W.C. No. 4-106-924Industrial Claim Appeals Office.
November 20, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ), which denied her claim for temporary total disability benefits commencing February 12, 1993, and denied her request for medical treatment provided by Dr. Parry. We affirm.
The ALJ found that, on July 9, 1991, the claimant sustained a compensable injury to her left shoulder while cleaning a shower curtain. The claimant’s treating physician, Dr. Hughes, diagnosed a shoulder sprain and thoracic muscular spasm. However, on August 7, 1991, Dr. Hughes opined that the claimant’s left shoulder sprain had resolved, that the claimant had reached maximum medical improvement (MMI), and that she could return to regular employment.
The ALJ found that the claimant was next employed as a certified nursing assistant (CNA), commencing in January 1992, with Cornerstone Care Center (Cornerstone). At the time the claimant applied for this job she represented that she had no injuries or physical problems which precluded her from safely performing the duties of the employment. The claimant remained in this job through January 29, 1993, and testified that she performed all of the necessary duties. It is apparent from the record that many of these duties involved the lifting of patients as well as other physical activities.
The claimant testified that after Dr. Hughes’ determination of MMI she continued to experience neck and shoulder pain throughout the Cornerstone employment, and sometimes suffered numbness on the entire left side of her body. Consequently, she requested a Division-sponsored independent medical examination (IME). In a report dated August 25, 1992, the IME physician, Dr. Ochsner, opined that the claimant had not reached MMI. Dr. Ochsner stated that the claimant suffered a “cervical sprain” which was related to the industrial injury.
Thereafter, the claimant came under the care of Dr. Brugman, who was apparently authorized by the respondents. In a report dated December 30, 1992, Dr. Brugman stated that he could not identify “any objective findings to corroborate her discomfort,” and referred the claimant to Dr. London for further treatment.
Dr. London treated the claimant from January 1993 to March 1994. He opined that the claimant should be restricted from employment due to possible fibromyalgia syndrome and lumbar strain caused by the industrial injury.
In a report of May 28, 1994, Dr. London also recommended that the claimant seek a “second neurologic opinion.” The claimant, based upon the recommendation of her lawyer, selected Dr. Parry to render the second opinion. Dr. Parry prescribed additional treatment described as “scapular stabilization,” and opined that the claimant was not at MMI.
Under these circumstances, the ALJ concluded that the claimant was not entitled to temporary total disability benefits commencing February 12, 1993, when her employment at Cornerstone was terminated. The ALJ’s conclusion was based upon his determination that the respondents overcame Dr. Ochsner’s opinion of MMI by clear and convincing evidence. Based upon the opinions of Dr. Hughes, the ALJ found that the claimant’s right to receive temporary total disability benefits terminated on August 7, 1991 when the claimant was placed at MMI by Dr. Hughes, and Dr. Hughes released the claimant to regular employment. The ALJ also found that the claimant commenced “regular employment” in January 1992 when she went to work at Cornerstone, and did not report any problems performing that employment. Further, the ALJ denied the request for treatment by Dr. Parry because he found it was unauthorized, unnecessary, and unrelated to the industrial injury. However, the
ALJ ordered the respondents to pay for the single visit to Dr. Parry which was recommended by Dr. London.
I.
On review, the claimant first contends that the ALJ erred in determining that she reached MMI on August 7, 1991. The claimant contends that the respondents did not raise the issue of MMI at the hearing, and in fact stipulated that the claimant was not at MMI. In support, the claimant points out that respondents’ counsel stated, at the commencement of the hearing, that “we are not here litigating, quote, MMI or not MMI.” (Tr. p. 10). The claimant further contends that the respondents waived the issue of MMI by failing to admit liability or contest Dr. Ochsner’s IME in accordance with Rule of Procedure IV(N)(4)(c), 7 Code Colo. Reg. 1101-3 at 7, and by agreeing to authorize Dr. Brugman as a treating physician. We are not persuaded.
It is certainly true that parties are entitled to fair notice of the issues and evidence to be considered by the ALJ Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076
(Colo.App. 1990). However, it is equally true that parties may, by their conduct, consent to the trial of an issue without prior notice. This is true where the record reflects that, without objection, evidence was admitted concerning the issue, and the parties were afforded a fair opportunity to confront adverse evidence, present their own evidence, and make argument See Robbolino v. Fischer-White Contractors, 738 P.2d 70
(Colo.App. 1987).
Pursuant to § 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.), and the statute currently codified at § 8-42-107(8)(b)(II), C.R.S. (1996 Cum. Supp.), temporary total disability benefits cease when the authorized treating physician opines that the claimant has reached MMI. If a party disputes the authorized treating physician’s determination of MMI, the issue may be submitted for evaluation by a Division-sponsored IME. The opinion of the Division IME is binding unless overcome by clear and convincing evidence. See Blue Mesa Forest v. Lopez, ___ P.2d ___ (Colo.App. No. 96CA0436, October 24, 1996). The question of whether the opinion of the Division IME has been overcome by clear and convincing evidence is one of fact for resolution by the ALJ. Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995).
