*1 supports and case law the conclusion appointing from the action of the au-
thority, employee the burden is on the authority arbitrarily,
establish the acted ca-
priciously, contrary to rule or law. There-
fore, I dissent.
SCOTT, J., joins in this dissent.
COLORADO COMPENSATION AUTHORITY,
INSURANCE
Petitioner,
Dominick A. NOFIO The Industrial Office, Respondents.
Claim
No. 93SC535. Colorado,
Supreme Court of
En Banc.
Dec. *2 Opinion delivered
Justice ERICKSON of the Court. to review granted We certiorari Authori- Compensation Insurance
Colorado 15, 1993) (Colo.App. July ty, 92CA1441 No. (not publication). primary for selected certiorari is: accepted for review on issue we compen- in a workers’ Whether hear- is entitled a de novo sation matter 8-43-207, 3B ing pursuant to section (1994 Supp.), medical utiliza- after C.R.S. 8-43-501, 3B under section tion review (1994 Supp.), results care changing his health payments for medical retroactive denial of rendered. services granted on no. We certiorari Our answer is need not ad- issue which we additional not the due dress.1 We do address we issue because claims raised second protected petitioner lacks find that receiving medical care property interest receiving Accordingly, we certain of treatment. the court of reverse and remand to approve the order entered with directions Panel. Claim the Industrial (Nofio) a work- A. Nofio suffered Dominick 1982, 5, injuring accident on related October being After re- upper back. his neck and clinics, was referred pain to two ferred 1983, and then to Fuller in to Dr. James Walker, D.C., in L. chiropractor William supervision, Walker’s March 1985. Under including chiro- palliative Nofio received massage therapy treatments. practic and Authority, Compensation Ins. Colorado Denver, Steiner, Boyd, A. Carolyn Michael J. 1986, 5, April the Divi- In an order dated petitioner. permanently Nofio to be Labor found sion of pain. chronic totally due to disabled Harriss, P.C., Robert C. Dawes Anderson, D.C., Nofio’s chiro- provided Scott Dawes, A. Durango, respondent Dominick beginning September, practic treatments Nofio. February until From March 1985 1,000 chi- approximately Ap- Nofio received for Industrial Claim appearance No ropractic treatments. peals Office. provide it cause does is: 8-43-501,
1. The second issue health a claimant's an order to or after Whether section retroactively deny pay- provider or to Supp.), the Due Process Clauses violates past services rendered. be- ments Constitutions States and Colorado United 4, 1991,pursuant to changing physicians On March the Medical der and ruled that the 8413-501, Utilization Review findings and conclusions of the ALJ were (M-U-R statute), Supp.)2 supported by substantial evidence. Au- Colorado Insurance Nofio filed a notice of to the court (CCIA) thority requested a utilization review August July 1992. On *3 of Nofio’s medical treatment and the Di- 1993-, appeals the court of Di- held the Compensa- rector Division of of the Workers’ by rector’s order terminated care of Nofio (Director) appointed tion a utilization review previously authorized and that he (review committee). committee The review therefore entitled to a de novo committee consisted of two medical doctors After the court of the denied CCIA’s chiropractor. and one The two medical doc- petition rehearing, granted we certiorari. tors concluded care should have been concluded within three to six injury,
months the II of and recommended a physician and a retroactive denial A person claiming benefits under payments By from 1986. an order dated workers’ 1, 1991, adopted October the Director the reasonably necessary medical benefits are majority recommendation of the review com- to relieve the claimant from the effects of a mittee to medical and ret- injury work-related or illness. v. Industrial Grover deny roactively payment 1, January after m’n, (Colo. 705, Com 759 709 P.2d 1988); Director, Labor, Hargett v. Div. sought review of the Director’s order 1316, (Colo.App.1992). P.2d Pursuant (ALJ). Judge an Administrative Law On (1994 to section Supp.), 19, 1992, ALJ, February reviewing the after claimant under the Workers’ the recommendation the review commit- Act sup is entitled to medical treatment and tee, physician, finding affirmed the plies may reasonably “as be needed at the that the recommendation was based on sub- injury time of or occupational the disease and stantial evidence. The ALJ modified the during thereafter disability the to cure and order, limiting the retroactive denial bene- relieve employee the from the effects of the charges fits to for brief only. examinations injury.” 