W.C. No. 4-579-880.Industrial Claim Appeals Office.
July 19, 2004.
FINAL ORDER
The claimant seeks review of that portion of an order of Administrative Law Judge Klein (ALJ) which denied medical benefits because the providers were not authorized. The respondent seeks review of the order insofar as it awarded temporary total disability (TTD) benefits beyond the alleged date of maximum medical improvement (MMI). We affirm the denial of medical benefits and set aside the award of TTD benefits.
The claimant alleged that she sustained an injury to her left shoulder and upper extremity on September 9, 2002, while working on the employer’s production line. The injury allegedly occurred when the claimant was pulling boxes off the line or picking up meat. However, the respondent denied liability and filed a notice of contest.
Upon reporting the alleged injury, the claimant was originally treated conservatively by the employer’s health services. However, on October 2, 2002, she was referred to Dr. Wunder, a physician contracted by the employer to evaluate and treat work-related injuries. On October 2, Dr. Wunder referred the claimant for x-rays and electrodiagnostic studies of the shoulder. Dr. Wunder again examined the claimant on October 14, 2002, recording that although the claimant was still reporting “diffuse upper extremity pain from her shoulder to her fingertips,” the electrodiagnostic studies and x-rays were essentially negative. Dr. Wunder’s impression was “nonspecific left upper extremity pain,” and he placed the claimant at maximum medical improvement (MMI) with no permanent restrictions or impairment. The ALJ explicitly found that Dr. Wunder “discharged the Claimant for medically related reasons” because he believed the claimant did not have a “medically treatable problem.” (Findings of Fact 7-9, 35; Respondent’s Exhibit H).
The claimant continued to experience symptoms in her left shoulder and upper extremity and on October 25, 2002, elected to seek treatment from Dr. Manning. Dr. Manning referred the claimant to Dr. McPherson, who removed the claimant from work on November 18, 2002. Dr. McPherson referred the claimant to Dr. Leimbach, who ordered an MRI of the shoulder. On January 8, 2003, the MRI was performed and it revealed the presence of a torn rotator cuff. The claimant was then referred to Dr. Isaacs, who surgically repaired the shoulder on February 12, 2003.
The claimant has been on medical leave from her job since November 18, 2002. She was discharged on July 21, 2003, for reasons which the ALJ found were not the claimant’s fault.
The ALJ concluded that the claimant met her burden of proof to establish that she sustained a compensable injury on September 9, 2002. The ALJ found that the claimant was in “continuous treatment” from the alleged date of injury until the rotator cuff condition was revealed by the January 8 MRI.
However, the ALJ denied the claim for medical treatment rendered by the physicians and providers who treated the claimant after October 14, 2002, commencing with Dr. Manning. The ALJ concluded that, although the treatment rendered by these physicians was reasonable and necessary, it was not authorized because the claimant changed physicians without authorization. The ALJ concluded the right to select the treating physician never passed to the claimant because when Dr. Wunder discharged the claimant, he did so for “medically related reasons, i.e. he did not believe Claimant had a treatable injury based on diagnostic testing and his medical history with Claimant.” (Conclusion of Law 5).
Finally, the ALJ awarded TTD benefits commencing November 18, 2002. The ALJ found, based on the opinion of Dr. McPherson, that the claimant has been unable to work since this date.
I.
On review, the claimant contends the ALJ erred in denying compensation for the medical treatment she received after Dr. Wunder placed her at MMI on October 14, 2002. The claimant argues that “under the facts of this claim,” Dr. Wunder should not be considered a treating physician because he refused to treat the claimant for non-medical reasons. Specifically, the claimant alleges that Dr. Wunder erroneously believed “that no injury occurred” and he was biased against the claimant because he doubted the validity of her symptoms. The claimant further argues that Dr. Wunder did not “treat” the claimant and did not qualify as an ATP. The respondent replies that the evidence supports the ALJ’s findings that Dr. Wunder based his decisions on medical judgment, and therefore, the right of selection never passed to the claimant. In any event, the respondent argues that awarding additional medical treatment to the claimant would amount to a “constructive challenge” to the authorized treating physician’s (ATP) finding of MMI, and the ALJ lacked jurisdiction to enter such an award absent a Division-sponsored independent medical examination (DIME). We agree with the respondent’s arguments. However, the respondent’s jurisdictional argument will be discussed in the second part of this order since it is also relevant to the argument concerning the award of TTD benefits.
The respondent had the right to select the ATP in the first instance. Section 8-43-404(5)(a), C.R.S. 2003. Once an ATP was designated, the claimant was not free to retain additional physicians or change physicians without procuring the consent of the insurer or obtaining an order from an ALJ. Medical treatment obtained in violation of these principles is considered unauthorized and is not compensable. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999).