Considering this state of the law, the record demonstrates that the claimant consented to try the MMI issue. First, the claimant was seeking temporary total disability benefits. The parties submitted into evidence medical records of Dr. Hughes which contain his opinion that the claimant had reached MMI on August 7, 1991. Other medical records and depositions address the accuracy of Dr. Hughes’ opinion. Thus, the parties fully addressed the issue of MMI.
Further, we have reviewed that portion of the transcript where respondents’ counsel stated that the respondents were not litigating “MMI or not MMI.” (Tr. p. 10). However, that statement, when considered in context, indicates that counsel was not addressing the issue of temporary total disability benefits, but whether respondents are liable for Dr. Parry’s treatment. (Tr. pp. 8-10). Moreover, after the conclusion of the evidence, the respondents submitted a position statement in which they expressly argued that the claimant reached MMI on August 7, 1991. The claimant in no way indicated to the ALJ that this argument was improper. Therefore, the claimant’s waiver argument has itself been waived. Lewis v. Scientific Supply Co., Inc., 897 P.2d 905 (Colo.App. 1995).
Neither are we persuaded that the respondents’ failure to admit liability or request a hearing to contest the IME, or their willingness to provide additional medical treatment proves that the claimant was denied due process. The respondents’ failure timely to contest the IME must be considered against all the other factors in the case. It is not clear that the respondents’ failure to file an admission of liability or request a hearing to contest the IME report signified their agreement with the IME’s determination of MMI. In this case the claimant was working at the time of the IME report, and it is not evident that, in order to be “consistent with” Dr. Ochsner’s finding of MMI, the respondents were obliged to “admit liability” for any specific benefits, or contest a determination which had no immediate consequence. Moreover, the respondents’ willingness to provide additional medical treatment is not necessarily inconsistent with their argument that the claimant reached MMI in August 1991. This is true because claimants may be entitled to ongoing medical treatment after MMI in order to maintain their condition or relieve symptoms of the injury. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Otherwise, we have reviewed the record and conclude that the ALJ’s finding that Dr. Ochsner’s IME opinion was overcome by clear and convincing evidence is supported by the record. First, Dr. Hughes’ August 7, 1991 report fully supports that conclusion. The mere fact that he subsequently prescribed additional treatment is not necessarily inconsistent with the finding of MMI, especially since he did not explicitly retract that opinion in his February 4, 1992 report. Story v. Industrial Claim Appeals Office, supra.Moreover, the ALJ’s conclusion is supported by the claimant’s ability to perform heavy work as a CNA, and medical records indicating that there were few if any objective findings to support the conclusion that the claimant suffered from ongoing effects of the 1991 injury. The mere fact that the record might have supported contrary findings and conclusions is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
II.
The claimant next contends that the ALJ erred in finding the claimant was released to regular employment on August 7, 1991. The claimant argues that, by January 1993, the claimant’s “attending physician” was Dr. London, and therefore, the ALJ was bound to accept Dr. London’s opinion that the claimant was restricted. We are not persuaded.
Section 8-42-105(3)(c) provides that temporary total disability ceases when the “attending physician gives the employee a written release to return to regular employment.” It is true that the ALJ is not free to substitute his judgment for that of the attending physician concerning the claimant’s ability to perform regular employment. Burns v. Robinson Dairy Inc., 911 P.2d 661 (Colo.App. 1995). However, if the claimant has multiple attending physicians, the ALJ may resolve such conflicts as a matter of fact. Burns v. Robinson Dairy, Inc., supra; see also, Blue Mesa Forest v. Lopez, supra.
Here, it was apparent that the ALJ recognized a conflict between “attending physicians” concerning the claimant’s ability to perform regular employment. The mere fact that Dr. Hughes was no longer the attending physician in 1993 does not diminish his status as the attending physician in 1991, nor does it alter the force of his opinion that the claimant was able to return to regular employment as of August 7, 1991. As the respondents point out, the record contains no evidence that Dr. Hughes ever retracted his opinion. Further, as the ALJ found, there is no evidence that Dr. Brugman restricted the claimant prior to the time Dr. London took over the case.
Under these circumstances, the ALJ was in no way “bound” by Dr. London’s opinion that the claimant was unable to perform regular employment as a result of the industrial injury. Rather, the ALJ was free to resolve the conflict between Dr. Hughes and Dr. London, and we may not substitute our judgment for his concerning the weight and credibility of the expert medical evidence. Postlewait v. Midwest Barricade, supra.
