W.C. No. 4-544-827.Industrial Claim Appeals Office.
September 26, 2005.
FINAL ORDER
The claimant seeks review of an order dated May 17, 2005, entered on remand by Administrative Law Judge Klein (ALJ). The order determined that Dr. Kukafka is an authorized treating physician (ATP), but denied authorization to treat with Dr. Maier because the claimant was referred to Dr. Maier after July 2, 2002, when the claimant was placed at maximum medical improvement (MMI). The claimant contends the ALJ exceeded his jurisdiction in finding the claimant reached MMI without the benefit of a Division-sponsored independent medical examination (DIME). We affirm.
In a prior order dated November 4, 2004, the ALJ determined the claimant suffered a compensable aggravation of his preexisting lung diseases from exposure to diesel exhaust between June 10 and June 13, 2002. The claimant’s preexisting lung diseases were treated by a personal physician, Dr. Kukafka. The claimant also had a prior industrial injury to his shoulder that was treated by the employer’s “designated treating physician,” Dr. Basow. The ALJ determined that neither Dr. Kukafka nor Dr. Maier were authorized treating physicians for the compensable aggravation. The claimant timely appealed.
On appeal, we set aside the ALJ’s order concerning the authorization of Dr. Kukafka and Dr. Maier, and remanded the matter to the ALJ for additional findings and the entry of a new order on that issue.
On remand, the ALJ made the following findings concerning the issue of authorization. The claimant complained to his supervisor about the air quality in the facility on June 12, 2002. On June 13, the claimant reported to work with a cough and “did not appear to be doing well.” In the afternoon, the claimant became very ill and asked the supervisor if he could go to the “workers’ compensation doctor.” The supervisor denied the request and told the claimant to see his personal physician because the supervisor believed the claimant’s “breathing problems” were caused by the preexisting disease.
Despite the supervisor’s instructions, the claimant asked a coworker to take him to Dr. Basow’s office. Because Dr. Basow was not in the office, the claimant was examined by Dr. Basow’s nurse practitioner, nurse Starks. Nurse Starks determined that the claimant needed emergency treatment and called an ambulance to take him to the hospital. Nurse Starks also recommended the claimant “follow up with his pulmonary specialist after being discharged from the Emergency Department.” Another physician in Dr. Basow’s office reviewed and approved Nurse Starks’ recommendations.
The claimant then went to Dr. Kukafka on June 14, 2002 for treatment of his breathing problems. On July 27, Dr. Kukafka referred the claimant to National Jewish Center where he was ultimately treated by Dr. Maier. Meanwhile, on July 2, 2002, Dr. Basow stated that, although the claimant had not returned to his “pulmonary symptomatic baseline,” the claimant’s continuing problems were attributable to a “worsening” of the preexisting pulmonary disease and not the temporary exacerbation caused by exposure to exhaust fumes at work. Accordingly, Dr. Basow released the claimant from treatment for the pulmonary condition and placed the claimant at MMI.
Based on these findings, the ALJ determined that Dr. Kukafka is an ATP. However, the ALJ determined Dr. Maier was not an ATP. In support, the ALJ found the claimant “returned to his pre-aggravation baseline” on July 2, 2002 and “certainly no later than July 17, 2002,” and therefore, Dr. Kukafka’s referral to Dr. Maier occurred after the claimant had been placed at MMI by Dr. Basow.
I.
In requesting review of the May 17 order, the claimant renews his contention that the ALJ exceeded his jurisdiction in finding the claimant reached MMI on July 2, 2002. We previously rejected this argument and the claimant’s further arguments are not persuasive.
Under § 8-42-101(1)(a), C.R.S. 2005, employers are liable for authorized and emergency medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). The obligation to pay the costs of authorized medical treatment ends at MMI unless an ALJ determines that future medical treatment will be reasonable and necessary to relieve the effects of the industrial injury or prevent a deterioration of the claimant’s condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
Pursuant to § 8-42-107(8)(b)(I), C.R.S. 2005, an ATP shall make the initial determination concerning the date of MMI. Once an ATP makes a determination of MMI, the termination of medical care is triggered and the ALJ lacks jurisdiction to conduct a hearing concerning the accuracy of the ATP’s determination until a DIME is conducted. Section 8-42-107(8)(b)(III), C.R.S. 2005; Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). However, the DIME procedures do not apply to a factual dispute concerning whether a physician is an ATP, or whether a particular ATP has placed the claimant at MMI. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
The primary issue before the ALJ was whether the claimant suffered a compensable injury, and the parties essentially agreed that the claimant’s duty to request a DIME had not yet been triggered (Tr. p. 7). Accordingly, it is premature to consider whether Dr. Basow’s finding of MMI is correct.
Nevertheless, the respondents raised the issue of “authorized provider” in its response to the application for hearing, and whether Dr. Basow, in placing the claimant at MMI, was acting as an ATP (Tr. p. 7). Consequently, the ALJ had jurisdiction to resolve this issue without the claimant having undergone a DIME.
II.
The claimant next contends the ALJ erroneously relied on Dr. Basow’s finding of MMI in determining Dr. Maier is not an authorized treating physician. We perceive no reversible error.
“Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). If an authorized provider refers a claimant to another provider in the ordinary course of medical treatment, the provider to whom the claimant was referred is considered authorized. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). The question of whether such a referral has been made is usually one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Here, the ALJ did not find Dr. Kukafka referred the claimant to the National Jewish Hospital for treatment. Instead, the ALJ found Dr. Kukafka referred the claimant to National Jewish for a “second opinion.” (Finding of Fact 16). The ALJ’s finding is supported by substantial evidence in the record (see Consolidated Hearing Exhibit Packet, § F), and therefore, must be upheld on review. Section 8-43-301(8), C.R.S. 2005. Furthermore, the ALJ’s finding supports the conclusion that the referral to Dr. Maier was limited and not intended to authorize Dr. Maier to become a treating physician. Therefore, the ALJ did not err in finding Dr. Maier is not an authorized treating physician.
Under these circumstances, we need not consider the claimant’s argument that the ALJ erroneously found that Dr. Maier was not authorized because the referral from Dr. Kukafka to Dr. Maier occurred after Dr. Basow placed the claimant at MMI. See Baldwin Construction Inc., v. Industrial Claim Appeals Office, 937 P.2d 895 (Colo.App. 1997); Sears v. Penrose Hospital, 942 P.2d 1345 (Colo.App. 1997) (Panel may affirm ALJ’s order when right result reached even if for wrong reason).
Finally, we note the respondents’ contention that the ALJ erroneously found Dr. Kukafka is an ATP based on the referral by Nurse Starks, and that Dr. Kukafka exceeded the scope of any referral by referring the claimant to yet another physician. However, the respondents did not appeal the May 17 order. Consequently, they failed to preserve this argument for appellate review. See Davila v. Merit System Council, 15 P.3d 781 (Colo. App. 2000); cf. Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 17, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Dona Halsey
Richard Haakinson, Fort Collins, CO, Jim Wilson, Loomis Fargo
Company, Denver, CO, Inge Feagin, Loomis Fargo Company, Houston, TX, Pacific Employers Insurance Co., c/o Evy Radmacher, ACE/ESIS, Inc., Portland, OR, Joseph M. Goldhammer, Esq., Denver, CO, (For Claimant).
Kathleen M. Fairbanks, Esq. and William L. McCaslin, Esq., Denver, CO, (For Respondents).