1992, 6, petition On March Nofio filed Assembly The Colorado General review the ALJ’s order with Industrial passed provide (Panel). M-U-R statute 1988 to Claim Panel The Panel a method 17, 1992, remedy to review and medical entered final order ser August its finding may reasonably vices which not be standing necessary that Nofio lacked to contest 225, reasonably appropriate light accepted retroactive denial of benefits.3 Ch. 1, 8-43-501(5)(d), professional 3, sec. sec. Colo.Sess.Laws standards. Ch. 8- 49-102, 1357-58. The Panel affirmed ALJ’s or- 1988 Colo.Sess.Laws 375.4 Under l(2)(a), 2.Section requested 8-43-50 such committee shall conduct uti- insurer, Supp.), "[a]ny reviews. states that lization self-insured employer, may request or claimant review under 3. The Panel cited the 1991 addition subsection provisions of this section of services rendered 5(d) statute, to the which read: provid- to this article a health care specifying the director issued an order er.” payment the denied, of fees in a case be provider may request the health care 43—501(3)(a), Section 3B 8— de novo before an administrative law Supp.), provides part: in relevant judge by filing application with- appoint The director shall members of utiliza- thirty days after date of the certificate of purposes tion review committees of this mailing of the order. section. The director shall establish commit- l(5)(d), Ch. sec. 1991 Colo. tees based on the different areas health care Sess.Laws 1357-58. practice requests for which for utilization re- director, may purpose view made. rule and 4. The medical utilization review 8-43-501(1): regulation, §in qualifications is stated shall establish the members the different general assembly committees and the hereby finds deter- practice areas of health care employers which each mines that insurers and self-insured statute, appellate imposes an standard of of Labor the statute Division the M-U-R by claim- requests determining for review filed the ALJ to addresses review restricts insurers, ants, employers. supported by and self-insured whether the Director’s ap- to the Pursuant P.2d substantial evidence.” at review committee of three points a utilization independently physicians who review ambigu The court of resolved necessity appropriateness ity by separate creating two review routes. vote, provided. By majority re- limit Review under the M-U-R statute was the Director view committee recommends to of the record to determine ed not a whether or supported whether substantial evidence appropriate. The viders is review commit- evidentiary hearing An un order. Director’s tee, discretion, also recommend its *4 hearing provision autho general der the was retroactive denial of fees. only rized “if termi the Director’s has Director, Labor, Hargett 854 v. Division of e.g., of chiro nated a (Colo.App.1992), the case P.2d 1316 was first care, party if a to practic or seeks terminate The interpret M-U-R statute. M-U- to the pro medical benefits based the review Hargett in R statute effect when decided ” ceedings.... Id.5 request hearing party a to a at which allowed report “ad- the review committee’s would be in this relied The court of evidence,” that provided in but also missible finding a upon Hargett that de the decision report the utilization review com- “if the of hearing remedy. appropriate novo was the his upon mittee which the director based Auth., v. Colorado Ins. sup- this order in the case under section is 1993). (Colo.App. July No. 92CA1441 evidence, ported by substantial the director’s stated: court by order shall not be altered the administra- Director, Hargett In Division Labor 8-49-102(56)(b)(III), judge.” § law 3B tive of adversely ... that a party this court ruled 1990). (repealed The court C.R.S. by previously termination au- affected ambiguity the stat- identified inherent the § thorized care under 8-43-501 can health ute, phrase stating “While the that: ‘admissi- request litigated the matter be de suggests evidentiary, an or ble evidence’ novo, in an to grant novo adversarial hearing, the statute does not de § authority; regular process under 8-43- any fact-finding hearing instead the ALJ Or, change may pay that a required for all ser- the committee conclude should be to spe- provider may in a health care within same pursuant be to this article which vices cialty appropriate.... such circum- [I]n is reasonably injury needed at the time of an or stances, remedy for the affected we believe occupational cure and relieve an disease to hearing evidentiary party request to un- an on-the-job inju- employee from the effects of an hearing provisions of the and review However, der ry. em- insurers self-insured Act.” pay ployers care should not be liable to Hargett, 854 at 1319. P.2d compensable injury or services unrelated hearing provi appropriate and review reasonably necessary are not or which 8-43-207, sions, § that: now codified at state reasonably according accepted appropriate to any "Hearings contro shall be held to determine general assembly, professional standards. The any arising concerning articles versy issue under therefore,hereby purpose that the declares 8-43-207(1), C.R.S. 40 47 of this title.” 