W.C. No. 4-465-535.Industrial Claim Appeals Office.
July 19, 2004.
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Henk (ALJ) which determined the respondents overcame the medical impairment rating of the Division-sponsored independent medical examination (DIME) physician. We affirm.
The claimant suffered an admitted industrial injury to his back in June 2000. The respondents referred the claimant to the Corporate Health and Medical Programs Inc. (CHAMPS), where he was treated by Dr. Lynch. In November 2000 Dr. Lynch opined the claimant reached maximum medical improvement (MMI) with no permanent impairment. The claimant applied for a DIME.
The DIME physician agreed with the finding of MMI, but opined the claimant had permanent medical impairment of the low back and left shoulder attributable to the industrial injury. The respondents then applied for a hearing to contest the DIME physician’s medical impairment rating.
After viewing surveillance video of the claimant’s activities, the DIME physician withdrew his permanent impairment rating, although he maintained the claimant’s left shoulder symptoms, as well as fusion surgery perform in April 2002, were causally related to the industrial injury. However, the ALJ determined the respondents overcame the DIME physician’s opinion concerning the cause of the claimant’s left shoulder problems and permanent medical impairment. Consequently, the ALJ denied permanent medical impairment benefits.
On review the claimant contends that because the respondents designated a corporate entity instead of an individual physician to treat the industrial injury, Dr. Lynch’s determination of MMI was insufficient to trigger the DIME provisions of § 8-42-107(8), C.R.S. 2003. Therefore, the claimant contends the DIME was invalid and the hearing on permanent disability was premature. We reject this argument.
Sections 8-42-107(8)(b)(I) and (II), C.R.S. 2003, which govern this claim, provide that the initial determination of MMI and permanent medical impairment is to be made by “an authorized treating physician,” and if either party disputes that determination, the claimant must undergo a DIME. “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).
It is well established that § 8-43-404(5), C.R.S. 2003, affords the respondents the right in the first instance to select a physician to treat the industrial injury. If no designation is made, the right of selection passes to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987).
In Broadmoor Hotel v. Industrial Claim Appeals Office, Colo. App. No. 92CA1635, May 27, 1993 (not selected for publication), the court upheld our conclusion that the employer’s designation of the “company nurse” was insufficient to establish that the respondents exercised their right to select a “physician” to treat the injury. However, in Gerhardt v. Industrial Claim Appeals Office, Colo. App. No. 97CA1615, April 16, 1998 (not selected for publication), the court upheld our conclusion that the respondents properly exercised their right of first selection by directing the claimant to the “Rose Health Care Center” for treatment.
Here, it is undisputed the respondents designated CHAMPS to treat the industrial injury. It is also apparently undisputed that Dr. Lynch is a physician with CHAMPS and that Dr. Lynch was assigned by CHAMPS to treat the industrial injury. Under these circumstances, we agree with the ALJ that the evidence supports the conclusion the respondents tendered the services of a “physician” to treat the industrial injury at its expense. Consequently, Dr. Lynch became an authorized treating physician and Dr. Lynch’s finding of MMI was sufficient to trigger the DIME provisions of § 8-42-107(8)(c).
The claimant also contends the ALJ’s order violated due process protections insofar as the ALJ relied on the DIME physician’s change of opinion after viewing the videotape of the claimant’s activities, where such evidence existed but was “withheld” from the DIME physician prior to completion of the DIME report. However, the respondents contend the claimant waived this argument. We agree.
Prior to completion of the DIME, the respondents moved for permission to have the DIME physician view the videotape. The ALJ granted the motion, but the respondents subsequently decided not to enforce the order. Thereafter, the claimant requested permission to depose the DIME physician and have the DIME physician view the videotape. The ALJ granted the claimant’s request. Under these circumstances, the claimant cannot object to the ALJ’s consideration of the DIME physician’s opinions which resulted from his viewing of the videotape. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993); Jacobs v. Commonwealth Highland Theaters, Inc., 738 P.2d 6 (Colo.App. 1986).
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated April 29, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
Albert Andrade, Greeley, CO, Triple R Structures, c/o Glen B. Goldman, Esq. and T. Paul Krueger, II, Esq., Denver, CO, Legal Department, Pinnacol Assurance — Interagency Mail IME Unit, Division of Workers’ Compensation — Interagency Mail, Chris L. Ingold, Esq., Denver, CO, (For Claimant).
Glen B. Goldman, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondents).