IN THE MATTER OF THE CLAIM OF CHARLOTTE ZOLMAN, Claimant, v. HORIZON HOME CARE, LLC, Employer, and PINNACOL ASSURANCE, Insurer, Respondents.

W.C. No. 4-636-044.Industrial Claim Appeals Office.
November 3, 2010.

ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge (ALJ) Krumreich dated May 12, 2010, that denied the claimant’s request for epidural steroid injections, and denied the claimant’s request for change of physicians to Dr. Yamamoto. We affirm the ALJ’s determination that Dr. Yamamoto is not presently an authorized treating physician (ATP), but set aside the remaining portions of his order and remand this matter for further proceedings.

The claimant sustained a compensable injury to her low back on December 3, 2004. Dr. Danahey became the authorized treating physician. Dr. Danahey subsequently referred the claimant to Dr. Reiss and Dr. Primack for treatment. Dr. Primack placed the claimant at maximum medical improvement (MMI) on August 15, 2005. The claimant underwent a Division-sponsored independent medical examination and that physician agreed that the claimant was at MMI. The insurer filed a final admission of liability on January 19, 2006 that admitted for a general award of medical benefits after MMI.

Hearings were held before ALJ Henk on a number of issues including post-MMI maintenance medical benefits and a change of physician to Dr. Yamamoto. ALJ Henk issued an order dated May 3, 2007 denying the claimant’s request for a change of physician to Dr. Yamamoto. In her order ALJ Henk made the following findings of fact regarding Dr. Yamamoto’s recommendations for epidural injections. Dr. Primack placed the claimant at MMI on August 16, 2005 (Exhibits T and 16 are Dr. Primack’s report of MMI dated August 16, 2005; however, the exact date of the MMI finding does not appear to be in dispute), and rated her with a final 12 percent whole person permanent impairment for injuries to her lumbar spine. Dr. Primack recommended that the claimant

Page 2

take a stretching break after driving for 90 minutes. As for post-MMI medical treatment, Dr. Primack recommended that the claimant take over-the-counter pain medication and continue with her home exercise program. Dr. Primack’s opinions concerning post-MMI maintenance and medical treatment were credible and persuasive. Dr. Primack disagreed with Dr. Yamamoto’s recommendations for an epidural injection because the claimant does not have discogenic pain. The claimant failed to prove by a preponderance of the evidence that the additional treatment recommended by Dr. Yamamoto was designed to maintain MMI or prevent further deterioration of the claimant’s condition. Dr. Primack opined that for the claimant’s lumbar strain injury the claimant sustained at best a mild lumbosacral strain and that no further treatment was recommended for the strain injury other than a home-exercise program and Lidoderm patches. Dr. Primack disagreed with injecting the claimant’s facets because the facets are not the generators of her pain; the generator of her pain was the vertebral body fracture.

In her order dated May 3, 2007 ALJ Henk denied the claimant’s claim for permanent total disability, denied the claimant’s request for a change of physician to Dr. Yamamoto, and ordered the respondents to pay for reasonable and necessary post-MMI maintenance medical treatment, including Lidoderm patches, but excluding epidural steroid injections.

The claimant returned to Dr. Primack in June 2007. Dr. Primack noted a non-occupational calcification of the aorta shown on a CAT scan and encouraged the claimant to see her primary care, non-occupational physician for this issue. Dr. Primack stated that he did not feel the need to see the claimant again for follow-up because her industrial condition was not better or worse.

The claimant saw Dr. Yamamoto for treatment of her back pain on July 27, 2007. Dr. Yamamoto recommended referral to a specialist for evaluation of a possible epidural steroid injection.

The claimant saw Dr. Danahey in September 26, 2007, who noted that the claimant was better and opined that no further care or treatment was needed. Dr. Danahey again evaluated the claimant on June 25, 2009 and noted the claimant was seeking another injection, but he did not feel additional injections would be necessary because it would not be of more than transient benefit. The claimant returned to Dr. Danahey for evaluation on September 3, 2009. Dr. Danahey concluded that a repeat epidural steroid injection was not recommended. Dr. Danahey did not have any further treatment recommendations other than continuation of an exercise program.

ALJ Krumreich considered the issues of the reasonableness and necessity of epidural steroid injections to maintain the claimant’s condition after MMI and the

Page 3

claimant’s request for a change of physicians to Dr. Yamamoto. The ALJ concluded that the claimant’s request for epidural steroid injections as maintenance medical treatment, together with her request for a change of physician to Dr. Yamamoto, were barred by the doctrine of issue preclusion. The ALJ rejected the claimant’s contention that Dr. Yamamoto had become an ATP by having the right of selection pass to her.