3B to sec- this authorized utilization tion is to Ap v. Industrial Claim See Donn provide a mechanism to review peals Office, (Colo.App.1993) P.2d n article pursuant remedy to services rendered this (“[A] adversely party affected termination reasonably necessary rea- which not be previously health care under 8-43- authorized according accepted sonably appropriate request litigated be de 501 can the matter standards. fessional hearing pursuant an novo in adversarial (1994 Supp.) (emphasis 8-43-207...."); regular hearing process under added). Co., P.2d see McWhorter v. CNA Ins. also 1993) ("Inasmuch (Colo.App. 5. The court also stated that: hearing requested evidentiary at the claimant order, recognize appealed in health care his re time he the Director's “[W]e request quest as a provider may termination of should treated well result 8-43-207.”). particular type under of health care treatment.... 207.... Because provider. the Director’s order The M-U-R statute this procedure case ordered termination of the forth sets be followed once previously claimant’s authorized provider is ordered: provider, claimant have If the director orders sub- adjudicated matter de in an adver- (3) of section this sarial ALJ. provider ... ... be made Nofio, op. slip at 2. days receipt seven shall have from agree upon director’s order in which to Nofio, appeals gave the court of level If can- and, undue breadth the Director’s order agreement day not reach within the seven therefore, holding of Hargett. exceeded the period, time the director shall select three require The order of the Director cannot providers. A new shall be chosen termination because the M-U-R the three so selected statute authorizes neither the termination party request who was successful in the nor the recommendation termination of filed, If review. the successful 8-43-501(3)(e), medical treatment. Section party notify shall the division name provides 3B Supp.), days of the new within seven options available to the review committee: potential provid- the selection the three (c) ... Each committee shall issue a re ers. the new health is not *5 port to findings the director on the days, selected within seven such the di- each case For reviewed. each a com rector shall select the may by majority mittee recommend a vote of such committee be or (1994 8-43-501(4), Supp.). § 3B C.R.S. Such respect dered with to a case or that a procedure a ensures that care is not termi- A be ordered. commit chosen, nated and that a new tee, vote, may a unanimous recommend either the claimant or the Director. The payment that the director order that possibility mere that Nofio’s benefits be charged fees for services in the be case terminated at a later date does not entitle retroactively denied.6 hearing. him to a de novo Nofio will be Once the review hearing committee issues a entitled to a recom- under section 8- mendation, 8-43-501(3)(c) receipt mandates 43-207 when his of benefits is threat- ened, accept that: “The director the receipt shall recom- not his par- of services from a mendation a chiropractor of committee and base the ticular receipt partic- order or his of a type entered to this section thereon.” ular of treatment. Therefore, the Director must defer to the provision specifi- No in the M-U-R statute committee,
recommendation of the a recom- cally authorizes a claimant to receive a de suggest mendation which cannot a termi- before an ALJ.7 The court of (3)(c). nation of care. 8—43—501 appeals Hargett provided a such hear- only Nor there evidence that the if ing benefits or a of benefits were effect terminated, of the Director’s order is to beyond terminate Nofio’s a recommendation Following care. the recommendation of the reach of the M-U-R relying statute. Cases committee, the Director a ordered as well ease before this By ordering article.”); (1990 “change (5)(b)(III), provider,” the Di- 8-43-501 3B C.R.S. complied statutory requirements. rector with the Supp.) (providing appropriate review stan by adopt- The Director also followed the statute claimant, insurer, dard when "a or self-insured ing the unanimous recommendation of com- employer appeals by requesting ... mittee that fees be denied. judge before an administrative law ac article”). cording provisions to of this review, provisions At the time of two Co., court McWhorter v. CNAIns. hearings M-U-R statute referred to for claim- (Colo.App.1993), P.2d 868 1128 ruled that the 8-43-501(5)(a), ants. See hearings deletion of references to did not alter claimant, insurer, Supp.) (allowing a dissatisfied analysis Hargett and still entitled claimants to employer "appeal self-insured or an order under if benefits were ter specifying ... be made minated. by requesting to this
719
expectation
have more than
unilateral
court,
procedural reme-
have exceeded the
must, instead,
legitimate
He
have a
compensation
it.
for workers’
dies intended
Co.,
to it....
claim of entitlement
v. CNA Ins.
