W. C. No. 4-701-794.Industrial Claim Appeals Office.
December 10, 2007.
FINAL ORDER
The claimant and the respondents both seek review of an order of Administrative Law Judge Friend (ALJ) dated July 5, 2007, that found the claim compensable, denied the claimant’s request for temporary total disability benefits (TTD) and found the insurer liable for certain, but not all, medical care provided to the claimant. We affirm.
The ALJ’s pertinent findings of fact are as follows. On October 12, 2006, the claimant, while loading cargo, twisted and felt a popping in her right knee. The claimant reported the injury and the employer sent her to Mile High Occupational Medicine where Dr. Kamer saw her on October 14, 2006. Dr. Kamer released her to full duty. The claimant returned to Mile High Occupational Medicine and saw Dr. Miller on October 16, 2006, who opined that he could see no direct link between her position at the employer and the injury. Dr. Miller recommended that the claimant follow up with her private physician. Dr. Miller also stated that the claimant was at maximum medical improvement (MMI) and could return to full duty. A follow-up appointment was made for the claimant with Dr. Miller on October 24, 2006, but the claimant did not attend. The claimant did not respond to a letter requesting her to reschedule the appointment. Instead, the claimant followed the referral from Dr. Miller and sought medical attention from her primary care doctor, Dr. Tormey, who referred her to Dr. Lindenbaum, an orthopedic surgeon. Dr. Lindenbaum placed the claimant on restricted duty and recommended further treatment. The claimant did not return to work after seeing Dr. Lindenbaum. The ALJ found that the medical records established a difference of opinion
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between the physicians on the claimant’s MMI status. The records from Dr. Lindenbaum showed that as of October 24, 2006, the claimant was not at MMI. However, the records from Mile High Occupational Medicine placed the claimant at MMI on October 24, 2006, implicitly relying on Dr. Miller’s opinion that the claimant’s injury was not work related.
The ALJ found the claim compensable. On the issue of medical benefits, the ALJ found that Dr. Miller did refer the claimant to her own physician for treatment, and the claimant received care from Dr. Lindenbaum. However, Dr. Miller mistakenly believed that the claimant’s knee condition was not the result of the compensable injury and based his referral on that mistake. The referral was not made in the ordinary course of treatment of the compensable injury. Because Dr. Miller anticipated that he would provide additional examinations and treatment to the claimant, and set up a later appointment, the ALJ found that Dr. Miller had not refused to treat the claimant. Further, even if this course of events was to be considered a refusal to treat, the insurer was not notified of the refusal to treat, and therefore, the obligation to appoint a new treating physician did not arise. The ALJ determined that Dr. Lindenbaum was not an authorized treating physician (ATP), and the insurer was not liable for the costs of the care he provided to the claimant.
On the issue of TTD, the ALJ found that the reports of Dr. Lindenbaum, coupled with the testimony of the claimant, demonstrate that the claimant was on restrictions and was unable to work her usual job as of October 24, 2006. However, Dr. Lindenbaum was not an authorized treating physician, and therefore, there was no dispute between two authorized treating physicians. The ALJ determined he could not determine MMI but must accept Dr. Miller’s determination of MMI until a Division-sponsored independent medical examination (DIME) report was received. The ALJ determined since an authorized treating physician placed the claimant at MMI on October 16, 2006, that no award of TTD could be made after October 16, 2006. Therefore, the ALJ denied the claimant’s request for TTD.
I.
On appeal, the respondents contend the claimant’s injury did not arise out of her employment. The respondents, citing Willis v. Craig Hospital, W.C. 4-627-742 (February 13, 2006), argue that there is evidence in the record that the claimant’s knee was injured while she was filling out papers and merely standing at the time or was merely walking on a flat surface.
The claimant had the burden to prove that her alleged disability was proximately caused by an injury arising out of and in the course of her employment. Section 8-41-301(1)(c), C.R.S. 2007. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by
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substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
Because these issues are factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The respondents’ reliance on Willis v. Craig Hospital, is misplaced. In Willis the claimant sustained the injury when she merely turned and felt severe pain in her knee. The claimant had testified that she had experienced previous problems with her left knee, including a surgical total knee replacement. The ALJ found that the claimant did not carry her burden to prove by a preponderance of the evidence that there was a direct causal relationship between the employment and the injury. In contrast, in the present case the ALJ found with record support that while loading cargo into containers the claimant twisted and felt a popping in her right knee. She continued to load a second container when her knee felt dramatically worse and she fell to the ground due to instability. Tr. 11-13. The respondents point to other descriptions of the accident contained in the medical record which indicate that the incident occurred and the symptoms began when she was simply standing or filling out paperwork. However, the existence of evidence, which, if credited, might permit a contrary result, affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002). Here, the testimony of the claimant contains sufficient evidence to satisfy the claimant’s burden to prove that there was a direct causal relationship between the employment and the injury. We do not read Willis v. Craig Hospital, as compelling a different resolution by the ALJ.
The respondents also contend that there is sufficient evidence to find that a preexisting knee condition precipitated her injury. The respondents argue that because the evidence at the hearing did not establish a “special hazard” of employment to combine with the claimant’s preexisting condition the ALJ erred in finding the claimant sustained a compensable injury. We disagree.
On cross-examination, the respondents questioned the claimant regarding an auto accident that had occurred in 2000. Tr. at 21. The claimant’s testimony in response to this questioning might be interpreted as establishing that the claimant had some complaints in 2000 in both her knees. Chiropractic records dated 2001 were entered into
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evidence which showed a diagnosis of bilateral knee pain among other complaints. Exhibit E. However, the respondents have not pointed out, nor have we found anything in the medical record to support a finding that the auto accident, occurring approximately six years before, precipitated the claimant’s present need for medical treatment. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 61. Under the circumstances here, we perceive no reversible error because the ALJ did not expressly reject any possible defense based on a claimed preexisting condition.