I.
The claimant contends that ALJ Krumreich erred as a matter of law when he found that issue preclusion barred the claimant from seeking both authorization for reasonable and necessary medical care and a change of physician. We agree.

Issue preclusion is an equitable doctrine that bars relitigation of an issue that has been finally decided by a court in a prior action. Bebo Construction Co. v. Mattox O’Brien, 990 P.2d 78, 84 (Colo. 1999). Its purpose is to relieve parties of the burden of multiple lawsuits, to conserve judicial resources, and to promote reliance upon and confidence in the judicial system by preventing inconsistent decisions. Id. Although issue preclusion was conceived as a judicial doctrine, it has been extended to administrative proceedings, where it “may bind parties to an administrative agency’s findings of fact or conclusions of law.” Sunny Acres Villa, Inc. v. Cooper, 25 P.3d 44, 47 (Colo. 2001). See also Holnam, Inc. v. Industrial Claim Appeals Office, 159 P.3d 795 (Colo. App. 2006). The supreme court has stated that:

Issue preclusion bars relitigation of an issue if: (1) the issue sought to be precluded is identical to an issue actually determined in the prior proceedings; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.

Sunny Acres Villa, Inc., 25 P. 3d at 47.

The ALJ determined that the issues of the injections and a change of physician to Dr. Yamamoto had already been fully litigated before ALJ Henk. The ALJ cited McGee v. Pasterkamp Heating and Air Conditioning, W.C. No. 4-505-189 (December 3, 2009), as persuasive authority for the proposition that the potential need for medical treatment changed or that the claimant’s condition worsened does not prevent a prior decision denying certain medical benefits from having preclusive effect. In McGee, the claimant alleged that his repeated request for a medical procedure for his wrist was based on the failure of another, approved procedure to improve his condition. Two of three examiners concluded that the issue of the wrist procedure presented no new issue and was barred by

Page 4

the previous decision to deny the procedure. The Colorado Court of Appeals disagreed and concluded that the claimant’s renewed request for the wrist procedure presented a different issue because of an alleged change in condition. McGee v. Industrial Claim Appeals Office, No. 09CA2711, slip op. at 4-6 (Colo. App. Oct. 14, 2010) (not selected for official publication). Here, the claimant asserts a worsening of condition in support of her requests for both the epidural steroid injections and a change of physician. The claimant also asserted a mistake in diagnosis regarding her request for the injections. In addition, concerning the claimant’s request to change physicians, the ALJ found that the claimant’s current physicians did not have further treatment recommendations for the claimant other than exercise. We conclude that the claimant’s allegation of a worsened condition presents different issues for adjudication. It is therefore necessary to remand this matter to the ALJ to consider the claimant’s requests for the epidural steroid injections and a change of physician.

II.
The claimant further contends that Dr. Yamamoto and his referral be considered authorized treating physicians because there was substantial evidence in the record to support a finding that Dr. Primack and Dr. Danahey discharged the claimant for “non-medical” reasons.

The respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). “Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 797 P.2d 677 (Colo. App. 1997). Under § 8-43-404(5)(a), C.R.S., the employer or insurer is afforded the right in the first instance to provide a list of at least two physicians from which list the injured employee may select the physician who attends her. However, § 8-43-404(5)(a) implicitly contemplates that the respondent will designate a physician who is willing to provide treatment. 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) affd, Teledyne Water Pic v. Industrial Claim Appeals Office, No. 92CA0643 (Colo. App., Dec. 24, 1992) (not selected for official publication). Therefore, if the physician selected by the respondents refuses to treat the claimant for non-medical reasons, and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized. See Ruybal v. University Health Sciences Center, supra.

Whether the ATP refused to treat the claimant for non-medical reasons, whether the insurer had notice of the refusal to treat, and whether the insurer “forthwith” designated a physician who was willing to treat the claimant are questions of fact for

Page 5

resolution by the ALJ. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000); Ruybal v. University Health Sciences Center, supra; Medina v. La Jar a Potato Growers, W.C. No. 4-128-326 (June 1, 1998). Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-304(8), C.R.S.; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717
P.2d 965 (Colo. App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).

