Colorado Compensation Insurance Authority v. Nofio

Justice LOHR

dissenting:

This case involves an October 1, 1991, order by the Director of the Division of Workers’ Compensation (Director), entered pursuant to the Medical Utilization Review (M-UR) statute, § 8-43-501, 3B C.R.S. (1990 Supp.),10 requiring the claimant, Dominick A. Nofio (Nofio), to change his medical provider and retroactively denying payment for treatment after January 1, 1990. Upon judicial review, however, the Colorado Court of Appeals held that Nofio is entitled to a de novo hearing under section 8-43-207, 3B C.R.S. (1994 Supp.), and remanded the case in order for that hearing to take place. The majority reverses the court of appeals and holds that Nofio failed to prove a termination of benefits, rather than merely a change in benefits, and thus is not entitled to a de novo hearing. Maj. op. at 11. I respectfully disagree. I would hold that unless the Director’s order clearly authorizes only a change of providers within the same discipline as the current provider, ie., chiropractic care, the claimant is entitled to a de novo hearing. I would, therefore, affirm the holding of the court of appeals that the case be remanded with directions to conduct such a hearing. Nofio v. Colorado Compensation Ins. Auth., No. 92CA1441 (Colo.App. July 15, 1993) (not selected for official publication).

I.

On October 5, 1982, Nofio injured his neck and upper back in a work related accident. In an order dated December 2, 1986, the Division of Labor found that after receiving extensive medical treatment, including palliative care, Nofio was permanently and totally disabled due to chronic pain. The Colorado Compensation Insurance Authority (CCIA) subsequently refused to pay for Nofio’s massage therapy treatments, leaving a chiropractor, Dr. Walker, D.C., as Nofio’s sole care provider. In September 1987, Dr. Walker left the area and a second chiropractor, Dr. Scott Anderson, D.C., continued to treat No-fio.

On March 4, 1991, the CCIA commenced this Medical Utilization Review. The Director appointed a review committee (Committee) that consisted of two medical doctors — Howard Shoemaker, M.D., and John P. Smith, M.D. — and one chiropractor — Jeffrey B. Prystrupa, D.C. Each Committee member submitted a recommendation based on Nofio’s medical records contained in his workers’ compensation claim file, a review of medical records made by a non-treating chiropractor, and a report submitted by Nofio’s sole care provider — Dr. Anderson. Both medical doctors on the Committee recommended a change in health care provider and concluded that chiropractic care was no longer beneficial. Both medical doctors also recommended a retroactive denial of payments from 1986. Dr. Prystrupa, the chiropractor on the Committee, recommended that some chiropractic treatment continue, but also recommended that surgical intervention and psychological treatment be explored. Dr. Prystrupa recommended a retroactive denial of payments for “brief exams” from 1986, but *721suggested that a “settlement” should be considered regarding monthly payments for treatment.

In an order dated October 1, 1991, the Director adopted the majority’s recommendation and ordered that a “change of provider be made” and retroactively denied payment for medical services rendered after January 1, 1990. Nofio applied for a review of this order by an Administrative Law Judge (ALJ). In an order dated February 19, 1992, the ALJ affirmed the Director's order that a change of provider be made on the basis that it was supported by substantial evidence in the record. The ALJ, however, modified the retroactive denial of payments to begin June 20, 1986, rather than January I, 1990. On March 6, 1992, Nofio filed a petition with the Industrial Claim Appeals Panel (ICAP) to review the ALJ’s order. In its final order, dated August 17, 1992, the ICAP found that Nofio lacked standing to contest the retroactive denial of benefits paid to the providers and thus affirmed the denial of benefits. The ICAP correctly acknowledged that it lacked jurisdiction to address Nofio’s due process challenge. Lastly, the ICAP concluded that the ALJ’s order was supported by substantial evidence and affirmed the ALJ’s order.

Nofio appealed to the Colorado Court of Appeals. The court of appeals heid in an unpublished opinion that “[bjecause the Director’s order in this case ordered a termination of the claimant’s care by a previously authorized provider, claimant is entitled to have the matter adjudicated de novo in an adversarial hearing before an ALJ.” Nofio, slip op. at 2. The court of appeals rejected Nofio’s contention that the M-U-R statute should be invalidated because it does not require the Committee to base its recommendation on the standard of care applicable in the particular field of practice in which the health care provider is engaged. Id. The court of appeals further rejected the remaining issues raised by Nofio. Id. at 3-4.

