions.
We recognize that in a strict sense this claimant's factual misrepresentations did not procure the respondent's filing of an admission on the issue of compensability as in Vargo. Neither did the claimant fraudulently induce the respondent to file a general admission of liability for medical benefits. However, the claimant's misrepresentations induced the respondent's payment of medical benefits consistent with its previously filed admission. Under these circumstances, we conclude that Vargo authorized the respondent "retroactively to withdraw" its admission of liability, and allowed the ALJ to order the repayment of all fraudulently obtained benefits.
II.
The claimant also contends the ALJ erroneously entered a "global denial" of all narcotic medications, and emergency treatment. We reject the claimant's construction of the ALJ's order.
The 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 cure and relieve the effects of an industrial injury or prevent further deterioration of the claimant's condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995) ; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). Once the claimant establishes the probable need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the respondent's right to contest the necessity and reasonableness of all specific treatment modalities. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Stollmeyer v. Industrial Claim Appeals Office, supra.
Here, it is undisputed the respondent admitted liability for Grover-type medical benefits. Consequently, the respondent inherently admitted that there is substantial evidence some future medical treatment will be reasonably necessary to relieve the effects of the industrial injury. However, the respondent contested liability for specific treatment on grounds it was not reasonable or necessary and was induced by fraud.
The ALJ determined that the disputed narcotic prescriptions, replacement prescriptions, and emergency room treatment were fraudulently induced and not reasonably necessary to relieve the industrial injury. Therefore, the ALJ denied all such treatment commencing June 1997. However, the ALJ also denied the respondent's request for an "order denying all future benefits." (Order #1). To the contrary, the ALJ ordered the respondent to pay all "reasonable and necessary medical expenses" from the authorized treating physicians." (Order #4). The ALJ also expressly reserved all matters not expressly determined by the order for future determination. (Order #7). Under these circumstances, we do not read the ALJ's order as mandating a blanket denial of any future narcotic prescriptions or emergency treatment.
III.
For its part, the respondent contends there is insufficient evidence to support the ALJ's findings that Dr. Burns, Dr. Moffett and their referrals are authorized treating physicians. Consequently, the respondent contends the ALJ erroneously held them liable for the medical expenses incurred by the claimant with these providers. We disagree.
Respondents are only liable for emergency and authorized medical treatment. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). It is well established that treatment rendered as a result of a referral "in the normal progression of authorized treatment" is also authorized. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). In City of Durango v. Dunagan, supra,, the court held "the mere fact that the claimant requested that the authorized treating physician make a referral does not mean that said referral is outside the scope of the normal progression of treatment." To the contrary, the legal test is whether the treating physician exercised independent medical judgment in making the referral. City of Durango v. Dunagan, supra. Furthermore, an authorized treating physician may make a general referral for treatment or may limit the scope of a referral. Gamboa v. ARA Group, Inc., W.C. No. 4-106-924 (November 20, 1996). The questions of whether a valid referral occurred and the scope of the referral are factual in nature. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Consequently, we are bound by the ALJ's determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-4-301(8), C.R.S. 2001; Suetrack USA v. Industrial Claim Appeals Office, supra.
Here, it is undisputed that Dr. Leppard is an authorized treating physician. Following the claimant's overdose of Klonopin in November 1998, Dr. Leppard began weaning the claimant from prescription narcotics. During that time the claimant moved to Denver. The ALJ found Dr. Leppard recommended the claimant find a local psychiatrist for further treatment but made no specific referral. (Finding of Fact 101). On her own the claimant began treating with Dr. Burns, who later referred the claimant to Dr. Entin and Dr. Bennett. On December 9, 1998, the claimant returned to Dr. Leppard and reported her treatment with Dr. Burns. The ALJ found Dr. Leppard then referred the claimant to Dr. Burns.
Contrary to the respondent's contention, the record contains substantial evidence to support the ALJ's finding that Dr. Leppard referred the claimant to Dr. Burns. Although Dr. Leppard initially testified that she did not refer the claimant to Dr. Burns, (Leppard depo. August 10, 1999, p. 5), she subsequently wrote a letter dated December 9, 1998, in which she stated that her testimony was mistaken and she recalled making a referral to Dr. Burns. (Medical Exhibit 2353). The record also contains a script dated December 9, 1998 from Dr. Leppard which states, "Refer to Dr. Jennifer Burns." ( See Medical Exhibit 1874).
