Berthold v. Indus. Claim Appeals Office of Colo.

410 P.3d 810

Judy BERTHOLD, Petitioner,

v.INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Eberl's Claim Service, and Liberty Mutual Insurance, Respondents.

Court of Appeals No. 17CA0294

Colorado Court of Appeals, Div. V.

Announced November 16, 2017

Burg Simpson Eldredge Hersh & Jardine, P.C., Nickolas D. Fogel, Nelson Boyle, Stephan J. Marsh, Englewood, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Ruegsegger Simmons Smith & Stern, LLC, Michele Stark Carey, Denver, Colorado, for Respondents Eberl's Claim Service and Liberty Mutual Insurance

Opinion by JUDGE NAVARRO

¶ 1 In this workers' compensation action, Judy Berthold (claimant) challenges an order of the Industrial Claim Appeals Office (Panel). To resolve claimant's challenge, we must consider the effect of her approved request to begin treatment with a new physician. Specifically, did her treatment with her newly approved physician automatically terminate her first physician's status as an authorized treating physician (ATP)? The answer matters because her first physician opined that claimant had reached maximum medical improvement (MMI) after claimant had begun treating with her new physician. If her first physician was no longer an ATP at the time of this MMI finding, claimant's employer could not properly rely on that finding.

¶ 2 To answer the broader query, we must address two subsidiary questions of first impression. First, does newly enacted section 8-43-404(5)(a)(VI)(B), C.R.S. 2017—which automatically terminates the relationship between an ATP and an injured worker upon treatment with a new ATP—apply retroactively to a request to change physicians made before the statutory provision took effect? Second, if it does not apply retroactively, does the termination provision contained in section 8-43-404(5)(a)(IV) apply to all changes of physician or is it limited to changes made under section 8-43-404(5)(a)(III)"within ninety days after the date of the injury"?

¶ 3 We hold that the termination provision of section 8-43-404(5)(a)(VI)(B) applies only to a request to change a treating physician made after the effective date of that provision. We further hold that section 8-43-404(5)(a)(IV) applies only to changes of physician obtained under section 8-43-404(5)(a)(III). Because claimant's request to change her physician predated section 8-43-404(5)(a)(VI)(B), and because the request was not granted under section 8-43-404(5)(a)(III), her treatment with her new physician did not automatically terminate her first physician's status as an ATP. We therefore affirm the Panel's order.

I. Factual and Procedural History

¶ 4 Claimant worked as a property damage adjuster for Eberl's Claim Service (employer). In June 2014, she sustained injuries from falling off a roof she was inspecting for employer.

¶ 5 After the accident, claimant received medical care from Dr. Anjmun Sharma, an ATP. Several months later, claimant requested and received permission to begin treatment with Dr. William Miller. Dr. Miller evaluated her for the first time in February 2015. Yet, even after the agreed-upon change of claimant's physician, employer periodically sent her to Dr. Sharma for "demand appointments."

¶ 6 In January 2016, Dr. Sharma saw claimant and reported that she "was noncompliant in presenting for functional capacity evaluation and noncompliant in her completion of this task. I have, therefore, assigned maximum medical improvement [MMI] date as of 01/22/2016 with this report serving as the final dictated report for this claim." Dr. Miller, however, disagreed with Dr. Sharma's MMI determination, criticizing it for lacking "medicolegal sense." Despite this disagreement between medical practitioners, employer filed a final admission of liability (FAL) based on Dr. Sharma's MMI conclusion.

¶ 7 Claimant challenged the FAL's validity on the ground that, under section 8-43-404(5)(a)(IV)(C), Dr. Miller's assumption of her care in February 2015 automatically terminated Dr. Sharma's status as her ATP, rendering him unqualified to issue an MMI finding. As a result, she argued, the FAL was invalid and she was entitled to continuing temporary total disability benefits. Employer countered that section 8-43-404(5)(a)(IV)(C)'s automatic termination provision applied only to so-called "one-time" changes of physician permitted by section 8-43-404(5)(a)(III). And claimant's change of physician did not satisfy section 8-43-404(5)(a)(III).

¶ 8 The administrative law judge agreed with claimant, finding that Dr. Sharma's status as claimant's ATP terminated when she began treating with Dr. Miller, per section 8-43-404(5)(a)(IV)(C). The Panel reached the opposite conclusion, however, and agreed with employer that section 8-43-404(5)(a)(IV)(C) applied only if the worker sought a change of physician under section 8-43-404(5)(a)(III). The Panel further held that the termination provision in section 8-43-404(5)(a)(VI)(B), enacted in 2016, did not apply either because that provision was not in effect when claimant changed physicians.

