IN THE MATTER OF THE CLAIM OF DARRELL JONES, Claimant, v. LOUISIANA PACIFIC CORPORATION, Employer, and SELF-INSURED, Insurer, Respondent.

W.C. No. 4-340-626Industrial Claim Appeals Office.
June 2, 1998

FINAL ORDER

The respondent, Louisiana Pacific Corp. (LP), seeks review of a final order of Administrative Law Judge Martinez (ALJ), which required LP to pay for the claimant’s medical evaluation at National Jewish Hospital (NJH). We affirm.

The ALJ found that the claimant developed occupational asthma arising out of his employment with LP. LP selected Dr. Bennett as the treating physician, and Dr. Bennett referred the claimant to Dr. Scott, an asthma specialist.

On or about June 25, 1997, Dr. Scott referred the claimant to NJH for a “second opinion.” In his June 25 progress note, Dr. Scott noted that the claimant’s attorney “recommended” a referral to NJH. Further, Dr. Scott also stated that he spoke “at length” with a registered nurse at NJH concerning whether the claimant should be seen by an occupational medicine specialist or the adult allergy service. It was agreed the nurse would “make some phone calls” and advise the claimant who to see at NJH. Dr. Scott’s note also contains the following paragraph:

“Apparently, Worker’s Compensation and an attorney are involved. They have asked that he go to National Jewish for a second opinion, which I think is an excellent idea.”

At the hearing, the claimant testified that he understood two factors caused Dr. Scott to refer him to NJH. First, Dr. Scott was not Level II accredited. Second, a methacholine challenge could not be performed in Dr. Scott’s office. (Tr. p 17).

Under these circumstances, the ALJ found that Dr. Scott “exercised independent judgment regarding the advisability of a second opinion” when referring the claimant to NJH. Consequently, the ALJ determined that the referral occurred in the normal progression of authorized treatment, and concluded that LP is liable for the evaluation at NJH. The ALJ stated that he reached this result “notwithstanding any confusion or conflict in the evidence regarding the desirability of a methacholine challenge test.”

I.
On review, LP contends the ALJ’s conclusion that Dr. Scott’s referral to NJH occurred in the normal progression of authorized is treatment is not supported by “substantial competent evidence.” LP reasons the referral to NJH was manipulated by the claimant’s attorney for the purpose of obtaining an advantage in the pending litigation. In support of this proposition LP argues that examination by a Level II physician was premature because the claimant was not at maximum medical improvement. Further, LP asserts no valid medical reasons for the referral existed because Dr. Scott left the decision of who the claimant should see to a nurse, and because he was of the opinion that a methacholine challenge was unnecessary. We are not persuaded by these arguments.

Treatment rendered as a result of a referral in the normal progression of authorized treatment is compensable. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). The question of whether a valid referral occurred is one of fact for determination by the ALJ. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). The critical question is whether the authorized physician who made the referral exercised independent medical judgment regarding the advisability of the referral. The mere fact the claimant requested the referral does not necessarily establish the referral occurred outside the normal progression of authorized treatment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).

Because the question of whether Dr. Scott’s referral to NJH occurred in the normal progression of authorized treatment is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard of review requires that we defer to the ALJ’s assessment of the credibility of the witnesses, the weight of the evidence, and the inferences to be drawn therefrom. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). The fact that the evidence might have supported other findings and conclusions affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).

LP’s argument notwithstanding, the record contains substantial evidence to support the ALJ’s finding that Dr. Scott referred the claimant to NJH in the normal progression of authorized treatment. First, Dr. Scott explicitly stated that referral to NJH was an “excellent idea.” Further, Dr. Scott spoke at length with a representative of NJH concerning the nature of the proposed examination. Taken together, these facts support the inference that Dr. Scott believed, for medical reasons, the claimant’s condition warranted examination by a second party, and Dr. Scott participated in determining the focus of the examination.

