W.C. No. 4-268-820Industrial Claim Appeals Office.
December 4, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) insofar as the ALJ denied her request for certain medical benefits. We set aside the contested portion of the order, and remand the matter for entry of a new order.
The claimant suffered multiple injuries in an automobile accident arising out of and in the course of her employment. On her own, the claimant sought treatment from Dr. Ansusolo, who later referred the claimant to Dr. Hendry for treatment of a temporomandibular problem (TMJ).
The ALJ found that pursuant to § 8-43-404(5)(a), C.R.S. 1997, the respondents selected Dr. Ladwig to treat the injuries, and Dr. Ladwig later referred the claimant to Dr. Shih. Therefore, the ALJ determined that Dr. Ansusolo and Dr. Hendry are not authorized treating physicians.
Further, the ALJ determined that on August 14, 1996, Dr. Shih placed the claimant at maximum medical improvement (MMI) for all of the industrial injuries except the psychological and TMJ conditions. Under these circumstances, the ALJ determined that the claimant’s request for a change of provider to Dr. Kesten and authorization of Dr. Ansusolo and Dr. Hendry constitutes a “constructive challenge” to Dr. Shih’s MMI determination. Therefore, expressly relying upon Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the ALJ determined that in the absence of a Division-sponsored independent medical examination (IME) on the issue of MMI, he lacked jurisdiction to grant a change of provider. Consequently, the ALJ denied the claimant’s request for a change of provider to Dr. Kesten, and the request for an order requiring the respondents’ to pay for the treatment provided by Dr. Hendry and Dr. Ansusolo.
I.
On review, the claimant contends that the ALJ erroneously determined that a Division-sponsored IME is a prerequisite to granting a change of provider. Under the circumstances of this case, we agree.
Initially, we reject the respondents’ argument that the ALJ’s order is interlocutory and not subject to review. The ALJ’s order effectively precludes the claimant from obtaining an order on the merits of her claim for a change of provider unless and until she obtains an IME. Because we agree with the claimant that an IME is not a prerequisite to a change of providers in this case, the ALJ’s order is tantamount to a denial of medical benefits. Consequently, the order is properly before us for review. See Berumen v. Arapahoe County Social Services, W.C. No. 4-114-314 (February 23, 1995); Carreon v. Monfort, Inc., W.C. No. 4-140-621, (December 19, 1994).
Section 8-40-201(11.5), C.R.S. 1997, defines MMI as the point in time when:
“any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.”
Insofar as pertinent, § 8-42-107(8)(b)(I), C.R.S. 1997, provides that the initial determination of MMI is to be made by the treating physician, and that determination is binding unless the claimant undergoes an IME. Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). The statute further precludes the ALJ from determining whether the treating physician correctly determined MMI until an IME has been completed. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
Story v. Industrial Claim Appeals Office, supra, stands for the proposition that where the treating physician has determined MMI, and the claimant requests a change of provider for purposes of obtaining further medical treatment to attain MMI, the request is a “constructive challenge” to the treating physician’s MMI determination. Under these circumstances, an IME is a prerequisite to a hearing on whether the claimant is entitled to a change of provider to obtain further treatment to reach MMI. In other words, Story holds that the ALJ may not determine whether the claimant’s injury is “stable,” such that no further treatment to attain MMI is reasonable and necessary, in the absence of a Division-sponsored IME.
We have previously concluded that the condition or status of MMI is unified, and may not be divided between individual aspects of the claimant’s industrial injury. See Bernard v. Current, Inc., W.C. No. 4-213-664 (October 6, 1997); Ballinger v. City of Colorado Springs, W.C. No. 4-154-631 (October 7, 1996), set aside, City of Colorado Springs v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo App. No. 96CA1893, November 13, 1997). To the contrary MMI terminates the claimant’s entitlement to temporary disability benefits and triggers her right to permanent disability benefits. See Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995); Nunnally v. Wal-Mart Stores, Inc., 943 P.2d 26 (Colo.App. 1996). Where there are multiple components of the injury the claimant’s permanent disability cannot be ascertained until the claimant has reached MMI for each and every component of the injury. See Mountain City Meat Co. v. Oqueda, 919 P.2d 246 (Colo 1996) (where claimant suffers scheduled and non-scheduled injuries the scheduled injuries are to be compensated as impairment of the whole person in accordance with the AMA Guides).
Admittedly, the Court of Appeals set aside our order in th Ballinger case. However, that case involved a claim for additional temporary disability benefits after the claimant had already reached MMI. We understand the court to have ruled that if a claimant’s condition deteriorates after MMI, the claimant is not entitled to additional temporary disability benefits unless he proves that the deterioration caused an additional wage loss by creating new medical restrictions. However, Ballinger
is not authority for the proposition that MMI may, in the first instance, be divided among various aspects of a single industrial injury.
