W.C. No. 4-503-762.Industrial Claim Appeals Office.
October 21, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined Dr. Seeman is not an authorized treating physician by virtue of a referral from Dr. Sabin. We affirm the order and dismiss the remainder of the claimant’s appeal.
In 2001, the claimant suffered admitted injuries in a motor vehicle accident. In May 2004, Dr. Sabin diagnosed sternoclavicular instability secondary to the industrial injuries and placed the claimant at maximum medical improvement (MMI) with 12 percent impairment to the upper extremity. The claimant requested additional treatment to address instability in the left sternoclavicular joint which impaired his ability to perform various activities. However, Dr. Sabin reported he had no treatment other than some physical therapy to offer the claimant. Dr. Sabin also recommended against surgery.
Dr. Cebrain, who subsequently performed a Division-sponsored independent medical examination, diagnosed sternoclavicular joint arthritis. Dr. Cebrain did not recommend additional treatment besides two physical therapy sessions designed to teach the claimant how to stretch the shoulder joint.
The claimant testified that he continued to have problems with the sternoclavicular joint popping out, and therefore, contacted the respondent-insurer which directed him to return to Dr. Sabin. (Tr. pp. 29, 30). On January 5, 2005, the claimant returned to Dr. Sabin’s office with complaints that the sternoclavicular joint was loosening. (Tr. p. 23). In particular, he stated he had begun experiencing “gagging” symptoms where it felt like his collarbone was stuck in his throat. He stated that he told Dr. Sabin’s office he needed someone to fix the problem, at which point he was referred to Dr. Seeman. (Tr. p. 24) . Dr. Seeman, examined the claimant on January 12, 2005, and recommended a CT scan of the left shoulder to evaluate the sternoclavicular joint and medial clavicle instability.
The January 5, 2005 clinic note from Dr. Sabin’s office states that, “[T]he patient returns today stating that he has been referred by workmen’s comp to receive a recommendation from us to another specialist who would take care of this problem for him.” Dr. Sabin subsequently testified that at the time of the referral to Dr. Seeman he was under the impression that the Division of Workers’ Compensation (Division) had directed the claimant to his office to obtain a referral to a specialist, and if that were not the case, no referral would have been made. (Depo. Sabin p. 17).
Relying on Dr. Sabin’s deposition testimony, the ALJ determined Dr. Sabin’s referral to Dr. Seeman was not made in the normal course of authorized treatment. Therefore, the ALJ determined Dr. Seeman was not an authorized treating physician. Further the ALJ determined that Dr. Seeman did not discuss what he would look for in a CT scan, or what different course of treatment the CT scan might suggest. Therefore, the ALJ determined the recommended testing was not reasonable or necessary to relieve the effects of the industrial injury.
I.
On review the claimant contends the ALJ’s findings are not supported by the record. Further, the claimant contends that because the ALJ made no express finding the claimant manipulated Dr. Sabin into making the referral to Dr. Seeman or that the Division did not authorize Dr. Sabin to make a referral to a specialist, the findings do not support the order denying medical benefits. Further, because Dr. Sabin did not deny making the referral to Dr. Seeman, the claimant argues the ALJ’s order erroneously effects a retroactive deauthorization of Dr. Seeman. We reject these arguments.
The respondents are liable for all authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). 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).
A physician who begins treating the claimant as a result of a referral made in the “normal progression of authorized treatment” becomes an authorized treating physician. However, the referral is not considered valid unless it is the result of the referring physician’s independent medical judgment. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680
(Colo.App. 1999); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Where authorization for treatment is disputed, the physician’s identity as an authorized treating physician is not established unless the claimant proves the existence of a valid referral See Younger v. City and County of Denver, 810 P.2d 647
(Colo. 1991).
Here, it is undisputed Dr. Sabin referred the claimant to Dr. Seeman. However, the respondents retained the right to dispute Dr. Seeman’s authorization based on an argument that the referral was not grounded in the treating physician’s recommendation for further treatment. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). This principle protects the respondents’ statutory right to select the authorized treating physician and prevents the claimant from using the referral process to circumvent the respondent’s right. See § 8-43-404(5)(a), C.R.S. 2005. Therefore, we disagree with the claimant that the ALJ’s order retroactively deauthorizes Dr. Seeman.
Further, we must uphold the ALJ’s determination that the claimant failed to prove a valid referral if supported by substantial evidence in the record. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997) ; Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). However, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. 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, we may consider findings which are necessarily implied by the ALJ’s order. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, supra.