Moreover, the record suggests medical reasons for the referral. First, the NJH report contains a specific recommendation pertaining to the claimant’s medication. Further, LP’s own expert opined the claimant does not have occupational asthma. Under such circumstances, it is possible Dr. Scott made the referral to confirm his own diagnosis and obtain another opinion concerning appropriate treatment of the claimant.

It is certainly true the factual matters cited by LP could have led to contrary findings and conclusions. However, the mere fact that the idea for the referral originated with the claimant, or the claimant’s attorney, is not decisive in determining whether Dr. Scott exercised independent medical judgment. City of Durango v. Dunagan, supra. Moreover, while the claimant’s understanding of the reasons for the referral was relevant to the issue of Dr. Scott’s motivation, it certainly was not determinative. Therefore, the fact the claimant erroneously believed that Dr. Scott’s referral was based on the need for a methacholine challenge was not dispositive.

II.
LP next contends the ALJ erred in denying its post-hearing motion to reopen the case for the presentation of additional evidence. Approximately two weeks after the December 8, 1997 hearing, LP filed a motion to reopen the record for purposes of presenting “newly discovered” documentary evidence. Specifically, LP requested to present a report of Dr. Scott, dated December 18, 1997, in which Dr. Scott stated that he never changed his opinion, first expressed on March 5, 1997, that a methacholine challenge was not necessary. On January 6, 1998, the ALJ denied the motion without making specific findings of fact or conclusions of law. The ALJ subsequently entered the formal findings of fact and conclusions of law on January 13, 1998.

LP asserts the ALJ abused his discretion in denying its motion to reopen because Dr. Scott’s December 18 report proves the claimant committed perjury and fraud when he testified that Dr. Scott’s referral was for purposes of obtaining a methacholine challenge. Moreover, LP argues that the ALJ’s summary denial of the motion gives insufficient guidance as to the ALJ’s rationale. We find no error.

An ALJ has legal authority to set a matter for further hearing after the apparent conclusion of the evidentiary proceedings. Section 8-43-207(1)(j), C.R.S. 1997; §8-43-301(5), C.R.S. 1997. However, the decision to grant a further hearing for the purpose of taking additional evidence is discretionary with the ALJ. IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). In exercising this discretion, the ALJ may consider various factors including whether or not the evidence could be outcome determinative, and whether it might have been discovered before the hearing through the exercise of due diligence. Aspen Skiing Company v. Peer, 804 P.2d 166 (Colo. 1991); Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983).

Here, it is apparent from the ALJ’s final order of January 13, 1996, that he did not believe the issue surrounding the need for a methacholine challenge was determinative of whether Dr. Scott’s referral to NJH was part of the ordinary progression of medical treatment. To the contrary, the ALJ expressly disavowed the centrality of this issue in Finding of Fact 7. Consequently, it is apparent that the evidence which LP sought to introduce pursuant to its motion would not have changed the result, even if the ALJ had credited it.

Moreover, we see no basis for concluding this evidence was undiscoverable prior to the hearing. LP was aware of the issue, and could have deposed Dr. Scott or obtained the report in time for the hearing. It did neither.

Finally, the record provides an adequate basis for ascertaining the reasons why the ALJ denied the motion to present additional evidence. The motion was denied prior to the ALJ’s final order, the final order itself reveals the basis of the ALJ’s decision not to reopen the case.

IT IS THEREFORE ORDERED that the ALJ’s order dated January 13, 1998, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre

NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.

Copies of this decision were mailed June 2, 1998 to the following parties:

Darrell Jones, 1011 S. 12th, Montrose, CO 81401

Louisiana Pacific Corp., P.O. Box 1269, Montrose, CO 81402-1269

Louisiana Pacific Corp., P.O. Box 4000-98, Northern Division, Hayden Lake, ID 83835

Starr Kelso, Esq., P.O. Box 1312, Coeur d’Alene, ID 83814-1312 (For the Respondents)

Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)

By: __________________________________________________