Because MMI is not divisible, Dr. Shih’s finding that the claimant is at MMI for all but two of the compensable components of the injury is legally insufficient to constitute a determination of MMI for purposes of triggering the IME provisions in § 8-42-107(8)(b). Accordingly, the facts of this claim are distinguishable from the circumstances in Story,
and the ALJ erred insofar as he denied the request for a change of physician on grounds that the claimant had not obtained a Division-sponsored IME to dispute Dr. Shih’s MMI determination. Therefore, we set aside the ALJ’s order and remand the matter to the ALJ for the entry of a new order concerning the claimant’s request for a change of provider.
In remanding the matter, we also note that the treating physician’s determination of MMI inherently includes a determination of the “cause” of the claimant’s condition, and that determination is binding in the absence of an IME Kaltenborn v. Industrial Claim Appeals Office, (Colo.App. No. 97CA0174, July 31, 1997) (not selected for publication) Mendonca v. Industrial Claim Appeals Office, (Colo.App. No. 96CA0736, December 12, 1996) (not selected for publication) Fields v. TAD Temporaries, W.C. No. 4-185-877 (September 7, 1995). However, as stated above, Dr. Shih’s opinions are legally insufficient to constitute a determination of MMI. Therefore, insofar as Dr. Shih’s reports may be interpreted as reflecting Dr. Shih’s opinion that the claimant’s problems in his right shoulder, leg, neck and left elbow are not the result of the auto accident, his opinion is not binding. Consequently, the ALJ erred in denying the request for a change of provider on grounds that Dr. Shih’s opinion compels a finding that the problems for which the claimant seeks additional treatment are not compensable.
In view of our remand, we do not consider the claimant’s remaining arguments on this issue. However, in remanding this matter we should not be understood as precluding the ALJ from finding that further treatment for some components of the industrial accident is not reasonably necessary because those components have stabilized to the point that no additional treatment will improve the claimant’s condition.
II.
On appeal, the claimant also concedes that the respondents designated a physician at the time of the injuries. However, the claimant contends that Dr. Hendry became an authorized treating physician as a result of the respondents’ failure to tender the services of a physician to treat his TMJ. We conclude that the ALJ’s findings of fact are insufficient to permit appellate review of the claimant’s argument, and therefore, we set aside the ALJ’s order which relieved the respondents of liability for Dr. Hendry’s treatment.
As argued by the claimant, the employer’s right to select the treating physician contemplates that the employer will designate a physician who is willing to treat the industrial injury. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, March 24, 1992, aff’d, Teledyne Waterpik v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication). Where the designated physician refuses to treat the claimant for non-medical reasons, the employer must select a new treating physician or the right of selection passes to the claimant. Ruybal v. University Health Sciences Center, supra; Tellez v. Teledyne Waterpik, supra; Martinez v. Central States Roofing Insulating Company, W.C. No. 4-228-090 (August 23, 1996).
Here, the claimant argued that Dr. Shih failed to treat her TMJ even though Dr. Shih agreed that the TMJ is causally connected to the industrial injury. (Tr. p. 7); Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) (where substance of argument raised before ALJ, argument preserved for review even if label used to describe argument not the same). Furthermore, the record contains some evidence which, if credited, might support the claimant’s argument. In a report dated June 18, 1996, Dr Shih opined that the claimant’s TMJ is causally related to the auto accident and recommended treatment including a splint and associated adjustments. However, Dr. Shih was unsure if the carrier would pay for the treatment and reported that he “will address this matter with her carrier.” As of August 14, 1996, when Dr. Shih discharged the claimant from treatment, he reported that “follow-up for her TMJ splint is still being disputed.”
The ALJ credited Dr. Shih’s opinion that the claimant suffered a compensable TMJ injury. (Finding of Fact 8). The ALJ also credited Dr. Shih’s opinion that the claimant needs “further” treatment for the TMJ, and thus, ordered the respondents to provide treatment for the TMJ injury. (Finding of Fact 6).
However, we are unable to ascertain from the ALJ’s findings whether he considered the claimant’s argument that the designated physicians refused to treat the TMJ. Therefore, on remand the ALJ must determine whether the right to select a physician to treat the TMJ injury passed to the claimant as a result of the respondents’ failure to designate a physician who was willing to treat the TMJ. Based upon that factual determination the ALJ shall enter a new order concerning the respondents’ liability for Dr. Hendry’s treatment.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 23, 1997, is set aside insofar as it denied a change of physician, and denied payment for Dr. Hendry’s treatment. The matter is remanded to the ALJ for entry of a new order on these issues which is consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Copies of this decision were mailed December 4, 1997 to the following parties:
Phyllis Sandoval, 3036 Gilpin St., #1, Denver, CO 80205
Denver Housing Authority, 1100 W. Colfax, #4305, Denver, CO 80204-2027
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Matthew W. Tills, Esq., 1225 17th St., 28th Flr., Denver, CO 80202 (For the Respondents)
Laurence J. Free, Esq., 1199 Bannock St., Denver, CO 80204 (For the Claimant)
BY: __________________________