IN THE MATTER OF THE CLAIM OF DIANE L. GARNER, Claimant, v. TOWN OF IGNACIO, Employer, and COLORADO INTERGOVERNMENTAL RISK SHARING AGENCY, Insurer, Respondents.

W.C. No. 4-288-201Industrial Claim Appeals Office.
October 5, 2001.

FINAL ORDER
The respondents seek review of a supplemental order of Administrative Law Judge Martinez (ALJ Martinez), which authorized a change of physician to Dr. Pino, and a subsequent order of Administrative Law Judge Gartland (ALJ Gartland), which ordered the respondents to pay for treatment rendered by a referral from Dr. Pino. We affirm.

I.
The claimant suffered a compensable injury to her left thumb in 1995. Following two surgeries, one of the claimant’s treating physicians, Dr. Yocum, placed the claimant at maximum medical improvement (MMI) with an 11 percent upper extremity rating. The respondents admitted liability accordingly.

The claimant’s symptoms worsened and on February 18, 1998, she returned to Dr. Yocum. Dr. Yocum opined that claimant was no longer at MMI, and he injected her joint. He further stated that if the claimant did not improve after the injection she would need one of two surgical procedures. Dr. Yocum retired from practice in March 1998.

The claimant filed a petition to reopen based on a worsened condition. At the respondents’ request, the claimant was examined by Dr. Pino in September and October 1998. In September Dr. Pino stated that, although he might not be “the best person to give an actual second surgical opinion on her thumb due to the complexity” of the problem, he recommended x-rays and injection of her “basilar joint.” On October 9, 1998, Dr. Pino noted the claimant improved temporarily with the injection, but opined the claimant required evaluation by a hand surgeon. At the claimant’s request, Dr. Pino referred the claimant to Dr. Moneim.

Dr. Moneim examined the claimant on October 22, 1998, and advised against any surgery. However, he also stated that if the claimant “indeed cannot live with that pain, one may consider an exploration of the joint.” On February 9, 1999, Dr. Moneim issue a report opining that claimant reached MMI on October 22, 1998. However, on to February 12, 1999, Dr. Pino issued a report stating that, although he did not consider it “appropriate” to become the claimant’s primary treating physician because of the complexity of her problem, he would be “happy to help coordinate her care with a hand surgeon in Denver” if that is what the claimant desired.

The respondents voluntarily reopened the claim in October 1998 and the claimant sought a hearing requesting a “change of physician to Dr. Pino.” The respondents resisted this request arguing the claimant reached MMI on October 22, 1998, as determined by Dr. Moneim, and it was improper for the claimant to obtain additional treatment without undergoing a Division-sponsored independent medical examination (DIME) See Story v. Industrial ClaimAppeals Office, 910 P.2d 80 (Colo.App. 1995).

In a supplemental order dated July 1, 1999, ALJ Martinez found there was a “conflict in the evidence” between Dr. Moneim, Dr. Yocum and Dr. Pino as to whether or not the claimant reached MMI. The ALJ found that Dr. Yocum and Dr. Pino determined the claimant was not at MMI, and credited their opinions over that of Dr. Moneim. Consequently, ALJ Martinez determined there was not a “constructive challenge” to the treating physician’s determination of MMI, and the claimant was not required to undergo a DIME prior to determining the issue of MMI. Thus, ALJ Martinez entered an order designating Dr. Pino as the claimant’s authorized treating physician.

On review, the respondents contend substantial evidence does not support the ALJ’s finding that Dr. Yocum and Dr. Pino opined the claimant was not at MMI. The respondents also assert that Dr. Yocum’s opinion should not have been considered because he was not the treating physician at the time of the hearing in March 1999. Finally, the respondents argue the ALJ was obligated to credit the opinion of Dr. Moneim over the opinions of Dr. Yocum and Dr. Pino. We disagree with these arguments.

Section 8-42-107(8)(b)(I), C.R.S. 2001, provides that “an authorized treating physician shall make a determination as to when the injured employee reaches” MMI. If a party seeks to challenge the MMI determination of the authorized treating physician, it must first obtain a DIME on the issue, and the opinion of the DIME physician becomes binding unless overcome by clear and convincing evidence. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). However, a DIME is not a prerequisite to the ALJ’s resolution of a factual dispute where multiple treating physicians issue conflicting opinions concerning MMI, or a single treating physician issues conflicting or ambiguous opinions concerning MMI. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).

In cases of conflicting or ambiguous opinions concerning MMI, the issue is one of fact for determination by the ALJ. Blue Mesa Forest v. Lopez, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 199 5).

We reject the respondents’ assertion the ALJ erred in relying on Dr. Yocum’s opinion because he had not seen the claimant for 13 months at the time Dr. Moneim pronounced the claimant at MMI. In February 1998 Dr. Yocum expressly opined the claimant was not at MMI, and would need surgical treatment if she did not improve following the injection. The ALJ credited the claimant’s testimony that she did not improve. Under these circumstances, the ALJ plausibly inferred it was Dr. Yocum’s opinion the claimant was not at MMI in March 1999 (date of the hearing) because she had not yet undergone surgery. Moreover, the fact that Dr. Yocum had not examined the claimant since February 1998 went to the weight of his opinion, not its validity. Cf. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999) (fact that treating physician rendered “retroactive opinion” concerning the claimant’s ability to work went to its weight and did not render opinion speculative as a matter of law).