Of course, the respondent must designate a physician willing to treat the claimant based on the physician’s medical judgment. If the respondent designates a physician who refuses to treat the claimant based on non-medical considerations, the respondent’s designation is incomplete and it must designate a new ATP or the right of selection will pass to the claimant. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29
(Colo.App. 2000); Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988).
The question of whether an ATP has exercised independent medical judgment, or is basing a refusal to treat on non-medical considerations, is one of fact for determination by the ALJ. Lutz v. Industrial Claim Appeals Office, supra; cf. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997) (question of whether referral was made as a result of ATP’s independent medical judgment was one of fact). Consequently, we must uphold the ALJ’s determination of this question if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and credible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, substantial evidence supports the ALJ’s finding that Dr. Wunder based his decision not to provide additional treatment after October 14 on medical considerations. As the ALJ recognized, Dr. Wunder performed diagnostic testing and physical examinations in an effort to diagnose and treat the claimant’s symptoms. However, based on the results of the tests and the non-physiologic character of the claimant’s symptoms, Dr. Wunder concluded that no further treatment was warranted. Although there is some evidence in the record which might support a contrary conclusion, that fact does not justify interfering with the ALJ’s resolution of the conflicting evidence and corresponding inferences. Wilson v. Industrial Claim Appeals Office, supra.
It follows that the record supports the ALJ’s determination that the treatment which the claimant procured after October 14 was not authorized. The claimant simply procured treatment on her own without requesting a change of provider from the insurer or an ALJ. The fact that the ALJ determined the treatment rendered by the unauthorized physicians was reasonable and necessary does not change the result because authorization and the reasonableness of treatment present separate elements of compensability. See One Hour Cleaners v. Industrial Commission, 914 P.2d 501 (Colo.App. 1995); Bilyeu v. Babcock Wilcox Inc., W.C. No. 4-349-701 (July 24, 2001), aff’d., Bilyeu v. Industrial Claim Appeals Office, (Colo.App. No. 01CA1505, April 11, 2002) (not selected for publication) (mere fact that ATP’s judgment regarding need for treatment is ultimately proven wrong does not provide grounds for claimant unilaterally to retain other physicians).
Insofar as the claimant asserts that Dr. Wunder did not qualify as a treating physician because he did not “provide any real diagnosis” or remedies, we disagree. The concept of a “treating physician” is broadly defined to include one who undertakes all steps to effect a cure, including examination, diagnosis and the application of remedies. The question of whether a physician is a “treating physician” is one of fact. Town of Ignacio v. Industrial Claim Appeals Office, supra.
Here, as the ALJ found, Dr. Wunder examined the claimant and obtained diagnostic studies in an effort to reach a diagnosis of the claimant’s condition. Thus, there is ample evidence to support the conclusion that Dr. Wunder was an authorized treating physician. The mere fact that Dr. Wunder failed to arrive at a correct diagnosis, or a diagnosis with which the claimant agrees, does not alter his legal status.
Finally, the fact that Dr. Wunder moved out of state in January 2003 does not change the result. By then, the claimant was already obtaining treatment from her personal physicians and not requesting further treatment from the respondent. Had the claimant requested such treatment, the respondent might have been obliged to designate a new provider. However, the claimant did not do so.
II.
The respondent contends the ALJ lacked jurisdiction to award TTD benefits beginning on November 18 because Dr. Wunder, as the ATP, had placed the claimant at MMI. The respondent argues that the ALJ’s order finding that the claimant needed additional medical treatment for her shoulder amounts to a “constructive challenge” to Dr. Wunder’s MMI determination, and that the ALJ could not award any TTD benefits or additional medical benefits without requiring the claimant to undergo a DIME. The claimant argues that Dr. Wunder could not determine MMI because he believed the claimant did not suffer any injury. The claimant further asserts that Dr. Wunder’s opinion concerning MMI was “ambiguous” and the ALJ implicitly resolved the ambiguity in favor of the claimant. We agree with the respondent’s argument.
Section 8-42-107(8)(b)(I), C.R.S. 2003, provides that “an authorized treating physician shall make a determination as to when the injured employee reaches” MMI. Section 8-42-107(8)(b)(II), C.R.S. 2003, provides that if a party disputes a determination of MMI by the ATP, a DIME may be selected “in accordance with section 8-42-107.2.” Section 8-42-107(8)(b)(III), C.R.S. 2003, provides that the finding of the DIME physician concerning MMI shall be overcome only by clear and convincing evidence, and that no hearing on the matter shall take place until the DIME physician’s finding has been filed with the Division.
