Opinion
W.C. No. 4-777-652.
May 24, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Cain (ALJ) dated December 30, 2009, that ordered the insurer to pay a penalty of $4,250. We affirm.
The claimant sustained a low back industrial injury on September 19, 2008. Dr. Tentori became an authorized treating physician (ATP). Dr. Tentori referred the claimant to Dr. Ogin in the normal progression of authorized treatment. On December 29, 2008, Dr. Ogin issued a script for an EMG to rule out radiculopathy. Dr. Ogin's script for an EMG did not reach the insurance adjuster. However, on January 8, 2009 a staff member at Dr. Ogin's office telephoned the claimant's adjuster concerning the EMG scheduled on January 9, 2009. The claim adjuster stated that she wanted the EMG done thru One Call (OC). OC is characterized by the claim adjuster as a "gatekeeper" organization that the insurer uses for the purpose of authorizing medical providers to administer diagnostic tests such as EMG's. On January 26, 2009, Dr. McCranie performed the EMG that Dr. Ogin originally intended to perform on January 9, 2009.
The claimant sought penalties under § 8-43-304(1) C.R.S. contending the respondents' refusal to authorize an EMG to be performed by Dr. Ogin was a violation of § 8-43-503(3) C.R.S. That subsection provides that:
Employers, insurers, claimants, or their representatives shall not dictate to any physician the type or duration of treatment or degree of physical impairment. Nothing in this subsection (3) shall be construed to abrogate any managed care or cost containment measures authorized in articles 40 to 47 of this title.
The ALJ found that the delay in the performance of the EMG was attributable to the claim adjuster's refusal to authorize Dr. Ogin to perform the EMG unless he went through OC. The ALJ determined that the claimant had proved it was more probably true than not that the insurer violated § 8-43-503(3) C.R.S. by dictating the duration of the claimant's treatment. This was based on the claim adjuster's refusal to grant authorization to Dr. Ogin to perform an EMG at a time she knew that Dr. Ogin was an ATP. The ALJ inferred that the claim adjuster knew that refusal of authorization for the EMG and imposition of the "gatekeeper" requirement would delay performance of the EMG. The ALJ imposed a $4,250 penalty against the insurer. The respondents appeal, contending that the award of penalties for an alleged dictation of care is not supported but substantial evidence in the record and conflicts with the law on requests for pre-authorization and imposition of penalties.
The claimant had the burden of proof to establish the right to the penalty. Section 8-43-201 C.R.S; Long v. DBF, LLC, W. C. No. 4-264-006 (June 5, 1997). Whether the claimant sustained his burden of proof is a question of fact for resolution by the ALJ. We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S; Coven v. Industrial Commission, 694 P.2d 366 (Colo. App. 1984); Seawell v. Foto Fast, Inc,. W. C. No. 4-304-561 (December 11, 1997).
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).
Section 8-43-503(3) states that no representative of the employer or insurer shall dictate to any physician the type or duration of treatment to be provided. As noted by the ALJ, the Panel has concluded that § 8-43-503(3) precludes a representative of the insurer from issuing commands to a treating physician concerning the type or duration of treatment to be provided to the claimant. Gianzero v. Wal-Mart, W.C. No. 4-669-749 (July 14, 2009); York v. Larchwood Inns, W.C. No. 4-365-429 (November 7, 2002).
The respondents' arguments notwithstanding, there is substantial evidence in the record to supporting the ALJ's conclusion that the insurer effectively dictated the claimant's medical treatment by unilaterally attempting to modify Dr. Ogin's status as an ATP by dictating that before he performed the EMG he was required go through "vetting" by OC, the insuer's "gatekeeper." The claim adjuster was found by the ALJ to know that by imposing this policy on Dr. Ogin the performance of the EMG would be delayed and consequently so would the claimant's treatment. The ALJ found that nevertheless the claim adjuster required Dr. Ogin to adhere to the "gatekeeper" policy or face the consequence that he would not be paid for performing a test that he believed was reasonable and necessary to diagnose the claimant's condition. In so doing the ALJ concluded that the claim adjuster effectively commanded Dr. Ogin to take an action that Dr. Ogin was not legally required to take in order to secure payment for the EMG. The ALJ found that the claim adjuster prolonged the duration of the claimant's treatment by influencing Dr. Ogin not to perform the EMG on January 9, 2009, as scheduled.
The insurer's conduct as found by the ALJ supports the imposition of penalties. Section 8-43-503(3), C.R.S. 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 insurer 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. 5 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). We note that the insurer has not argued that under W.C. Rule of Procedure 16(9), 7 Code Color Reg. 1101-3 the EMG actually required prior authorization. Therefore, the issue is one of medical necessity. However, the insurer was not challenging the reasonableness and necessity of 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 insurer's legally unjustified demand that the EMG to be conducted through OC effectively delayed the claimant's treatment. As noted by the ALJ, 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).
In our view, the ALJ's order reflects the proper consideration of the relevant legal principles and his findings are supported by substantial evidence in the record. Therefore, we are not persuaded to interfere with his order.
IT IS THEREFORE ORDERED that the ALJ's order dated December 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
JOSE CASILLAS, ST, DENVER, CO, (Claimant).
ACE/ESIS AMERICAN INCURANCE COMPANY, Attn: ANITA FRESQUEZ-MONTOYA, C/O: ESIS PORTLAND WC CLAIMS # C498 C 0955053, TAMPA, FL, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: ERICA A WEBER, ESQ., DENVER, CO, (For Respondents).