W.C. No. 4-211-687Industrial Claim Appeals Office.
April 29, 1996
CORRECTED ORDER OF REMAND
This Corrected Order of Remand is issued pursuant to § 8-43-302(1)(a), C.R.S. (1995 Cum. Supp.), to correct a clerical error in the April 26, 1996 mailing of our Order of Remand. Accordingly, our Order of Remand is reissued in its entirety as follows:
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) dated October 20, 1995. We set aside the order and remand for entry of a new order.
The claimant sustained an admitted back injury in March 1994 which was treated by Dr. Lynch. The claim was closed pursuant to an uncontested Final Admission of Liability. In December 1994, the claimant requested additional medical treatment, and a change of physician. The respondents referred the claimant to Dr. Lynch for a one time reevaluation and denied the request for a change of provider. Thereafter, the claimant underwent further treatment including fusion surgery by Dr. Donner. The claimant subsequently petitioned to reopen the claim alleging a worsening of her condition from the industrial injury.
The ALJ found that the claimant’s condition from the industrial injury worsened subsequent to September 12, 1994, and therefore, reopened the claim. The ALJ also ordered the respondents to pay temporary total disability benefits commencing April 20, 1995. However, the ALJ determined that the respondents are not liable for the unauthorized medical treatment provided by Dr. Donner and denied the claimant’s request for a change of provider to Dr. Donner. Rather, the ALJ ordered the respondents to provide future medical care to the claimant by a physician of the respondents’ choice.
The claimant contends, inter alia, that the ALJ erred in failing to grant her request for a change of provider to Dr. Donner and failing to award temporary disability benefits for the period between September 12, 1994 and April 20, 1995. We conclude that the ALJ’s findings of fact are insufficient to resolve the claimant’s arguments. Therefore, we remand the matter for additional findings. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
Further, in view of our remand, we decline at this time to consider the claimant’s additional argument that the ALJ erred in failing to hold the respondents’ liable for the treatment provided by Dr. Donner.
Section 8-43-215, C.R.S. (1995 Cum. Supp.), requires that the ALJ enter specific findings of fact sufficient to indicate the basis of his conclusion regarding the claimant’s entitlement to benefits. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969). That requirement is not satisfied by a mere recitation of the evidence. State Compensation Insurance Fund v. Foulds, 167 Colo. 123, 445 P.2d 716
(1968).
Here, the ALJ’s order summarizes the conflicting evidence in the record. However, we have reviewed the specific findings of fact, the ALJ’s Summary Order and the ALJ’s oral findings, and are unable to ascertain the basis for the denial of the request for change of physicians to Dr. Donner, or the limited temporary disability award.
For example, the ALJ found that the treating physician, Dr. Lynch, determined the claimant to be at maximum medical improvement (MMI) in September 1994. (Finding of Fact 8). The ALJ also found that during a follow-up examination in January, Dr. Lynch observed no change of the claimant’s condition, and thus, did not recommend further treatment. (Findings of Fact 4-6). However, implicitly crediting the opinions of Dr. Donner and Dr. Burke, the ALJ found that the claimant’s condition had
worsened since September 1994, and that the claimant was no longer at MMI. The ALJ also implicitly rejected Dr. Lynch’s opinion that the claimant did not require additional treatment by ordering the respondents to provide further treatment.
Further, the ALJ noted Dr. Burke’s opinion that the diagnostic and surgical treatment provided by Dr. Donner was appropriate and helped the claimant. The ALJ also found that according to Dr. Burke the claimant should continue rehabilitation and psychological counseling “per Dr. Donner.”
Similarly, the ALJ ordered the respondents to pay temporary total disability benefits commencing April 20, 1995. However, the ALJ’s findings of fact do not indicate the basis for his determination that the claimant was not temporarily disabled prior to that date. In fact, the ALJ’s findings suggest the contrary.
The ALJ found that according to Dr. Donner, the claimant was not at MMI in February 1995 and that the claimant could not have worked between September 1994 and February 1995. (Finding of Fact 10). The ALJ also noted the January 19, 1995 report of the claimant’s personal physician, in which he stated that the claimant was not at MMI and it “would be difficult for [the claimant] to work in any serious capacity.”
Moreover, the ALJ cited Dr. Donner’s April 20, 1995 report which contains the doctor’s opinion that the claimant’s back and neck conditions are causally related to the industrial injury, and that the claimant’s condition “will continue to worsen without treatment.” However, that report does not discuss the claimant’s ability to work, or rescind Dr. Donner’s February 1995 report concerning the claimant’s disability. Therefore, further findings are necessary.
On remand, the ALJ shall issue a new order which contains additional findings of fact concerning the factual or legal bases of his resolution of the disputed issues. After the new order has been entered, the ALJ shall retransmit the matter to us for further proceedings.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 20, 1995, is set aside, and the matter is remanded to the ALJ to issue additional findings on the issues of change of provider and temporary total disability benefits.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Copies of this Corrected Order of Remand were mailed April 29, 1996 to the following parties:
Rochelle Boner, 6104 Jackpine Dr., Bellvue, CO 80512
Colorado State University, 122 Johnson Dr., Ft. Collins, CO 80523-0001
Colorado Compensation Insurance Authority, Attn: Marjorie Long, Esq. (Interagency Mail)
Ruth C. Malman, Esq., 1544 Pearl St., Denver, CO 80203
(For the Claimant)
BY: _______________________