Under this statutory scheme, the exclusive method of challenging an ATP’s finding of MMI is the DIME process, and an ALJ lacks jurisdiction to resolve a dispute concerning MMI unless a DIME has been conducted Town of Ignacio v. Industrial Claim Appeals Office, supra. Further, if an ATP has placed the claimant at MMI, the claimant may not circumvent the DIME process by changing physicians to obtain additional treatment to cure the condition, or to obtain reinstatement of TTD benefits. Such “constructive challenges” to the ATP’s MMI determination are not permitted by the statute. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
Determining MMI necessarily requires a physician to ascertain the cause or causes of the claimant’s condition in order to decide whether the claimant warrants additional treatment for any work-related problem. Consequently, the issues of whether all work-related conditions are stable and do not require additional treatment are an inherent part of the DIME process, and the DIME physician’s opinion on causation must be overcome by clear and convincing evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186, 189-190 (Colo.App. 2002).
In light of these principles, we agree with the respondent that the ALJ lacked jurisdiction to award TTD benefits after October 14, or to award the additional medical benefits sought by the claimant. The ALJ determined that Dr. Wunder was an ATP who provided diagnostic evaluations to the claimant and placed the claimant at MMI on October 14. (Findings of Fact 7-9; Conclusion of Law 5). The ALJ further found that Dr. Wunder’s MMI determination was based on his medical judgment that the claimant did not have a “treatable injury.” Inherent in Dr. Wunder’s determination was the finding that, at least by October 14, the claimant was not suffering from any condition causally-related to the alleged injury of September 9 which warranted additional treatment.
The physicians who treated the claimant after October 14, and the ALJ as well, disagree with Dr. Wunder’s opinion. These physicians and the ALJ are of the opinion that the claimant sustained a rotator cuff tear which is causally-related to the September 9 incident, and that this injury warranted additional treatment, including surgery. The ALJ also agreed with Dr. McPherson that this condition caused the claimant to be temporarily disabled on November 18.
However, no DIME was ever performed. Consequently, the ALJ lacked jurisdiction to consider the claimant’s argument that Dr. Wunder’s opinion on MMI was incorrect. Instead, the claimant was mounting an impermissible “constructive challenge” to Dr. Wunder’s MMI determination by presenting the opinions of additional physicians, retained after the MMI determination, that the claimant had sustained greater injury than found by Dr. Wunder and this injury required additional treatment.
The claimant argues that Dr. Wunder was disqualified as a matter of law from placing the claimant at MMI because Dr. Wunder did not believe the claimant sustained any injury on September 9. However, we disagree with this analysis. Even if Dr. Wunder believed the claimant did not sustain an injury on September 9, he was not disqualified from determining that, as of October 14, the claimant had no residual conditions which could be medically treated. Moreover, Dr. Wunder’s opinion that the claimant sustained no injury appears to be partially the result of the diagnostic testing, not a predetermined decision to disbelieve the claimant.
The threshold question of whether the claimant proved an injury arising out of and in the course of employment is one of fact for determination by the ALJ. However, the question of when the claimant reaches MMI is an issue for the ATP and the DIME physician, if any. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The ALJ was free to determine that the claimant sustained a compensable injury on September 9 without regard to Dr. Wunder’s opinion on that question. However, after Dr. Wunder became the ATP and provided examinations and diagnostic evaluations, the ALJ was not free to disregard Dr. Wunder’s opinion that, as of October 14, the claimant was at MMI and had no work-related conditions requiring treatment. Even if Dr. Wunder was incorrect that the claimant sustained no injury on September 9, that would not preclude him from finding at a later date that residuals of the injury did not exist and no further diagnostic procedures were appropriate.
Finally, we reject the claimant’s assertion that the ALJ implicitly found that Dr. Wunder rendered an “ambiguous” opinion on MMI and the ALJ resolved the ambiguity by finding Dr. Wunder did not place the claimant at MMI. In fact, the ALJ explicitly found that Dr. Wunder placed the claimant at MMI on October 14. (Finding of Fact 9). The order does not contain any suggestion that the ALJ believed Dr. Wunder’s opinion was ambiguous, or that the ALJ intended to resolve the supposed ambiguity in the claimant’s favor. Instead, the tenor of the order is that the ALJ believed Dr. Wunder was mistaken in placing the claimant at MMI as shown by the subsequent treatment and MRI findings.
Under these circumstances, we must set aside the ALJ’s award of TTD benefits commencing November 18, 2002. However, we should not be understood as holding that the claimant may or may not seek to overcome the finding of MMI through the DIME process. Neither do we hold that the claimant is prohibited from proving that her condition worsened after MMI so as to warrant additional TTD benefits. Those issues are not before us and we have not considered them.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 14, 2004, is set aside insofar as it awarded TTD benefits commencing November 18, 2002.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
Theresa Ayala, Greeley, CO, ConAgra Beef Company, Greeley, CO, Ardyth Karbowski, Sedgwick CMS, Omaha, NE, Regina M. Walsh Adams, Esq., Greeley, CO, (For Claimant).
Ronda K. Comings, Esq., Fort Collins, CO, (For Respondent).