868
claimants. McWhorter
(Colo.App.1993); Dorm v. Indus-
P.2d 1128
interests,
course,
Property
are not cre-
Office,
P.2d 873
Appeals
trial
Claim
Rather,
they are
ated
the Constitution.
v. Indus-
(Colo.App.1993); see also Williams
are defined
created and their dimensions
P.2d
Appeals Office, 862
trial Claim
understandings
by existing rules or
(addressing
preclusive
(Colo.App.1993)
independent
from an
source such as
stem
proceeding
collateral
of an
effect
M-U-R
law.
state
purposes);
Restaurant
estoppel
Mason Jar
Roth,
Office,
862 P.2d
Regents
v. Industrial
Claim
Board
U.S.
(1972).
(same).
2701, 2709,
(Colo.App.1993)
these
Under
er state particular from a to receive medical care Ill provider or to receive a A claimant who has been awarded fact, type of Nofio has not treatment.9 in a workers’ benefits any “legitimate specifically alleged claim of procedural entitled to *6 proce- of a The mere existence entitlement.” may be those benefits terminated. provider’s a treat- dure to determine whether 1319; Eldridge, P.2d at see Mathews v. 854 medically necessary expand does not ment is 893, 319, 47 424 L.Ed.2d 18 96 S.Ct. U.S. rights. In Ficarra v. Nofio’s substantive (1976).8 deprivation In a of claim Regulatory Agencies, Department of he process, Nofio establish that has due must 6, (Colo.1993), we held that: P.2d receiving property right treat a either however, is right hearing, a statu- Th[e] provider or in specific from a ment based, torily and the fact that General receiving type a of treatment. We specific a Assembly right a to such has created exists. hold that neither interest plaintiffs not mean that the does existence The determination a independently to it as matter are question of state property a interest is a In order to establish constitutional law. law: they property have a interest benefit, is entitled to of their licenses that in a a renewal property have a interest To process, protections procedural person clearly have than an must more they plaintiffs have to He would show for it. must abstract need desire (1) however, McDonnell, 539, receiving claimant’s interest in U.S. in a also v. See Wolff 557-58, 2963, 2975-76, (2) particular provider or a L.Ed.2d 935 94 S.Ct. treatment from particular type ("The consistently held that Court has of treatment. required kind at some time some property person finally deprived 8-43-404(5)(a), of his 9. Section interests.”); Friendly, Henry Kind J. Some injury, the Supp.), all cases of "[i]n states that (1975). Hearing, 123 U.Pa.L.Rev. 1267 right in employer the first or insurer has physician attends said who instance select disapprove Hargett as that case insofar We Although may re- employee.” claimants injured de for a claimant authorize a novo , ordered, physician quest We is terminated. hold of treatment when only "upon proper change may be ordered property possesses interest in that a receiving grants showing.” provision claim- No other Id. We benefits. workers' entitlement," provider. right to select their medical "legitimate ants the claim of find no such legitimate therefore, had a claim of holding entitlement affirm the of the court of renewal their licenses.... that the with case be remanded di- rections to conduct such a alleged specific Nofio has not Nofio entitlement Auth., Compensation Colorado Ins. No. any statutory nor does basis exist to find (not 1993) July 15, (Colo.App. 92CA1441 se- such an entitlement. publication). lected for official IV We hold that is not Nofio entitled to a de I. to section 8-43-207 5, 1982, injured On October Nofio his neck changed, because his benefits have been not upper back in a work related accident. terminated. Section 8-43-501 does vio- In an order dated December right late Nofio’s to due because he Division of Labor found receiving that after has protected property interest receiv- treatment, including pallia- extensive medical ing specific care from a tive permanently totally receiving or in particular type of treatment. pain. disabled due to chronic The Colorado Accordingly, we reverse and remand to the Compensation (CCIA) Authority Insurance court approve with directions subsequently pay refused Nofio’s mas- order entered the Industrial Claim treatments, sage therapy leaving chiroprac-