The claimant argued at the hearing for the designation of Dr. Yamamoto as an ATP contending that the right for selection of an ATP passed to the claimant based upon Dr. Danahey and Dr. Primack’s refusal to provide her further treatment for non-medical reasons. However, ALJ Krumreich was not persuaded that the claimant had proven that Dr. Danahey and Dr. Primack refused to provide the claimant with further medical treatment for non-medical reasons.

The claimant contends that ALJ Krumreich erred in concluding that Dr. Primack and Dr. Danahey did not refuse to provide treatment. The claimant argues that Dr. Primack and Dr. Danahey concluded her complaints were not work-related and therefore refused to treat for “non-medical” reasons. The claimant argues that ALJ Krumreich, contrary to the case law, seemed to limit non-medical reasons to the issue of payment. We do not read the ALJ’s order to suggest such a limitation.

In making that determination of whether Dr. Danahey and Dr. Primack refused to provide the claimant with further medical treatment for non-medical reasons, the ALJ made the following findings of fact with record support. When Dr. Danahey evaluated the claimant in 2007 and again in 2009 he did not provide further treatment to the claimant based upon his assessment that further treatment was not needed. Exhibit BB at 84; Exhibit EE at 87-89; Exhibit GG at 93. The same is true for Dr. Primack when he evaluated the claimant in June 2007 and was concerned about the presence of calcification in the iliac aorta, a non-work related condition, and recommended further work-up of this condition. Exhibit X at 76-77; Exhibit Z at 80. Dr. Primack specifically stated he did not see the need to see the claimant again because her condition was no

Page 6

better and no worse. Exhibit X at 77; Exhibit Z at 80. The ALJ found that these were medical reasons and reasonable opinions held on the part of Dr. Danahey and Dr. Primack as opposed to “non-medical” reasons such as payment of a physicians’ billings for treatment of a patient or the status of a claim being denied as work-related. Furthermore, the ALJ was not persuaded that Dr. Danahey or Dr. Primack discharged the claimant from care and failed to provide her with further medical care, such as the care she was obtaining from Dr. Yamamoto and seeking authorization for, strictly on the basis that they believed the claimant’s complaints were not work-related.

In our view there is substantial evidence in the record supporting the ALJ Krumreich’s determination that the ATPs did not refuse to treat the claimant for non-medical reasons. Therefore, we are not persuaded to interfere with this determination. Section 8-43-301(8), C.R.S.

The claimant also argues that Dr. Primack effectively referred the claimant to Dr. Yamamoto in June 2007 making Dr. Yamamoto an ATP based upon the holding in Cabela v. Industrial Claim Appeal Office, 198 P.3d 1277 (Colo. App. 2008). In Cabela the ALJ found that the claimant had sustained a compensable injury to her right knee. The claimant was seen by an employer’s physician who opined that he could see no direct link between the claimant’s work with the employer and the injury. The employer’s physician recommended that the claimant follow up with her personal physician. The court agreed with the claimant that the referral to her personal physician was the responsibility of the employer. The court held that the risk of mistake by an ATP in concluding that an injury is noncompensable lies with the employer. The court noted that the treatment by the personal physician was reasonably needed to cure and relieve the claimant from the effects of the compensable injury and therefore the employer was responsible for those medical costs.

ALJ Krumreich determined that the claimant’s reliance upon the holding in Cabela was misplaced. ALJ Krumreich noted that i Cabela the ATP referred the claimant to a personal physician for treatment of a knee injury based upon the ATP’s impression that the injury was not work-related. However, ALJ Krumreich found that the facts here were distinguishable from the facts dealt with in Cabela.

ALJ Krumreich found the following. In June 2007 Dr. Primack referred the claimant for evaluation by her primary care physician for the non-work related condition of calcification of the iliac aorta seen on a CT scan. Dr. Primack did not refer the claimant to her primary care physician for the work-related condition of her low back, as did the physician in Cabela. The claimant initially saw Dr. Yamamoto in 2006 for a second opinion. The evidence failed to persuasively establish that any physician-patient relationship developed between the claimant and Dr. Yamamoto as a result of the second

Page 7

opinion evaluation. Thus, even if it were concluded that Dr. Primack referred the claimant to her primary care physician in June 2007 for treatment of work-related conditions, the claimant has not shown by a preponderance of the evidence that Dr. Yamamoto was her primary care physician at the time of the purported referral from Dr. Primack.

