W.C. No. 4-277-896Industrial Claim Appeals Office.
June 30, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) dated February 24, 1997. The claimant contends that the ALJ erred in denying his request for medical treatment from Dr. Higginbotham. We disagree, and therefore, affirm.
The claimant sustained a compensable low back injury while working for Bridgestone/Firestone (employer). The employer did not tender the services of a physician, and therefore, the right of selection passed to the claimant, who selected Dr. Mark T. Larson, D.C. to treat the industrial injury. Between December 26, 1995 and May 14, 1996, the claimant was treated 47 times by Dr. Larson.
The claimant subsequently sought an order requiring the respondents to provide medical treatment from Dr. Higginbotham. The claimant argued that Dr. Higginbotham became an authorized treating physician as a result of a referral from Dr. Larson. Alternatively, the claimant requested permission from the ALJ to change physicians to Dr. Higginbotham.
The matter was presented to the ALJ on stipulated facts. Specifically, the parties agreed that some time after his last treatment from Dr. Larson, the claimant requested that Dr. Larson refer him to Dr. Higginbotham for further treatment. Pursuant to that request, Dr. Larson wrote to Dr. Higginbotham on July 22, 1996, and requested that Dr. Higginbotham “evaluate and treat” the claimant. Based upon the July 22 referral, the claimant’s attorney requested that the respondents authorize Dr. Higginbotham to treat the industrial injury. The respondents refused and directed the claimant to seek treatment from Emergicare.
The ALJ determined that § 8-42-101(3)(III), C.R.S. (1996 Cum. Supp.), creates a “limited authorization for non-Level I accredited chiropractors,” which has the effect of terminating a non-Level I accredited chiropractor’s legal authorization after 12 treatments. Consequently, the ALJ determined that as of July 22, 1996, Dr. Larson had no authority to refer the claimant to Dr. Higginbotham for treatment of the industrial injury. The ALJ further determined that the referral was not “valid” under Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Finally, the ALJ determined that the claimant did not make a proper showing to grant a change of physicians to Dr. Higginbotham. Therefore, the ALJ denied the claimant’s request for medical treatment from Dr. Higginbotham.
On review, the claimant contends that the ALJ misconstrued §8-42-101(3)(III). Therefore, the claimant argues that the ALJ erred in determining that Dr. Larson’s July 22 referral did not render Dr. Higginbotham an authorized treating physician. We do not determine whether the ALJ misconstrued § 8-42-101(3)(III) because the evidence supports a conclusion that the referral was not valid, and this conclusion supports the denial of benefits Cf. Baldwin Construction Inc., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA1362, March 6, 1997) (it is proper to affirm an order which reached the right result for wrong reason).
As argued by the claimant, treatment rendered as a result of a referral “in the normal progression of authorized treatment” is compensable. City of Durango v. Dunagan, ___ P.2d ___ (Colo.App. No. 96CA0973, May 1, 1997); Greager v. Industrial Commission supra. Furthermore, a referral requested by the claimant is not outside the “normal progression of treatment” if the referring physician “exercised independent judgment” in making the referral City of Durango v. Dunagan, supra.
The question of whether a referral was made in the “normal progression of authorized treatment” is a question of fact for the ALJ. City of Durango v. Dunagan, supra; Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Consequently, we are bound by the ALJ’s determination of this question if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Suetrack USA v. Industrial Claim Appeals Office, supra; Smith v. Aspen Skiing Company, W.C. No. 3-071-413, December 21, 1993.
Here, the ALJ determined that even if Dr. Larson was authorized to refer the claimant to another provider, the July 22, 1996 referral was not a “valid” referral. The ALJ found that the referral was made at a time when Dr. Larson was no longer treating the claimant. The ALJ also found that the referral was “essentially” the produce of a July 10, 1996 letter authored by the claimant’s counsel which the claimant delivered to Dr. Larson. Therefore, the ALJ determined that the referral was not made in the “normal progression of authorized treatment.”
Further, the medical record reveals that on December 26, 1995, Dr. Larson recommended that the claimant undergo a course of chiropractic care with treatment 3 times a week for 4 weeks, and an interim evaluation after 4 weeks. In a treatment note dated February 26, 1996, Dr. Larson recommended “continued care as outlined.”
However, the record does not contain any report between February 26, 1996 and July 22, 1996, in which Dr. Larson recommends further treatment. Further, the claimant does not dispute the ALJ’s finding that he did not treat with Dr. Larson after May 14, 1996.
Under these circumstances, the ALJ reasonably inferred that Dr. Larson’s July 22 “referral” was made in response to the request from claimant’s counsel, and was not a product of Dr. Larson’s independent judgment made in the normal course of treatment. See Gamboa v. ARA Group, Inc., W.C. No. 4-106-924, November 20, 1996; Tileston v. Swiss Pretzel Shops, Inc., W.C. No. 3-859-969, June 2, 1988. Therefore, we must uphold the ALJ’s finding that the July 22 referral was not a “valid” referral for purposes of authorizing Dr. Higginbotham.
Moreover, the claimant does not contest the ALJ’s determination that he did not establish a “proper showing” for a change of provider under § 8-43-404(5)(a), C.R.S. (1996 Cum. Supp.). Therefore, the ALJ’s findings support the denial of medical treatment from Dr. Higginbotham.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 24, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed June 30, 1997 to the following parties:
Robin L. Durrough, c/o Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3000
Bridgestone Firestone, Inc., 2560 Carmel Dr., Colorado Springs, CO 80910-1002
Lisa Fields, GCR Truck Tire Centers, Inc., 500 Capitol of Texas, Highway South, Building 4, Austin, TX 78746
Kim Bills, Gallagher Bassett Services, Inc., The Quorum West, 7935 E. Prentice Ave., Ste. 305, Englewood, CO 80111
Insurance Company of the State of Pennsylvania
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3000 (For the Claimant)
Karen Gail Treece Esq., Kathleen M. North, Esq., 400 S. Colorado Blvd., Ste. 700, Denver, CO 80222 (For the Respondents)
By: _______________________________