We granted certiorari to consider whether a workers’ compensation claimant is entitled to a de novo hearing pursuant to section 8-43-207 after a medical utilization review under section 8-43-501 results in an order changing the claimant’s health care provider and retroactively denying payments for medical services rendered.11 Based on the statutory language and Colorado case law, I would hold that any order by the Director that mandates a change in the type of health care provider treating the claimant — without expressly limiting the new provider to the same discipline as the current provider, e.g., chiropractor — terminates that discipline’s method of treatment and is therefore subject to a de novo hearing under section 8-43-207.

II.

I agree with the majority that a workers’ compensation claimant is entitled to such medical benefits as are reasonably necessary to relieve the claimant from the effects of a work-related injury or illness. E.g., Grover v. Industrial Comm’n, 759 P.2d 705, 709 (Colo.1988). I also agree with the majority that the General Assembly passed the M-UR statute in 1988 in order to review and remedy medical services that may not be reasonably necessary or reasonably appropriate in light of accepted professional standards. Ch. 49, sec. 3, § 8-49-102, 1988 Colo. Sess.Laws 374, 375. I disagree, however, with the majority’s conclusion that the Director’s order requiring that a “change of provider be made” did not terminate Nofio’s chiropractic treatment. When such an order authorizes the termination of the type of care a claimant is currently receiving — e.g., chiropractic care^ — the claimant is entitled to a de novo hearing before an ALJ pursuant to section 8-43-207. Hargett v. Director, Division of Labor, 854 P.2d 1316, 1320 (Colo.App.1992).

A.

Section 8-43-207 is a general provision that authorizes evidentiary hearings for workers’ compensation disputes. This statute, in part, provides:

*722(1) Hearings shall be held to determine any controversy concerning any issue arising under articles 40 to 47 of this title. In connection with hearings, the director and administrative law judges are empowered to:
(a) In the name of the division, issue subpoenas for witnesses and documentary evidence which shall be served in the same manner as subpoenas in the district court;
(b) Administer oaths;
(c) Make evidentiary rulings;
(d) Limit or exclude cumulative or repetitive proof or examination;
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(h) Control the course of the hearing and the conduct of persons in the hearing room;

§ 8-43-207, 3B C.R.S. (1994 Supp.). It is clear from the language of the statute and the enumerated powers of the ALJ that section 8-43-207 was intended to provide an adversarial hearing at which testimony is heard and evidence is presented. Furthermore, the statute expressly applies to “any controversy concerning any issue arising under articles 40 to 47 of this title.” Id. (emphasis added).

B.

The M-U-R statute establishes a “mechanism to review and remedy services rendered pursuant to this article which may not be reasonably necessary or reasonably appropriate according to accepted professional standards.” § 8-43-501(1), 3B C.R.S. (1990 Supp.). “Any insurer, self-insured employer, or claimant may request review under the provisions of’ the M-U-R statute. § 8^13-501(2)(a). At the initial review stage, a claimant may only submit medical reports. § 8-43-501(2)(a).

The Director appoints three members to the Medical Utilization Review Committee to review cases brought under this statute. § 8-43-501(3)(a),(b). The scope of this Committee’s power is prescribed in section 8-43-501(3)(c), which states in part:

[This committee] shall review the medical necessity and appropriateness of care provided pursuant to this article by conducting an extensive review of the medical records ... [and] shall issue a report to the director on the findings of each case reviewed. For each case, a committee may recommend by a majority vote of such committee that no change be ordered with respect to a case or that a change of provider be ordered. A committee, by a unanimous vote, may recommend that the director order that payment for fees charged for services in the case be retroactively denied. The director shall accept the recommendation of a committee and base the order entered pursuant to this section thereon. If the director’s order specifies the payment for fees charged for services in a case be retroactively denied, the provider whose fees are so denied payment may not contract with, bill, or charge, the claimant for such fees, (emphasis added).

The M-U-R statute only empowers the Committee to order a change in providers and retroactively to deny payment to providers. The M-U-R statute does not authorize the Committee to terminate treatment. Not only is such a conclusion evident from the language of the statute, the Colorado Court of Appeals reached the same conclusion in interpreting an earlier version of the M-U-R statute.12 See Hargett, 854 P.2d at 1320.

C.

A termination of benefits occurs if the Director orders: (1) a cessation of the claimant’s treatment entirely; (2) a cessation of a certain type of treatment, e.g. chiropractic care; or (3) a change in health care providers without expressly limiting such a change to a new provider within the medical discipline of the existing provider. Because the Director is not statutorily authorized to terminate the claimant’s treatment entirely under the M*723U-R statute, the second and third situations noted above are the most likely to occur.