In our view, ALJ Krumreich’s findings of fact regarding the referral by Dr. Primack are supported by substantial evidence in the record and so are binding upon us. Section 8-43-301(8), C.R.S. The record support includes Dr. Primack’s medical reports and testimony. Tr. (4/5/2010) at 53-54; Exhibit 13 at 15.

We also agree that Cabela is not controlling. The present case does not involve a situation, as in Cabela, where the employer’s physician provided a referral under the mistaken belief that a condition claimed to be work-related was not related, but the condition was later found by an ALJ to, indeed, be work-related. Here, unlike the facts in Cabela, there has been no determination that the calcification of the iliac aorta seen on a CT scan was causally related to the industrial injury. The ATP noticed during the examination process a condition unrelated to the claim and recommended that the claimant see her primary care physician for that non-work-related condition. The condition noticed by the employer’s physician of calcification of the iliac aorta is not even at this time claimed to be work-related.

The claimant, citing Merrill v. Mulberry Inn, Inc.
W.C. No. 3-949-781(November 16, 1995), alleges that there was a breakdown in the physician patient relationship with Dr. Danahey or Dr. Primack. We are not persuaded that ALJ Krumreich erred in denying the request for a change of physicians to Dr. Yamamoto on this basis.

In Merrill, the Panel interpreted § 8-43-404 (5)(a)(VI), C.R.S. as affording the ALJ discretionary authority to grant the claimant’s request for a change of physician. Vigil v. City Cab Co. W.C. No. 3-985-493 (May 23, 1995); Carson v. Wal Mart, W.C. No. 3-964-079 (April 12, 1993). However, the Panel also noted that an ALJ is not compelled to grant a change of physician based upon the claimant’s personal dissatisfaction with a physician See Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985); Garcia v. Kings Table
(Colo. App. No. 92CA1570, May 27, 1993) (not selected for publication) (ALJ did not err in failing to grant change of provider based upon claimant’s dislike of the attending physician).

Here, ALJ Krumreich made the following findings with record support. Dr. Danahey stated that the claimant was fine with him as her physician and the care he provided. Exhibit EE at 88. In contrast, ALJ Krumreich found that the claimant initially saw Dr. Yamamoto in 2006 for a second opinion, but the evidence failed to establish that

Page 8

any physician-patient relationship developed between the claimant and Dr. Yamamoto as the result of that second opinion evaluation. Exhibit 11 at 115. In the hearing before ALJ Henk the claimant had also made a request for a change of physician to Dr. Yamamoto. ALJ Henk found that the claimant had failed to show that Dr. Danahey had provided substandard care and concluded that the claimant had failed to make a proper showing for a change of physician to Dr. Yamamoto. Exhibit 1 at 5, 23-24. ALJ Krumreich denied the claimant’s request for a change of physicians to Dr. Yamamoto.

We cannot say that ALJ Krumreich’s finding that the claimant had failed to make a proper showing for a change of provider exceeds the bounds of reason. See Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985) Ramirez v. Monfort, Inc., W.C. Nos. 4-152-417, 4-188-908 4-188-910 (May 5, 1995) Herrera Gray v. El Paso County School District #1, W.C. No. 3-998-244 (October 15, 1993).

The claimant further contends that there has been a failure to provide care. The claimant argues that the designated providers, Dr. Primack and Dr. Danahey are not providing “any care” to relieve the claimant’s chronic low back pain. Citing Miller v. ResCare, W.C. No. 4-761-223 (September 16, 2009), affd, ResCare, Inc. v. Industrial Claim Appeals Office, No. 09CA2048 (Colo. App. June 3, 2010) (not selected for official publication), the claimant argues that the respondents failed to provide care where the treating physician acknowledges that care is needed.

In Miller, the claimant testified that she had a conflict with the ATP, who basically told her he could not work with or treat her anymore. The Panel upheld the ALJ’s interpretation of the evidence, finding that the first ATP refused to treat for a nonmedical reason and a second ATP opined the claimant might need further medical treatment, but the claimant did not receive nor was she offered any further medical treatment. In light of the employer’s failure to arrange for further care the ALJ’s determination that the right of physician selection reverted to the claimant was affirmed.

Here, the ALJ made the following findings of fact with record support. Dr. Danahey evaluated the claimant on September 26, 2007 and noted that no further care or treatment was needed. Exhibit BB at 84. Dr. Danahey saw the claimant again on June 25, 2009 and opined that he did not feel that additional injections would be necessary because it would not be of more than transient benefit and that the claimant should continue with an exercise program. Exhibit EE at 89.