Appeals Panel. tor, Walker, D.C., Dr. sole Nofio’s September Dr. Walker LOHR, J., dissents. left chiropractor, the area and a second Dr. VOLLACK, JJ., join KIRSHBAUM and Anderson, D.C., Scott continued to treat No- the dissent. fio. dissenting: LOHR Justice 4, 1991, On March the CCIA commenced 1, 1991, This case involves an October or- this Medical Utilization The Di- Review. (Com- der the Director of the appointed Division Work- rector a review committee (Director), mittee) ers’ pursu- entered that consisted of two medical doc- (M-U- Shoemaker, ant to the Medical Utilization Review M.D., tors —Howard and John P. R) statute, Smith, M.D.—and chiropractor Jeffrey one — Supp.),10requiring claimant, Dominick A. B. Prystrupa, D.C. Each Committee mem- (Nofio), his medical ber submitted a recommendation based on *7 retroactively denying payment and for treat- Nofio’s in medical records contained his 1, January judicial ment after Upon 1990. file, workers’ claim a review of review, however, Ap- the Colorado of Court medical non-treating records made a chi- peals that held Nofio is a ropractor, entitled to de novo report and a submitted Nofio’s 8-43-207, hearing under section 3B provider C.R.S. sole care Anderson. Both —Dr. (1994 Supp.), and remanded the case order medical on doctors the Committee recom- place. for that majority to take change in provider mended a health care and reverses the court of and holds chiropractic that concluded that long- nowas prove Nofio to failed a termination bene- er beneficial. Both medical doctors also rec- fits, than merely rather a ommended a payments retroactive denial of and thus is not to a hearing. de novo Prystrupa, Dr. chiropractor 1986. Maj. op. respectfully disagree. Committee, at 11. I I on the recommended that some that continue, hold unless the chiropractic Director’s order treatment but also rec- clearly only change providers authorizes surgical ommended that intervention and discipline within the same psychological as the current explored. be treatment Dr. ie., provider, chiropractic Prystrupa recommended retroactive denial would, is entitled to a de I payments 1986, novo for “brief exams” from but 43-501, subsequently repealed 8-43-501 has been 3B 10. reenacted and otherwise amended. See 8- to novo to section 8- should be con- a de
suggested that “settlement” monthly regarding payments for after medical utilization review un- 43-207 sidered in an treatment. der section 8-43-501 results order changing health care claimant’s 1991, 1, dated In an order October retroactively denying payments for med- majority’s recommen- adopted Based the statu- ical services rendered.11 provid- “change dation ordered law, tory language and I would Colorado pay- made” and denied er be by the any order Director that hold after services rendered ment mandates 1, applied January 1990. provider treating the claimant —without ex- Law of this order an Administrative pressly limiting the new to same (ALJ). February an Judge In order dated e.g., discipline provider, as the current chiro- 19, 1992, ALJ affirmed the Director's discipline’s practor method made on order that be —terminates subject to a and is de treatment therefore supported by it was substantial the basis that hearing under section 8-43-207. ALJ, however, evidence the record. payments the retroactive denial of modified 20, 1986, January begin rather than June II. 1992, I, 6, On March Nofio filed a majority agree I with the that a workers’ petition with the Industrial Claim compensation claimant is entitled (ICAP) Panel to review the ALJ’s order. reasonably necessary medical benefits as are 1992, order, 17, August its final dated from the effects of a relieve the claimant standing ICAP found that Nofio lacked injury E.g., or illness. work-related Grover paid contest retroactive denial benefits Comm’n, 705, 759 P.2d Industrial and thus the denial affirmed (Colo.1988). majority agree I also with the correctly The ICAP of benefits. acknowl- Assembly passed the that the General M-U jurisdiction lacked to address edged that it R in 1988 order review and statute challenge. Lastly, Nofio’s may not remedy medical services that ICAP the ALJ’s order was concluded necessary reasonably reasonably appropri supported by substantial and af- evidence light accepted professional ate in stan firmed ALJ’s order. Ch. sec. 1988 Colo. dards. appealed to the Colorado Court of however, disagree, Sess.Laws appeals heid in an
Appeals. The court of
majority’s
the Di
with the
conclusion that
“[bjecause
opinion that
the Di-
unpublished
“change
requiring that a
rector’s order
in this case
a termi-
rector’s order
ordered
provider be made” did not terminate Nofio’s
by previously
claimant’s care
nation
an
treatment. When such
provider, claimant is entitled to
authorized
type of
termination of the
authorizes the
adjudicated
the matter
de novo
have
currently receiving e.g., chiro
—
Nofio,
adversarial
ALJ.”