In Hargett, the Director wanted the claimant to be treated by an orthopedic physician, whereas the claimant wished to continue chiropractic treatment. Hargett, 854 P.2d at 1319. The court in Hargett thus addressed the second situation noted above and held that:

[I]f the Director’s order has terminated a particular type of benefits, e.g., chiropractic care, or if a party seeks to terminate medical benefits based on.the review proceedings, the party aggrieved must seek appropriate relief by requesting an eviden-tiary hearing under [section 8-43-207]. In such cases the ALJ will have full authority to review the matter de novo and to enter an appropriate order based on the evidence submitted.

Id. at 1320.

I would adopt the Hargett analysis and apply it to the facts of the present ease to resolve the third situation noted above. In the present case, the Director ordered that “[a] change of provider be made.” The MU-R statute does not define the word “provider”; nor did the Director’s order. Furthermore, the reports submitted by the three Committee members reflect the uncertainty of what type of treatment Nofio will receive in the future. Both medical doctors recommended that chiropractic care be terminated.Even the chiropractor recommended that non-chiropractic care be considered as part of Nofio’s future treatment. I would therefore hold that in cases like the present case, where the Director’s order is not clear as to what type of treatment the new health care provider will render, the claimant may appeal to an ALJ and receive a de novo hearing.13

D.

Subsection (5) of the M-U-R statute establishes the appeal process available to parties after' the Director’s decision is made. This subsection provides, in part, that:

(5)(a) ... [A] claimant, insurer, or self insured employer may appeal an order specifying that no change occur with respect to a case, that a change of provider be made, or that the payment of fees in the case be retroactively denied either to the director or to an administrative law judge by requesting a hearing pursuant to this article.[14]
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(b)(III) If a claimant, insurer, or self-insured employer appeals an order issued pursuant to subsection (S) of this section by requesting a hearing before an administrative la%v judge according to the provisions of this article, the report of the utilization review committee upon which the director based the order pursuant to subsection (3) of this section shall be admissible in evidence, and if the report of the utilization review committee upon which the director based the order in the case under this section is supported by substantial evidence, the director’s order shall not be altered by the administrative law judge.

§ 8-43-501(5), 3B C.R.S. (1990 Supp.) (emphasis added). The M-U-R statute thus allows a claimant to appeal the Director’s decision to either an ALJ for a hearing or back to the Director for reconsideration. The appeal process presented by the M-U-R statute, however, applies only to orders that change the claimant’s treatment. Hargett, 854 P.2d at 1320. I would hold that under the Hargett analysis, the Director’s order in the present case includes the possibility that Nofio’s chiropractic care will be terminated and replaced by some other type of treatment; therefore, Nofio is entitled to a de novo hearing under section 8-43-207.

The anomaly of the M-U-R statute is that it allows for the admission of evidence as well *724as a review based on the substantial evidence standard. In Hargett, the court of appeals interpreted an earlier version of the M-U-R statute and concluded that:

Because [section 8-43-501] does not authorize a termination of medical benefits, we conclude that review to the ALJ under [section 8^43-501(5) ] is limited to a review of the record to determine whether the Director’s order is supported by substantial evidence.

Hargett, 854 P.2d at 1320. Under the Har-gett analysis and interpretation of the M-UR statute, a claimant has several options available to appeal an order by the Director. First, the claimant could appeal the Director’s order to the Director for reconsideration under subsection 8^43-501(5)(b)(II).15 Second, the claimant could appeal an order that changes the claimant’s benefits to an ALJ to review the record in order to determine whether the order was supported by substantial evidence under subsection 8-43-501 (5)(b)(III). Third, the claimant could appeal an order that terminates the type of benefits the claimant currently receives to an ALJ for a de novo hearing under section 8-43-207. See Hargett, 854 P.2d at 1319-20. I agree with the Hargett court’s interpretation of the M-U-R statute and would hold that only an order by the Director that clearly limits the change in health care provider to another provider in the same discipline as the current provider is subject to the substantial evidence standard of review in section 8-43-501.16

E.

The majority rejects the Hargett analysis17 by concluding that a change in health care providers can never constitute a termination of benefits; therefore, the type of health care provider is irrelevant to the majority’s analysis. If the majority were applying the Hargett analysis, it would be required to determine that Nofio’s future treatment would consist solely of chiropractic care. The record simply does not support such an assumption. The Director’s order, and the Committee members’ recommendations, leave open the possibility that Nofio’s future care may not include any chiropractic care. A complete termination of chiropractic care is exactly what the Hargett court found to be outside the scope of the appeal process prescribed by the M-U-R statute. Hargett, 854 P.2d at 1320 (stating that “if the Director’s order has terminated a particular type of benefits, e.g., chiropractic care” it is subject to a de novo hearing). If Nofio’s future health care provider is not a chiropractor, then Hargett dictates that Nofio’s benefits have been “terminated” and that he is entitled to a de novo hearing.