We acknowledge that in the extensive testimony of Dr. Primack the issue of whether the claimant should undergo a DEXA scan for identification of osteoporosis, and testing for peripheral polyneuropathy was raised. Tr. (4/5/2010) at 83-86, 106. In general, these tests were to determine the presence of a differential diagnosis that might

Page 9

be a cause for the claimant’s symptoms. Tr (4/5/2010) at 112, 134, 145-46. The respondents at the hearing offered to authorize such a workup, but the claimant rejected it indicating that the matter had been pending for too long and the claimant was now under the care of Dr. Yamamoto. Tr (4/5/2010) at184-85.

We note that the type of additional testing discussed by Dr. Primack was not the medical treatment that the claimant had sought at the hearing. The claimant sought medical care in the form of management of her low back pain for her industrial injury as recommended by Dr. Yamamoto and Dr. Schwettman, including epidural steroid injections. See Claimant’s Motion for Summary Judgment Claimant’s Post-Hearing Position Statement. Therefore, the opinions of Dr. Primack on possible additional testing are not connected with the additional treatment sought by the claimant and addressed by ALJ Krumreich following the hearing.

In any event, the ALJ found that Dr. Primack had stated that he did not feel the need to see the claimant again in follow-up as her condition was no better and no worse. Exhibit 13 at 149-50. Dr. Primack opined that degenerative changes found on a CAT scan were independent of the claimant’s work injury. To the extent that the expert testimony of Dr. Primack is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).

Whether there has been a failure to provide care is a question of fact for resolution by the ALJ. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000); Medina v La Jar a Potato Growers, W.C. No. 4-128-326 (June 1, 1998). The ALJ was persuaded that the claimant’s ATPs determined the claimant required no further medical care. Thus, the ALJ could reasonably infer that the ATPs did not refuse to treat the claimant.

IT IS THEREFORE ORDERED that the ALJ’s order dated May 12, 2010 is set aside to the extent that the claimant was precluded from seeking a change of physician or an award of medical benefits for epidural steroid injections, and remanded to the ALJ for further proceedings and a new decision on those issues, but is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird
____________________________________ Curt Krikciun

Page 10

Examiner Schrant dissents: Unlike the majority, I do not believe that ALJ Krumreich erred as a matter of law when he found that issue preclusion barred the claimant from relitigating the claimant’s request for epidural steroid injections and change of physician to Dr. Yamamoto. Notwithstanding the majority’s declaration that the claimant’s allegation of a worsened condition presents different issues for adjudication, I believe that all the elements of issue preclusion are present.

The claimant argues that she is not bound by ALJ Henk’s order on the issue of entitlement to epidural steroid injections recommended by Dr. Yamamoto because there was a mistake in the original diagnosis and worsening of her condition. I understand that whenever a party asserts that the claimant’s condition has changed since the date of the last order, the issue presented is necessarily different from the issue previously determined. However, the claimant has not filed a petition to reopen the issue of entitlement to steroid injections or change of physicians. In my view the order of ALJ Henk on the entitlement to steroid injections became final by failure of the claimant to seek review of that order and no further proceeding to increase the benefits granted by that order is authorized in the absence of an order entered reopening the award. See Lewis v. Scientific Supply Co., Inc. 897 P.2d 905 (Colo. App. 1995) (a final award cannot be reopened except pursuant to statute); See als Esquibel v. Victorian Janitorial Services, W.C. 4-188-325 (July 8, 1997) (an issue properly closed may only be reopened pursuant to § 8-43-303 C.R. S.).

Presumably an allegation of a worsened condition, even if made by the respondents, would prevent application of the doctrine of issue preclusion and allow relitigation of specifically ordered medical benefits. Because I believe the issue of the reasonableness and necessity of epidural steroid injections and request for a change of physician was litigated before ALJ Henk and was the subject of ALJ Henk’s final order, I would affirm ALJ Krumreich’s order.

Page 11

CHARLOTTE ZOLMAN, WHEAT RIDGE, CO, (Claimant).

PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., 7501 E LOWRY BLVD, DENVER, CO, (Insurer).

BISSET LAW OFFICE, Attn: JENNIFER E. BISSET, ESQ., ENGLEWOOD, CO, (For Claimant).

RITSEMA LYON, Attn: MARGARET A. METZGER, ESQ., DENVER, CO, (For Respondents).

Page 1