W.C. No. 4-219-049Industrial Claim Appeals Office.
June 3, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which awarded medical benefits. We affirm.
The ALJ’s award was based upon the evidence presented at a hearing on November 3, 1995. The ALJ’s findings of fact may be summarized as follows. The claimant suffered a compensable injury on April 6, 1993, which caused pain on the right side of her neck, shoulder and back extending down the right arm. The claimant was referred to the Prowers Medical Center Emergency Room for treatment. The Emergency Room physician referred the claimant to Dr. Ghaibeh, who referred the claimant to Dr. Jones and Dr. Jones referred the claimant to Dr. Oster for treatment.
At the request of Dr. Oster, EMG tests were performed by Dr. Khan. Dr. Ghaibeh also referred the claimant to Dr. Khan to determine whether the claimant suffered a stroke, and later to determine whether the claimant’s problems are physical or psychological. The latter was an “open-ended” referral for treatment. Therefore, the ALJ determined that Dr. Khan is an authorized treating physician, and ordered the respondents to “pay per the fee schedule for all medical care Claimant has obtained from Dr. Khan and for the medications which Dr. Khan has prescribed.”
The ALJ further found that Dr. Dickerman performed a Division sponsored independent medical examination, and determined that the claimant reached maximum medical improvement (MMI) on August 23, 1995. Although the ALJ determined that Dr. Dickerman’s finding of MMI was not overcome by clear and convincing evidence, she found that the claimant requires ongoing medical treatment to relieve the effects of the injury. Therefore, the ALJ ordered the respondents to provide medical benefits beyond MMI.
On review the respondents first contend that the ALJ erred in ordering them to pay for Dr. Khan’s treatment. We disagree.
Initially, we reject the respondents’ argument that the ALJ erroneously granted a “change of providers” to Dr. Khan. To the contrary, the ALJ found that Dr. Khan was an authorized treating physician as a result of a referral from Dr. Ghaibeh.
The respondents concede that Dr. Ghaibeh became an authorized treating physician upon a referral from the Prowers Medical Center Emergency Room treating physician. Further, there is substantial evidence in the record to support the ALJ’s finding that Dr. Ghaibeh did not limit his referral to Dr. Khan See Dr. Ghaibeh reports May 24, 1994 and August 5, 1994. Therefore, we may not disturb the ALJ’s finding that Dr. Khan became an authorized treating physician in the normal progression of a referral from the initial treating physician. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985); Compare Gail v. U.S. West Service Link, Inc., W.C. No. 3-957-994, June 18, 1991, aff’d Gail v. U.S. West Service Link, Inc., (Colo.App. No. 92CA1107, June 3, 1993) (not selected for publication) (limited referral by treating physician). Consequently, we need not consider the respondents’ argument concerning the “limited referral” by Dr. Oster.
Next, we reject the respondents’ argument that the evidence is contrary to the ALJ’s finding that the treatment provided by Dr. Khan was reasonable and necessary to cure and relieve the effects of the industrial injury. The claimant’s testimony constitutes substantial evidence to support the ALJ’s determination. (Tr. pp. 17-19); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was substantial evidence that employment caused his heart attack). Moreover, the claimant’s testimony is buttressed by the reports of improvement contained in Dr. Khan’s medical records.
The claimant testified that if she does not take the medication prescribed by Dr. Khan, “the pain is unbearable,” and she “can’t sleep.” (Tr. p. 14). The ALJ also expressly credited the claimant’s testimony that the trigger point injections by Dr. Khan relaxed her muscles, which allows her to continue working. (Tr. p. 15; Finding of Fact 13).
The contrary opinions of Dr. Oster and Dr. Dickerman merely reflect a conflict in the evidence. Within her sole prerogative, the ALJ resolved the conflict against the respondents, and we may not interfere with that determination. See Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122
(Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion); Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). Consequently, the respondents have failed to present grounds which afford us a basis to disturb the ALJ’s award of medical benefits in the form of treatment by Dr. Khan.
However, the respondents further contend that the ALJ exceeded her authority insofar as she ordered the respondents to pay for all of Dr. Khan’s treatment. The respondents argue that the ALJ’s order implicitly requires them to pay fo all future treatment by Dr. Khan, and thus, precludes them from litigating the reasonableness of any particular future treatment. We disagree.
As the claimant concedes, the ALJ’s order only requires the respondents to pay for all of the past medical treatment provided by Dr. Khan. In contrast, the ALJ’s award of future medical benefits does not purport to predetermine the reasonableness of any particular treatment. Consequently, we do not understand the ALJ as having precluded the respondents from litigating the necessity and reasonableness of any future treatment. Cf. Grover v. Industrial Commission, 759 P.2d 705
(Colo. 1988).
Lastly, the respondents contend that the ALJ erred in awarding ongoing medical benefits. In support, the respondents contend that the claimant reached MMI on June 22, 1994 or at the very latest, November 1, 1994. We perceive no error.
A finding of MMI does not preclude an award of future medical benefits if there is substantial evidence that future medical treatment is reasonably necessary to relieve the effects of the industrial injury. Grover v. Industrial Commission, supra; Stollmeyer v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1798, September 14, 1995), cert. denied, April 29, 1996. In Milco Construction v. Cowan, 860 P.2d 539
(Colo.App. 1992), the court held that Grover requires the claimant to prove that “but for a particular course of treatment, a claimant’s condition can reasonably be expected to deteriorate, so that she will suffer a greater disability than she has sustained thus far.”
Here, the ALJ determined that the claimant requires medical treatment subsequent to MMI to relieve the effects of the industrial injury. Specifically, the ALJ found from substantial evidence in the claimant’s testimony, that the claimant continues to need a TENS unit. The ALJ also found that the claimant continues to receive trigger point injections from Dr. Khan, and continues to take medication prescribed by Dr. Khan, which are “necessary to provide enough pain relief so she can continue working.”
These findings reflect the ALJ’s determination that the claimant sustained her burden to prove a need for Grover
medical benefits. Therefore, it is immaterial whether the claimant reached MMI prior to August 23, 1995.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 17, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed June 3, 1996 to the following parties:
Twyla F. Batterton, 1506 S. 13th St., Lamar, CO 81052
Karen Bryant, Prowers Medical Center, 2101 S. Memorial Dr., Lamar, CO 81052
Sharon Thompson, Hospital Insurance Trust Services, P.O. Box 22438, Denver, CO 80222
Michael Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003-2815 (For the Claimant)
David J. Dworkin, Esq. Scott L. Evans, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For the Respondents)
BY: _______________________