W.C. No. 4-507-284Industrial Claim Appeals Office.
September 4, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied her request for a change of physician. We affirm.
In June 2001, the claimant suffered a compensable injury. The respondent designated Emergicare to treat the injury. As a result the claimant came under the care of Emergicare physician, Dr. Bradley. Shortly thereafter the claimant requested a change of physician on grounds Dr. Bradley acted in an “ungentlemanly and unprofessional” manner by disclosing confidential information about the claimant to the claimant’s co-workers. The respondent denied the request. Consequently, the claimant applied for a hearing.
In the interim, Dr. Bradley determined the claimant to be at maximum medical improvement (MMI) with 10 percent whole person impairment. The respondents requested a Division-sponsored independent medical examination (DIME) on the issue of permanent impairment. The claimant requested DIME on the issue of MMI.
Relying on Story v. Industrial Claim Appeals Office, 910 P.2d 80
(Colo.App. 1995), the ALJ determined she lacked authority to hear the request for a change of physician in the absence of a Division-sponsored medical examination (DIME) on the issue of MMI. (See Tr. pp. 34, 35) CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) rev’d on other grounds, at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). In addition, the ALJ determined she had no “jurisdiction to grant a Change of Physician for post-Maximum Medical Improvement Medical Benefits.” (Tr. pp. 41-42).
However, the parties agreed that if the claimant required additional treatment the respondent would provide an Emergicare physician other than Dr. Bradley to treat the injury. (Tr. pp. 47, 48). The ALJ approved the stipulation in the order on review.
On review the claimant contends the ALJ erroneously determined she lacked jurisdiction to hear the request for a change of physician. We perceive no reversible error.
Initially, we reject the respondents’ contention the claimant’s appeal is moot. At hearing the claimant attorney stated the claimant sought an order relieving her of any obligation to treat with a physician at Emergicare. (Tr. p. 52). Consequently, the respondent’s agreement to allow the claimant to treat with a physician other than Dr. Bradley does not resolve the disputed issue.
In Story v. Industrial Claim Appeals Office, supra, the court of appeals held that a party may not circumvent the DIME procedures of §8-42-107(8)(b), C.R.S. 2001 by obtaining a change of physician subsequent to the date the treating physician opines that the claimant has reached MMI. The court reasoned that, to the extent a claimant seeks a change in physicians to obtain treatment for purposes of curing the injury, the claimant is making a “constructive challenge” to the authorized treating physician’s determination of MMI. Thus, a DIME is mandated by the statute. However, the Story court held that a claimant may seek a change in physicians, subsequent to the treating physician’s determination of MMI, if the purpose of the change is to select a physician to provide ongoing medical benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
Applying these principles here, we conclude that the ALJ properly declined to hear the request for a change of physician for the purpose of “curing” the effects of the claimant’s industrial injury. However, to the extent that the ALJ concluded that § 8-42-107(8)(b) precluded her from authorizing a change of physicians for purpose of providing Grover
medical benefits, she erred. As held in Story, § 8-42-107(8)(b) presents no procedural bar to awarding Grover medical benefits, or authorizing a change in physicians to provide Grover benefits.
Nevertheless, the claimant’s entitlement to Grover-type medical benefits has not been determined and at hearing the claimant’s attorney argued the issue was not properly before the ALJ for adjudication. (Tr. pp. 27, 54). Moreover, the claimant did not request any specific medical benefits. Under these circumstances, the ALJ’s failure to hear the request for a change of physician was harmless and does not establish grounds for appellate relief.
We note that the ALJ did not enter specific findings of fact and conclusions of law” as required by § 8-43-215, C.R.S. 2001. However, in view of our disposition it would serve no useful purpose to remand the matter to the ALJ for the entry of a written order. Section 8-43-310, C.R.S. 2001; A R Concrete Construction v. Lightner, 759 P.2d 831
(Colo.App. 1988) (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 1, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO. 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO. 80202.
Copies of this decision were mailed September 4, 2002 to the following parties:
Billea Ames, 1703 Pioneer, Pueblo, CO. 81008
Pueblo County, Cathy Icabone, 215 W. 10th St., Pueblo, CO. 81003
CTSI, Jim Vail, 1700 Broadway #1512, Denver, CO. 80290
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO. 81003 (For Claimant)
Margaret Garcia, Esq., 3900 E. Mexico Ave., Ste. 1300, Denver, CO 80210 (For Respondent)
BY: A. Hurtado