practic care^—the claimant is entitled
de
rejected
slip op. at 2. The court of
*8
pursuant
ALJ
to
hearing before an
statute
Nofio’s contention that
M-U-R
Director,
Hargett v.
Divi
section 8-43-207.
because it does not
should be invalidated
Labor,
sion
854 P.2d
to base its recommen-
require
Committee
(Colo.App.1992).
applicable
of care
in
dation on the standard
practice in which the
particular field of
A.
engaged.
Id. The
provider
rejected
the remain-
court of
further
general provision
8-43-207 is
Section
at 3-4.
ing issues raised
Nofio.
Id.
evidentiary hearings
for
authorizes
disputes. This
stat-
workers’
granted certiorari to consider whether
We
ute,
part, provides:
in
compensation claimant is entitled
a workers’
statutory
hold
Nofio has
granted
to
Because would
also
certiorari
consider wheth
11. We
case,
hearing
right
in this
Nofio's
de novo
violates the Due Process Clauses
er
challenge
not be addressed.
need
and Colorado Constitutions.
of the United States
(1)
power
Hearings
prescribed
shall be held to determine mittee’s
section 8-43-
501(3)(c),
any
concerning any
part:
controversy
issue aris-
which states
ing
to 47 of this
under articles 40
title.
[This
shall
the medical
committee]
hearings, the
connection with
director and
necessity
appropriateness
and
of care
judges
empowered
are
administrative law
pursuant
vided
to this article
conduct-
to:
ing an
review of
extensive
the medical
report
(a)
records
shall issue a
division,
[and]
In the name of the
issue sub-
findings
the director on
of each
case
poenas
documentary
for
evi-
witnesses
reviewed. For
each
committee
dence which
served in
shall be
the same
may
by majority
recommend
vote
court;
subpoenas
manner as
the district
change
such committee that
be ordered
(b)
oaths;
Administer
respect
with
to a
or that a
(c)
evidentiary rulings;
Make
committee,
A
be ordered.
(d)
repeti-
Limit
cumulative or
or exclude
vote, may
unanimous
recommend that the
examination;
proof
tive
or
payment
director order
fees
charged
services
case be retroac-
tively
accept
denied.
director shall
(h)
Control the course
of a
recommendation
committee and
persons
conduct of
pursuant
base the order entered
to this
room;
thereon.
director’s order
Supp.).
It is
specifies
payment
charged
fees
language
clear from the
of the statute and
retroactively denied,
services
a case be
powers
the enumerated
of the ALJ that sec-
are
pay-
whose fees
so denied
tion
provide
8-43-207 was intended to
with, bill,
may
ment
not contract
or
adversarial
which testimony
at
fees,
(em-
charge, the claimant for such
presented.
heard and evidence is
Further-
added).
phasis
more,
applies
expressly
“any
the statute
only empowers
The M-U-R statute
the Com-
controversy concerning any
arising
issue
un-
providers
mittee to order a
(em-
der articles 40 to 47 of this title.” Id.
deny payment
providers.
added).
phasis
The M-U-R
statute does
authorize the
Committee to terminate treatment. Not
B.