Moreover, we note that when the parties at the commencement of the hearing stated the issues for the ALJ to consider, the respondents did not raise the issue of any pre-existing condition. In addition, the respondents failed to raise the issue of a preexisting condition, in their position statement filed before entry of the order. The respondents therefore failed to raise this argument before the ALJ and it has not been preserved for our review. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
II.
On appeal, the claimant contends that the ALJ erred in determining that the claimant’s family physician was not authorized by the referral from the ATP. Because the ALJ found the claim compensable, he found that Dr. Miller mistakenly believed that the claimant’s knee condition was not the result of the compensable injury, and based his referral on that mistake. The ALJ found that the referral was not made in the ordinary course of treatment of the compensable injury. Dr. Lindenbaum was not an ATP and therefore the ALJ reasoned he was bound by Dr. Miller’s determination of MMI. The ALJ found that since Dr. Miller placed the claimant at MMI on October 16, 2006, no award of TTD could be made after that date. Therefore, the ALJ denied the claimant’s request for TTD. The claimant argues that Dr. Lindenbaum was authorized by operation of law and therefore the ALJ erred in his denial of TTD and medical benefits. We disagree.
The respondents have the right to select the ATP in the first instance. Section 8-43-404(5)(a), C.R.S. 2007. Once selected the ATP may make authorized referrals in the ordinary course of care, but the claimant may not independently retain additional physicians without procuring permission from the insurer or the ALJ. If the claimant does not do so, the treatment provided by such personal physicians is not compensable.
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Moreover, the fact that the respondents contest liability does not negate their right to designate the ATP. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Bestway Concrete v. Industrial Claim Appeals Office, supra; Weinmeister v. Cobe Cardiovascular, Inc., supra.
Here the respondents contested liability based in part on Dr. Miller’s mistaken belief that the claimant’s knee condition was not the result of the compensable injury. In our opinion, the recommendation by Dr. Miller that under the circumstances the claimant should see her personal physician did not compel the ALJ to find this recommendation was a referral made in the ordinary course of treatment of the compensable injury.
“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). If an authorized provider refers a claimant to another provider in the ordinary course of medical treatment, the provider to whom the claimant was referred is considered authorized. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). The question of whether such a referral has been made is usually one of fact for determination by the ALJ. City of Durango v. Dunagan, supra; Weinmeister v. Cobe Cardiovascular, Inc., W. C. No. 4-657-812 (July 10, 2006). Here the ALJ determined with record support that the recommendation for the claimant to see her personal physician was not made in the ordinary course of treatment. We perceive no reversible error in that determination.
The claimant cites Davis v. Interstate Brand Corp., W.C. No. 4-291-678
(May 17, 1999), aff’d. Interstate-Brands Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1020, December 16, 1999) (not selected for publication) for the proposition that a referral to a family physician where the authorized treating physician feels that the injury is not work related constitutes an implied refusal to treat. I Davis the court held that if the designated treating physician refuses to provide treatment for non-medical reasons, the insurer must designate a new treating physician or the right of selection passes to the claimant. The respondent must appoint a new treating physician “forthwith.” Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987). In Davis, however, the evidence was apparently undisputed that the authorized treating physician actually declined to treat the claimant. To the contrary, in the present case the ALJ found that Dr. Miller did not refuse to treat the claimant. The ALJ found that Dr. Miller anticipated that he would provide additional examinations and treatment to the claimant, and his office even arranged a later appointment to treat the claimant. Tr. 23-24; Exhibit G at 2-3, 5.
Whether the authorized treating physician has refused to treat the claimant for non-medical reasons is a question of fact for resolution by the ALJ. Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000); Medina v. La Jara
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Potato Growers, W.C. No. 4-128-326 (June 1, 1998). Scoggins v. Air Serv, W. C. No. 4-642-757 (March 31, 2006). We must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2007. As noted above, there is substantial evidence to support the ALJ’s finding that Dr. Miller did not refuse to treat the claimant.
Further, in Davis it was noted the insurer’s obligation to appoint a new treating physician arises forthwith upon notice that the previously designated physician has refused to treat for a non-medical reason Wesley v. King Soopers, W.C. No. 3-883-959 (November 22, 1999). The ALJ found that even if the doctor had refused to treat the claimant, the insurer was not notified of that fact, and therefore the obligation to appoint a new treating physician did not arise. This finding appears to be uncontested. At any rate, the claimant has not pointed to any evidence that the employer or the insurer was notified of the refusal to treat and we find none in the record. Again, we must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8). Accordingly, we find no error in the ALJ’s determination that the obligation to appoint a new treating physician had not arisen.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 5, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
BARBARA CABELA, AURORA, CO, (Claimant).
UNITED PARCEL SERVICE, Attn: PAUL GETTER, 5020 IVY ST, COMMERCE CITY, CO, (Employer).
LIBERTY MUTUAL GROUP, Attn: SANDI GOLDBERG, C/O: LIBERTY MUTUAL INSURANCE COMPANY, IRVING, TX, (Insurer).
LAW OFFICE OF O’TOOLE SBARBARO, P.C., Attn: NEIL D O’TOOLE, ESQ., DENVER, CO, (For Claimant).
WEINBERGER SERRUTO, Attn: ROBERT A WEINBERGER, ESQ., DENVER, CO, (For Respondents).
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