Neither did the ALJ err as a matter of law in finding that Dr. Pino believed the claimant was not of MMI. The ALJ plausibly inferred from the February 12, 1999 letter that Dr. Pino believed the claimant required referral to another hand physician for further examination and treatment, and Dr. Pino was willing to act as the “gatekeeper” and facilitate this referral. Although other inferences are possible from this letter, it was for the ALJ to resolve the ambiguity and we cannot say his interpretation is erroneous as a matter of law. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.

We reject the respondents’ contention that Dr. Yocum’s opinion should have been disregarded because he was no longer practicing medicine at the time of the March 1999 hearing. Section 8-42-107(8)(b)(I) provides for the initial determination of MMI to be made by “an authorized treating physician.” It is undisputed that Dr. Yocum was authorized and treated the claimant, and his opinion was entirely relevant to reopening of the claim. The statute does not require that a physician who has been authorized to treat the claimant be actively engaged in treatment at the time of the hearing in order to render an opinion on MMI, and we decline to read such a limitation into the statute. Indeed, if the General Assembly had intended such a limitation, it presumably would have restricted MMI opinions to those issued by “the attending physician.”See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).

Finally, we reject the respondents’ assertion the ALJ erred as a matter of law in crediting the opinions of Dr. Yocum and Dr. Pino over the opinion of Dr. Moneim. Indeed, Dr. Moneim’s opinion contains some degree of ambiguity since he indicated the claimant might seek revision of her joint in the event she could not tolerate continuing pain. The claimant testified that she desired that treatment recommended by Dr. Yocum because her pain and disability was continuing. Thus, the relative weight to be assigned the opinions of the medical experts was solely a matter for the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).

II.
In November 2000 a hearing was held before ALJ Gartland on claimant’s request that the respondents be ordered to pay for medical treatment rendered by Dr. Bach in April 2000. The claimant alleged that Dr. Pino referred her to Dr. Bach, a hand surgeon, in the ordinary progression of medical treatment.

ALJ Gartland credited the claimant’s testimony that Dr. Pino advised the claimant to seek treatment from a hand surgeon, and that Dr. Pino’s office provided a list of potential physicians, which included Dr. Bach. ALJ Gartland further found that on February 29, 2000, Dr. Pino expressly referred the claimant to Dr. Bach. Consequently, ALJ Gartland found Dr. Pino’s referral occurred in the ordinary course of medical treatment and Dr. Bach was authorized.

The respondents assert the evidence establishes that, although Dr. Pino “was clearly an authorized treating physician at the outset of his involvement in this case,” he was no longer authorized in February 2000, when he “purported to refer Claimant to Dr. Bach.” (Respondents’ Brief at 11). We are not persuaded.

Generally, the term “authorization” refers to a physician’s legal status as a health care provider authorized to treat the claimant rather than any particular medical treatment or procedure recommended by the physician. See One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). If an authorized treating physician refers the claimant to another physician in the ordinary course of medical treatment, the physician to whom the claimant was referred is also authorized. Bestway Concrete v. Industrial Claim Appeals Office, supra. The question of whether such a referral was made is one of fact, and depends on whether the treating physician exercised independent medical judgment in making the referral. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).

The respondents reason that because Dr. Pino did not provide any treatment after November 1998, and indicated he did not wish to become the claimant’s “primary” treating physician, he was no longer authorized to treat the claimant in February 2000. Therefore, the respondents assert he was not in a position to make a referral to Dr. Bach. However, there is no evidence whatsoever that Dr. Pino was ever “de-authorized” to treat the claimant. In fact, the order of ALJ Martinez expressly authorized Dr. Pino, and the respondents never sought medical utilization review as a basis for removing Dr. Pino as an authorized physician. Moreover, as ALJ Gartland’s order implies, the long delay in making a specific referral to Dr. Bach was a product of the respondents’ decision to seek review of the order of ALJ Martinez. (Finding of Fact 3). Neither was the ALJ required to conclude that Dr. Pino was not authorized simply because he preferred not to be the claimant’s “primary” treating physician. Rather, ALJ Gartland plausibly concluded that Dr. Pino made a referral precisely because he determined, in the exercise of his medical judgment, that the claimant needed more specialized treatment than he could provide.

IT IS THEREFORE ORDERED that the supplemental order of ALJ Martinez dated July 1, 1999, is affirmed.

IT IS FURTHER ORDERED that the order of ALJ Gartland dated December 8, 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 October 5, 2001 to the following parties:

Diane L. Garner, 440 County Road 232, #4, Durango, CO 81301

Yolanda Duran, Town of Ignacio, P. O. Box 459, Ignacio, CO 81137-0459

Colorado Intergovernmental Risk Sharing Agency, Marla Myers, CIRSA, 950 S. Cherry St., #800, Denver, CO 80222

Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)

Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)

BY: A. Pendroy

image_pdfimage_print