Nevertheless, the respondent contends there was no "valid referral" because Dr. Leppard did not exercise her "independent judgment" concerning whether the claimant should treat with Dr. Burns and only referred the claimant to Dr. Burns to ensure that Dr. Burns medical bills would be paid. Thus, they argue the referral was for financial, not medical reasons. Again we disagree.
Dr. Leppard admitted it made more sense for the claimant to treat with a physician in Denver but did not refer the claimant to any specific physician in November 1998. (Leppard depo. August 10, 1999, p. 6). However, Dr. Leppard testified that on December 9, 1998, she gave her approval for the claimant to treat with Dr. Burns and considered Dr. Burns the authorized treating physician. ( See Leppard depo. August 10, 1999, p. 15-17). This testimony together with the evidence that Dr. Leppard recommended a change in physician in November 1998 and could have referred the claimant to any other physician supports the ALJ implicit determination that Dr. Leppard independently determined that Dr. Burns was a suitable replacement physician. The evidence cited by the respondent merely creates a conflict which was the ALJ's sole prerogative to resolve. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Thus, the ALJ did not err in finding Dr. Burns became an authorized treating physician effective December 9, 1998.
The respondent's additional arguments have been considered and are unpersuasive. Furthermore, our conclusions in Suazo v. Regional Transportation District, W.C. No. 4-250-050 (October 15, 1998), do not compel a contrary conclusion. Here, as in Suazo, the evidence was subject to conflicting inferences. The ALJ in Suazo resolved the conflict against the claimant by finding that an after the fact referral was made to accommodate a request from the claimant's attorney to ensure that the medical bills of the physician selected by the claimant were paid, and the referral was not the product of independent medical judgment. Here, as in Suazo, the existence of conflicting evidence does not afford us grounds to disturb the ALJ's order here. Cf. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985) (if two equally plausible inference may be drawn from the evidence, we may not substitute our judgment for that of the ALJ).
Further, the ALJ found that Dr. Moffett became an authorized treating physician following a referral from the claimant's treating psychotherapist, Patricia Winter (Winter). On review the respondent renews its contention that Winter made a "limited" referral to Dr. Moffett which terminated in November 1998. We perceive no reversible error.
In a letter dated September 22, 1999, Winter referred the claimant to Dr. Moffett, for "individual psychotherapy" while she was on maternity leave. The letter also stated, "I would be happy to continue care with her following my return in the middle or end of November." (Medical Exhibit 2387).
Admittedly, the September 22 letter could be construed as a "limited" referral for "individual psychotherapy" only through November 1999. However, Winter's letter was equivocal on whether Winter's expected the claimant to return to her for treatment after November 1999. In fact, Winter testified that upon her return from medical leave the referral to Dr. Moffett "changed" insofar as he continued to prescribe psychotropic medications to the claimant, but Winters provided psychotherapy. (Tr. December 15, 1999, pp. 45, 46). However, she admitted the referral to Dr. Moffett was never "rescinded" or "terminated." Under these circumstances, we cannot say the record compelled the ALJ to find there was a limited referral which terminated Dr. Moffett's authorization November 1999.
Moreover, "authorization" of treatment is separate and distinct from whether the treatment is "reasonable and necessary." Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993). Thus, evidence Dr. Moffett's prescription for Klonopin was not reasonable and necessary did not preclude the ALJ from finding that Dr. Moffett is an authorized treating physician.
IT IS THEREFORE ORDERED that the ALJ's order dated September 20, 2000, 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. 2001. 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 November 1, 2001 to the following parties:
Carolyn Harris Sterling, Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940
John and Diane Lyons Fourton d/b/a Silver Deer, Inc., 11 Elm Ave., Colorado Springs, CO 80906-3173
Kathleen Pennucci, Special Funds, Tower 2, #630, Division of Workers' Compensation — Interagency Mail
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Donna Dell'Olio, Esq., 431 N. Cascade Ave., #1, Colorado Springs, CO 80903 (For Respondents)
Edward Farry, Jr., Esq., 128 S. Tejon St., #100, Colorado Springs, CO 80903 (For Respondents)
BY: A. Pendroy