Dr. Sabin’s January 5 clinic note and deposition testimony contain substantial evidence that Dr. Sabin’s referral to Dr. Seeman was not based on Dr. Sabin’s independent judgment that further testing or treatment was reasonably necessary. To the contrary, Dr. Sabin’s clinic note reflects Dr. Sabin’s opinion that he knew of no appropriate treatment to improve the claimant’s condition. Instead, Dr. Sabin referred the claimant to Dr. Seeman because he believed, that for some reason the Division wanted the claimant to obtain another opinion by a specialist. The claimant does not cite any evidence, and we are unable to locate any evidence in the record that the Division did authorize Dr. Sabin to make a referral to a specialist. Under these circumstances, we understand the ALJ as having implicitly determined the evidence was insufficient to prove the Division wanted Dr. Sabin to refer the claimant to a specialist for additional testing or treatment. These findings support the conclusion the claimant failed to prove the referral was the result of Dr. Sabin’s independent medical judgment.
The claimant’s arguments notwithstanding, Meinke v. Fibreboard Corp., W.C. No. 3-105-304 (March 19, 1999), does not compel a contrary result. In Meinke the treating physician did not dispute the existence of the claimant’s back and leg pain or the claimant’s need for treatment of these complaints when he made a general referral to another physician. Rather, the referring physician simply didn’t believe the medical problems were causally related to the industrial injury. Therefore, when the medical problems were ultimately found to be related to the industrial injury, an ALJ determined that the referral had been made in the normal course of authorized treatment. Specifically, the referring physician believed treatment was necessary regardless of who was liable for the medical expenses.
In contrast, Dr. Sabin did not think any additional testing or treatment was necessary. Instead, the referral was based upon nonmedical decisions. Therefore, this claim is factually distinguishable fro Meinke.
II.
The claimant contends the ALJ failed to rule on his alternative request for permission to treat with Dr. Seeman pursuant to § 8-43-404(5)(a), C.R.S. 2005. However, the ALJ’s order does not list “change of physician” as one of the issues before him for adjudication and expressly reserved for future determination, all issues not specifically resolved in the order. Consequently, we understand the ALJ as having reserved the question of whether the claimant made a proper showing for a change of physician to Dr. Seeman See Haling v. Pueblo County, W.C. No. 4-507-284 (April 25, 2005).
III.
We reject the claimant’s further contention that the ALJ misconstrued the CT scan as “treatment” instead of a “diagnostic” testing tool to determine what type of treatment might relieve the effects of the industrial injury. The ALJ’s findings sufficiently articulate the ALJ’s awareness that the claimant requested “testing” in the form of a CT scan with the hope that it would result in a recommendation for “treatment.” (Conclusion of Law 4).
In any case, the claimant argues the record is contrary to the ALJ’s finding that the CT scan is not a reasonable or necessary diagnostic test. Again we disagree.
Dr. Seeman’s report states that a CT scan of the left shoulder is recommended to “evaluate the sternoclavicular joint, medial clavicle instability” and that after the test, the claimant would return to “discuss results and further treatment plan.” The report also notes that “we have briefly discussed possible surgical intervention as indicated” following the CT scan. (Claimant’s Hearing Exhibit 1). However, the report does not identify what “surgical intervention” was discussed. Neither does it discuss possible treatment alternatives.
In contrast, Dr. Sabin’s May 2004 report and Dr. Cebrian’s November 2004 report (Claimant’s Hearing Exhibit 4), recommend against any further treatment except a brief course of physical therapy, including surgical intervention. Furthermore, although Dr. Sabin was unable to state whether he disagreed with Dr. Seeman’s recommendation for the CT scan, (Depo. Sabin p. 23), he stated that he was unable to understand what Dr. Seeman thought the CT scan would show. Indeed, Dr. Sabin opined the CT scan “would be unlikely to show anything,” and doubted the CT scan would verify the claimant’s pain complaints of loosening in the sternoclavicular joint. (Depo. Sabin pp. 15, 23, 26, 28). Dr. Sabin also opined that it was unlikely the CT scan would lead to the discovery of some surgical procedure that would improve the claimant’s condition and speculated that perhaps Dr. Seeman recommended the test “just to appease the patient.” (Depo. Sabin p. 26). Against this backdrop, the ALJ reasonably found that Dr. Seeman’s report did not establish that the testing would be beneficial in the identification of further treatment modalities appropriate to relieve the claimant’s symptoms.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 13, 2005, is affirmed.
IT IS FURTHER ORDERED that the claimant’s petition to review the ALJ’s order concerning his request for a change of provider is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
Larry Clemenson, Wheat Ridge, CO, Lovern’s, Inc., Colorado Springs, CO, Truck Insurance Exchange, c/o Kay Rakow, Farmer’s Insurance, Denver, CO, Sheila Toborg, Esq., Colorado Springs, CO, (For Claimant).
Christian M. Lind, Esq., Denver, CO, (For Respondents).