The procedure for selecting a new provider under the M-U-R statute fails to ensure that Nofio’s treatment will continue to consist solely of chiropractic treatment. See § 8-43-501(4), 3B C.R.S. (1990 Supp.). This subsection provides:

If the director orders ... a change of provider be made in a case, the claimant ... shall have seven days from the receipt of the director’s order in which to agree upon a provider. If the claimant ... cannot reach an agreement within the seven day time period, the director shall select three providers who practice in the claimant’s geographical location from lists submitted by professional medical and chiropractic organizations. A new provider shall be chosen from the list established *725pursuant to this subsection (4) by the party who was successful in the request for review. The director shall be notified of the name of the selected health care provider within seven days of the establishment of the list pursuant to this subsection (4). If the new health care provider is not selected within such seven days, the director shall select the provider who shall attend the claimant from such list.

Id. If Ñoño and the Director are unable to agree on a new chiropractor, the Director could establish a list consisting entirely of non-chiropractor health care providers. Such a scenario undoubtedly terminates chiropractic care.

III.

To resolve this issue, I would draw a distinction between an order that changes the claimant’s health care provider and an order that terminates the type of health care provider treating the claimant. I would further hold that an order terminating the type of health care provider treating the claimant falls outside the scope of the M-U-R statute’s appeal procedure and is thus subject to a de novo hearing under sections 8-43-207. A “termination” occurs when the Director’s order does not clearly limit the change in providers to other providers within the same discipline as the current health care provider. Because the Director’s order in the present case allows for non-ehiropractie care and the record does not support the conclusion that Nofio’s future treatment will consist solely of chiropractic care, the order terminated No-fio’s benefits. The facts of this case, the statutory language, and the Hargett decision contradict the majority’s conclusion that an order requiring a change of providers can never constitute a termination of benefits. For the foregoing reasons, I respectfully dissent from the majority opinion and would affirm the judgment of the court of appeals.

KIRSHBAUM and YOLLACK, JJ., join in this dissent.

. § 8-43-501 has been subsequently repealed and reenacted and otherwise amended. See § 8-43-501, 3B C.R.S. (1994 Supp.).

. We also granted certiorari to consider whether § 8-43-501 violates the Due Process Clauses of the United States and Colorado Constitutions. Because I would hold that Nofio has a statutory right to a de novo hearing in this case, Nofio's due process challenge need not be addressed.

. § 8-43-501 was previously § 8-49-102, while § 8-43-207 was previously § 8-53-103. Although Hargett interpreted the pre-1991 version of the M-U-R statute, its interpretation and analysis are nevertheless applicable to subsequent MU-R statutes. See McWhorter v. CNA Ins. Co., 868 P.2d 1128, 1130 (Colo.App.1993).

. Had the Director ordered "a change of provider be made within the same discipline,” or "a change of chiropractors be made," I would hold that the Director changed, rather than terminated, the claimant's treatment.

. I agree with the ICAP's final order that Nofio does not have standing to challenge the Committee’s order retroactively denying payment to health care providers because the statute expressly prohibits a provider from subsequently seeking reimbursement from the claimant for services rendered. § 8 — 4—501 (3)(c), 3B C.R.S. (1990 Supp.).

. In the event of an appeal to the Director, the Director appoints a new Committee to consider the case and make a recommendation either agreeing with the first Committee’s recommendation or making a different recommendation. § 8-43-501 (5)(b)(II), 3B C.R.S. (1990 Supp.).

. As noted in the Hargett decision, a request by a claimant for an evidentiary hearing under § 8-43-501 should be treated the same as if it were properly brought under § 8-4-207. Hargett, 854 P.2d at 1320.

.The majority "disapprove[s] of Hargett insofar as that case would authorize a de novo hearing for a claimant when a type of treatment is terminated." Maj. op. at 719 n. 8 (emphasis in original).

The majority also holds that a claimant has no "legitimate claim of entitlement” to receive a particular type of treatment and thus the claimant can assert no due process protection. Maj. op. at 718-719 and 719 n. 8. Because I would hold that Nofio’s right to a de novo hearing derives from a statute, § 8-43-207, I do not address the due process issue.