W.C. No. 4-226-236Industrial Claim Appeals Office.
April 29, 1998
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which determined the date of maximum medical improvement (MMI), and found a “zero percent medical impairment rating.” We set the order aside and remand for entry of a new order.
The central issue in the case concerns the identity of the claimant’s “authorized treating physician” for purposes of former § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [subsequently amended for determinations of MMI on or after July 1, 1996]. In this regard, the ALJ found that the claimant sustained a compensable back injury on September 15, 1994. The initial authorized treating physician was Dr. Vandergon, D.C. On October 31, 1994, Dr. Vandergon referred the claimant to Dr. Donner for “examination and treatment.” Dr. Donner examined the claimant on November 15, 1994, and prescribed analgesics and a “steroid injection under fluoroscopy.” Apparently, the injection was performed on November 23, 1994. However, Dr. Donner did not see the claimant again until November 1995.
In April 1995, Dr. Vandergon referred the claimant to CHAMPS, Inc., and Dr. Wunder. Dr. Vandergon testified, and the ALJ found, that this referral was for “evaluation” only. (Vandergon depo. p. 13). Dr. Vandergon also testified that the referral to CHAMPS was at the request of the respondent-insurer (CCIA), and that he did not ordinarily refer patients to CHAMPS because “most of the patients I get back have complaints.” (Vandergon depo. p. 7).
Nevertheless, the ALJ found that Dr. Wunder saw the claimant “several times” between April 25, 1995 and September 6, 1995. The ALJ also stated that the claimant “attended appointments” with the physicians to whom Dr. Wunder referred him.
Ultimately, Dr. Wunder placed the claimant at MMI on September 6, 1995, and opined that he has no medical impairment attributable to the 1994 injury. The claimant sought a Division-sponsored independent medical examination (IME). The IME physician agreed with Dr. Wunder concerning the date of MMI, and also opined that there is no medical impairment.
Under these circumstances, the ALJ determined that Dr. Wunder and Dr. Donner were both “authorized” to treat the claimant, but Dr. Wunder was the “authorized treating physician providing primary care.” Consequently, the ALJ concluded that the claimant reached MMI on September 25, 1994. Further, the ALJ found that the claimant failed to overcome by clear and convincing evidence the IME physician’s opinion concerning the absence of medical impairment.
On review, the claimant contends the ALJ erred in determining that Dr. Wunder was an “authorized” treating physician for purposes of determining MMI under § 8-42-107(8)(b), and terminating temporary disability benefits. The claimant argues that Dr. Vandergon made a “limited referral” to Dr. Wunder, and that this referral did not authorize Dr. Wunder to treat the claimant. Further, the claimant argues that the CCIA had no power to expand the scope of Dr. Wunder’s authorization simply by paying his medical bills. We conclude the ALJ’s findings of fact are insufficient to support appellate review, and therefore, remand for entry of a new order.
Under the law applicable to this claim, only the “authorized treating physician who has provided the primary care” may determine when the claimant reaches MMI. Section 8-42-107(8)(b). A finding of MMI by the authorized treating physician is a prerequisite to either party seeking an IME evaluation pursuant to § 8-42-107(8)(b). Aren Design, Inc. v. Becerra, 897 P.2d 902
(Colo.App. 1995).
“Authorization” refers to a medical care provider’s legal authority to treat the claimant. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). An authorized provider includes any physician to whom the claimant is referred in “the normal progression of authorized treatment.” Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). The existence of such a referral is generally a question of fact. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854
(Colo.App. 1995). However, we have previously held that an authorized treating physician may limit the scope of a referral so as to retain the ultimate authority over the administration of the claimant’s medical care. E.g. Gamboa v. ARA Group, Inc., W.C. No. 4-106-924
(November 20, 1996). Moreover, it is the independent medical judgment of an authorized treating physician, not the desires of the insurer, which determines whether, and to what extent, additional providers shall be authorized to treat the claimant. See City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997); Reeves v. King Soopers, Inc., W.C. No. 3-910-182
(September 21, 1992) (insurer has no independent authority to limit the scope of referral by authorized physician).
Here, we are unable to ascertain the basis of the ALJ’s conclusion that Dr. Wunder was an “authorized treating physician” for purposes of § 8-42-107(8)(b). The mere fact that Dr. Wunder “actively treated” the claimant does not establish that he was an authorized treating physician. And, the ALJ made no other findings of fact or conclusions of law explaining how Dr. Vandergon’s limited referral “for evaluation” constituted a referral for “treatment” in the “normal progression of medical care.” In fact, such a finding appears to be directly contrary to Dr. Vandergon’s testimony that he did not, in the exercise of his independent medical judgment, intend to authorize treatment by Dr. Wunder.
Although not expressly stated, the ALJ may have concluded that the claimant’s cooperation with Dr. Wunder constituted a legal waiver of his right to object to Dr. Wunder as an authorized physician for purposes of determining MMI. However, waiver exists only where there is a voluntary, knowing and intelligent surrender of a known legal right. Although a waiver may be implied from conduct, it must occur with full knowledge of all the relevant facts. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988).
The ALJ’s finding that the claimant cooperated with Dr. Wunder is insufficient, standing alone, to support a finding of waiver. We note that § 8-43-404, C.R.S. 1997, contains provisions requiring claimants to cooperate with medical examinations, and subjecting them to penalties for non-cooperation. Where, as here, the authorized treating physician refers the claimant for an “evaluation” by another physician, we do not believe the claimant’s mere attendance and cooperation with the evaluation can be construed as a waiver of the right to contest the identity of the authorized treating physician.
In reaching this result, we do not mean to suggest that a waiver may never occur. Certainly, a claimant’s express or implied agreement with the insurer to treat an otherwise unauthorized physician as authorized, with full knowledge of the consequences, could constitute a waiver. We merely hold that the ALJ’s findings of fact, as they currently stand, are insufficient to support such a finding.
On remand, the ALJ shall make additional findings sufficient to support a determination of whether Dr. Wunder was an “authorized treating physician.” Specifically, the ALJ shall make explicit findings of fact concerning whether or not Dr. Vandergon’s “referral” to Dr. Wunder constituted an authorization for Dr. Wunder to treat the claimant in the “normal progression of authorized treatment.” If the ALJ finds that the referral was insufficient to authorize Dr. Wunder, he shall make specific findings of fact concerning whether or not the claimant’s participation in Dr. Wunder’s examinations and “treatment” constituted a waiver of the right to object to Dr. Wunder as an authorized treating physician for purposes of § 8-42-107(8)(b).
In light of this disposition, it is premature to consider the claimant’s argument that he was denied the opportunity to overcome by clear and convincing evidence the impairment rating of the Division IME physician. Resolution of this issue may become unnecessary if the ALJ should determine that Dr. Wunder was not an authorized treating physician for purposes of determining MMI.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 18, 1997, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
Copies of this decision were mailed April 29, 1998 to the following parties:
Stanley F. Benien, 2205 37th St., Evans, CO 80620
Color Star Growers of Colorado, 11610 Weld County Rd. 14 ~, Ft. Lupton, CO 80621-3310
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Britton Morrell, Esq., 710 11th Ave., Ste. L-10, Greeley, CO 80631 (For the Claimant)
By: __________________________________________________