only is such a
evident
conclusion
from the
establishes a
M-U-R statute
“mecha-
language of the
the Colorado Court
remedy
nism to review and
services rendered
same
reached the
conclusion in
may
which
to this article
not be
interpreting an
version of
earlier
the M-U-R
reasonably
reasonably
necessary
appropri-
or
statute.12
See
provisions of’ the M-U-R statute. 8^13- (2) entirely; ant’s treatment a cessation of a 501(2)(a). stage, At the initial review treatment, e.g. certain reports. submit care; in health care 8-43-501(2)(a). limiting expressly without such a appoints discipline
The Director three new members to within the medical *9 existing the Medical Utilization Review Committee to the Because the brought statutorily review cases under this is not statute. authorized to terminate the 8-43-501(3)(a),(b). § scope entirely The of this Com- claimant’s treatment under M- the previously ysis § applicable subsequent are while nevertheless to M- 12. previously Co., 8-43-207 was 8-53-103. Al- U-R statutes. See McWhorter CNA Ins. though Hargett pre-1991 interpreted the version (Colo.App.1993). 868 P.2d statute, interpretation of the M-U-R and its anal- statute, after' third situations ties the Director’s decision made. U-R the second and likely provides, part, that: occur. This subsection above are the most to noted Hargett, claim- In the Director wanted the (5)(a) claimant, insurer, or self [A] by orthopedic physician, an ant to be treated employer may appeal insured an order to chi- the claimant wished continue whereas specifying change that with occur re Hargett, 854 P.2d at ropractic treatment. case, change spect to thus Hargett The court addressed made, payment be or that the of fees the above held the second situation noted and to case be denied either the that: judge an director or to administrative law requesting by to has terminated a this the Director’s order [I]f article.[14] type e.g., chiroprac- party or if a seeks terminate
tic pro- medical benefits based on.the (b)(III) claimant, insurer, or self-in- ceedings, party aggrieved the must seek an employer appeals sured order issued by requesting appropriate relief an eviden- (S) to subsection this section In tiary hearing [section under 8-43-207]. by requesting an admin- authority cases ALJ will have full the judge provi- according to the istrative la%v review the matter novo and to enter de article, report the sions of this the uti- appropriate order based on the evi- upon lization review committee which the dence submitted. pursuant to director based the order sub- Id. at 1320. (3) this section shall be admissi- adopt Hargett analysis the I would evidence, report if the ble present apply it to facts of the ease the upon review committee which utilization the third situation above. resolve noted the director based the order case, that present the Director ordered the supported by substan- under this section is provider made.” The M- be “[a] evidence, the shall tial director’s order not “pro- U-R not the statute does define word judge. the law be altered administrative vider”; Fur- nor order. did Director’s (em- 8-43-501(5), Supp.) thermore, reports three submitted added). phasis M-U-R statute thus The uncertainty reflect the Committee members appeal allows claimant to the Director’s type Nofio will receive what of treatment for a decision to either ALJ recom- the future. Both medical doctors back the Director reconsideration. chiropractic that mended care be terminated.- appeal process presented by the M-U-R chiropractor that Even recommended however, applies to orders non-chiropractic part care be considered as claimant’s treatment. I there- of Nofio’s future treatment. would P.2d at 1320. I would hold that under present hold that in cases like the fore Hargett analysis, the Director’s order as to where the Director’s order is clear present possibility case includes type of new what treatment health will Nofio’s be terminated render, appeal will replaced some other of treat- hearing.13 to an ALJ and receive a de novo therefore, ment; to a de hearing under section 8-43-207. D. anomaly of M-U-R statute es- M-U-R statute Subsection par- allows the admission evidence well available to it tablishes retroactively denying payment "a tee’s order 13. Had the Director ordered discipline,” or "a vider be made within same because the statute ex- made," chiropractors I hold subsequently pressly prohibits a changed, terminat- that the Director rather than seeking claimant for reimbursement from the ed, the claimant's treatment. (3)(c), services rendered. 