II. Claimant's Contentions

¶ 9 Claimant contends that employer erred in relying on Dr. Sharma's MMI finding when issuing the FAL because Dr. Sharma was no longer an ATP at the time of his MMI determination. She presents two theories in support: (1) her treating relationship with Dr. Sharma was automatically terminated by section 8-43-404(5)(a)(IV) because it applies to all changes of physician; and (2) even if section 8-43-404(5)(a)(IV) does not apply to her change of physician, her relationship with Dr. Sharma was nonetheless terminated by recently amended section 8-43-404(5)(a)(VI).

¶ 10 Because claimant concedes that her physician change occurred under section 8-43-404(5)(a)(VI), we begin by assessing whether the new termination provision of sub-subparagraph (VI)(B) applies to claimant's change.

III. Does the Termination Provision Added to Section 8-43-404(5)(a)(VI) in 2016 Apply to Claimant's Change of Physician?

¶ 11 In 2016, the General Assembly amended section 8-43-404(5)(a)(VI) to add, among other things, a provision automatically terminating an injured worker's relationship with an ATP once the worker begins treating with a new ATP. Claimant argues that the legislative declaration accompanying this amendment requires it to apply to all workers' compensation claims and, thus, it should apply to all changes of physician regardless of the date of the change. Claimant is mistaken. Even where an amendment to the workers' compensation law applies to a claim regardless of the date of injury, the amendment does not necessarily apply to all transactions within that claim. Instead, the amendment applies only to transactions occurring after the amendment's effective date unless the legislature clearly directs otherwise, which the legislature did not do in the amendment at issue.

A. Relevant Statutory Provisions

¶ 12 In 2014, when claimant sustained her work-related injury, the Workers' Compensation Act (Act) provided a means of changing physicians under section 8-43-404(5)(a)(VI) :

In addition to the one-time change of physician allowed in subparagraph (III) of this paragraph (a), upon written request to the insurance carrier or to the employer's authorized representative if self-insured, an injured employee may procure written permission to have a personal physician or chiropractor treat the employee. If permission is neither granted nor refused within twenty days, the employer or insurance carrier shall be deemed to have waived any objection to the employee's request. Objection shall be in writing and shall be deposited in the United States mail or hand-delivered to the employee within twenty days.

§ 8-43-404(5)(a)(VI), C.R.S. 2014. Notably, this version of subparagraph (VI), the mechanics of which had not changed since the Act's 1990 reenactment, did not contain a provision terminating a claimant's relationship with a prior ATP upon a claimant's examination with a new ATP. Consequently, the Panel had held that the mere selection or designation of a new ATP under subparagraph (VI) did not have the effect of "deauthorizing" the previously authorized ATP. Jeppsen v. Huerfano Med. Ctr. , W.C. No. 4-440-444, 2003 WL 22997979 (Colo. I.C.A.O. Dec. 17, 2003) ; Granger v. Penrose Hosp. , W.C. No. 4-351-885, 1999 WL 603156 (Colo. I.C.A.O. July 20, 1999).

¶ 13 In 2016, the legislature amended subparagraph (VI) to include automatic termination language as well as other criteria and consequences of a physician change under this subparagraph:

(VI)(A) In addition to the one-time change of physician allowed in subparagraph (III) of this paragraph (a), upon written request to the insurance carrier or to the employer's authorized representative if self-insured, an injured employee may procure written permission to have a personal physician or chiropractor treat the employee. The written request must be completed on a form that is prescribed by the director. If permission is neither granted nor refused within twenty days after the date of the certificate of service of the request form, the employer or insurance carrier shall be deemed to have waived any objection to the employee's request. Objection shall be in writing on a form prescribed by the director and shall be served on the employee or, if represented, the employee's authorized representative within twenty days after the date of the certificate of service of the request form....

(B) If an injured employee is permitted to change physicians under sub-subparagraph (A) of this subparagraph (VI) resulting in a new authorized treating physician who will provide primary care for the injury, then the previously authorized treating physician providing primary care shall continue as the authorized treating physician providing primary care for the injured employee until the injured employee's initial visit with the newly authorized treating physician, at which time the treatment relationship with the previously

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