Moreover, we find no error in the ALJ’s factual finding that, “even Dr. London indicated claimant could return to full duty work beginning April 1, 1993.” To the contrary, the ALJ was correctly pointing out that, in a report dated March 8, 1993, Dr. London stated that the claimant would “return to full-time duty at work in about two-and-a-half weeks.” The ALJ was merely indicating that Dr. London’s reports were inconsistent, and entitled to less weight then they might otherwise have been accorded.
III.
The claimant also argues that the ALJ erred in determining that she was “at fault” for her separation from employment as a CNA, and that the separation disqualified her from the receipt of temporary total disability benefits. However, we need not address this issue in light of our determination that the claimant was released to regular employment and had reached MMI prior to the separation from employment. In other words, the claimant’s temporary benefits had already been lawfully terminated at the time of separation. Similarly, we need not consider whether the claimant’s work as a CNA constituted a return to regular employment.
IV.
Claimant next contends that the ALJ erred in determining that Dr. Parry was not an authorized treating physician. Specifically, the claimant argues that the ALJ’s finding that Dr. London did not refer the claimant to Dr. Parry for more than a single evaluation is unsupported by the evidence. We are not persuaded.
It is certainly true that a medical provider may become authorized if another authorized physician refers the claimant for services in the ordinary course of medical treatment Greager v. Industrial Commission, 701 P.2d 168
(Colo.App. 1985). However, we have previously held that an authorized treating physician may limit the scope of a referral and retain ultimate authority over the administration of the claimant’s medical care. E.g. Reeves v. King Soopers, Inc., W.C. No. 3-910-182, September 21, 1992; Smith v. Denver Public Schools, W.C. No. 3-861-421, March 6, 1992. Determination of the existence and scope of a referral is generally a question of fact for the ALJ. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
The claimant’s arguments notwithstanding, the record supports the ALJ’s determination that Dr. London referred the claimant to Dr. Parry for a single evaluation, not continuing treatment. On May 28, 1994, Dr. London stated that he”asked the [claimant] to seek a second neurologic opinion and she has decided to see Dr. Lynn Parry to have this accomplished.” On August 19, 1994, Dr. London stated that he was “hopeful that [the claimant] will be evaluated or has been evaluated once again and wish her the best in regards to an intervention that might sufficiently alleviate her symptoms.” On November 2, 1994, Dr. London stated that Dr. Parry seemed “to have found a new abnormality” and he wished the claimant “the best in regards to her physical therapy and I am hopeful that Dr. Parry may have come across something that will make a real impact upon her quality of life.” Finally, in a report dated November 30, 1994, Dr. London stated that he did believe “scapular stabilization,” as recommended by Dr. Parry, was necessary.
Under these circumstances, there is substantial evidence to support the ALJ’s conclusion that Dr. Parry’s purposed treatment was not the result of a bona fide referral from Dr. London. Clearly, Dr. London’s initial referral was for the purpose of a single evaluation, and the selection of Dr. Parry came at the recommendation of the claimant’s attorney. Further, Dr. London’s subsequent reports indicate that, although he was “hopeful” that the claimant might improve, he did not believe that the treatment proposed by Dr. Parry would be effective. Therefore, it was plausible for the ALJ to infer that Dr. London was not endorsing Dr. Parry’s treatment by referring the claimant for such treatment.
The claimant’s final argument is that the ALJ’s determinations that Dr. Parry’s treatment is not reasonable and necessary, or related to the injury, constitute an impermissible infringement on the authorized treating physician’s authority to determine MMI. However, as we have already pointed out, the ALJ determined that the IME physician’s opinion concerning MMI was overcome by clear and convincing evidence. In so doing, the ALJ considered Dr. Parry’s opinions. Thus, the ALJ acted fully within his authority in evaluating the MMI question, and in rejecting Dr. Parry’s opinion. Since the ALJ was persuaded by evidence that the claimant was at MMI in August 1991, he need not have concluded that the treatments proposed by Dr. Parry were reasonable and necessary, or related to the industrial injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 30, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify orvacate the Order is commenced in the Colorado Court of Appeals, 2East 14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum.Supp.).
Copies of this decision were mailed November 20, 1996
to the following parties:
Lorena Gamboa, 1600 Vance, #14, Lakewood, CO 80215
ARA Group, Inc., 1011 Market St., Philadelphia, PA 19107-2934 % Reliance Ins. Co., Alexsis, Attn: Cathy Hyland, One Park Central Bldg., Ste. 410, 1515 Arapahoe St., Denver, CO 80202-2117
Erica West, Esq., 1017 S. Gaylord St., Denver, CO 80209 (For the Claimant)
Richard Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For the Respondents)
By: _____________________________________________