8—4—501 (1990 Supp.). agree the ICAP's final order that with standing challenge the Commit- does not have *10 therefore, benefits; type as a nation review based on substantial evidence provider Hargett, standard. the court of health care irrelevant ma- is to the interpreted jority’s analysis. majority apply- an earlier version of the M-U-R If the were ing Hargett analysis, required statute that: it concluded would be to determine that future Nofio’s treatment not [section 8-43-501] Because does autho- solely chiropractic would consist care. benefits, rize termination of medical we simply support The record does conclude that review to the ALJ under order, assumption. The Director’s and the 8^43-501(5) is to a [section ] limited recommendations, Committee members’ of the record to determine whether the open possibility leave that future Nofio’s supported by Director’s order is substan- any chiropractic care not include care. tial evidence. A complete chiropractic termination Hargett, 854 P.2d at Under the Har- exactly Hargett what the court found to be analysis gett interpretation of the M-U- scope appeal process pre- outside the statute, options R a claimant has several by Hargett, scribed M-U-R statute. appeal available to an order the Director. (stating “if P.2d at 1320 the Director’s First, appeal the claimant could the Di- type order has terminated a rector’s order to the Director for reconsider- subject e.g., chiropractic care” it is 8^43-501(5)(b)(II).15 ation under subsection If hearing). de novo future Nofio’s Second, the appeal claimant could an order provider chiropractor, not a changes the claimant’s benefits to an Hargett then dictates that Nofio’s benefits ALJ to review the record in order deter- have been “terminated” and that he is enti- supported by mine whether tled ato de novo substantial under evidence subsection 8-43- (5)(b)(III). Third, ap- the claimant could procedure selecting provider The a new peal type an order that terminates of under the M-U-R statute fails to ensure currently benefits the claimant receives to an Nofio’s treatment will continue to consist ALJ for de novo under section 8- solely treatment. See 8- Hargett, See 43-501(4), 43-207. P.2d at 1319-20. I Supp.). This sub- agree Hargett interpretation with the court’s provides: of the M-U-R statute and would hold that the director ... orders an order clearly the Director that provider be made provider limits the in health care days receipt shall have seven from the discipline another in the same agree the director’s order which to subject the current to the sub- upon provider. If the claimant ... can- stantial evidence standard review sec- an agreement not reach within the seven tion 8-43-501.16 day period, time the director shall select providers practice three who the claim-
E. geographical ant’s location from lists sub- majority rejects Hargett professional analy- mitted chiro- by concluding practic organizations. sis17 in health A new can never constitute a termi- shall be chosen from the list established Director, 15. In event majority "disapprove[s] Hargett of an to the 17.The insofar as that appoints authorize a de novo a new Committee to consider claimant when a of treatment is termi- the case and make recommendation either op. Maj. (emphasis origi- nated." nal). at 719 8n. agreeing with the first Committee’s recommen- making dation a different recommendation. majority also holds that a claimant has (5)(b)(II), 3B "legitimate claim of entitlement” to receive particular type of treatment and thus the claim- decision, Hargett request by 16. As noted in the process protection. Maj. ant can no due assert evidentiary hearing a claimant for an under 8- op. at 718-719 and 719 n. Because I would 43-501 should be treated the if it same as were right hold that Nofio’s a de properly brought under 8-4-207. derives from a I do not P.2d at 1320. address the issue. *11 party by the subsection pursuant to this Petitioner, AGUILAR, request Christopher for re-
who was successful shall be notified The director view. name of the selected days of the establishment
within seven of the State of PEOPLE (4). If Colorado, Respondent. this the list subsection provider is not select- the new health care No. 93SC536. days, director seven ed within such attend who shall shall select Colorado, Supreme Court of from such list. En Banc. Director are unable Id. If Ñoño and the 19, 1994. Dec. chiropractor, agree on new entirely consisting a list could establish
non-chiropractor providers. health care undoubtedly chi- a scenario terminates
Such
ropractic care.
III. issue, I a dis-
To resolve this would draw changes the
tinction between an order that provider and an order
claimant’s health care type of care health terminates I further treating the claimant. would
vider terminating the
hold that an order treating
health scope of stat-
falls outside the the M-U-R subject and is procedure
ute’s thus hearing under sections 8-43-207.
a de novo Director’s
A occurs when the “termination” clearly does limit the
order providers within the same
providers other
discipline as the current health care present order in the
Because Director’s non-ehiropractie and the allows support the
record does not conclusion solely of will consist
Nofio’s future treatment No- the order terminated The facts this
fio’s benefits. Hargett decision
statutory language, and the that an majority’s conclusion
contradict the can requiring of benefits. constitute a termination
never reasons, dis- respectfully foregoing
For majority opinion and would
sent appeals. judgment of the court of
affirm JJ., YOLLACK, join
KIRSHBAUM
this dissent.