W.C. No. 4-426-344Industrial Claim Appeals Office.
January 18, 2002
FINAL ORDER
The respondents seek review of orders of Administrative Law Judge Martinez (ALJ) dated May 18, 2000, and March 22, 2001. The respondents argue the ALJ lacked jurisdiction to order a change in the treating physician and award medical benefits because the claimant did not undergo a Division-sponsored independent medical examination (DIME) for the purpose of determining maximum medical improvement (MMI). The respondents further contend the ALJ improperly treated as evidence certain representations by claimant’s counsel. We affirm.
The claimant sustained a compensable injury to her neck and low back on April 23, 1999. On February 22, 2000, the treating physician placed the claimant at MMI with an 18 percent whole person impairment rating, but did not include any impairment for the cervical spine. The treating physician also stated the claimant “may need to be followed up periodically over the next year for medication refills.”
The claimant applied for a hearing seeking a change of physician. Meanwhile, the respondents sought a DIME on the issue of medical impairment. The hearing on the claimant’s request for a change of physician proceeded on April 19, 2000, prior to the DIME, which was scheduled for June 2000. At the hearing the respondents argued the request for a change of physician constituted a “constructive challenge” to the treating physician’s finding of MMI and, therefore, the hearing could not proceed without a DIME on the issue of MMI. At the conclusion of the hearing claimant’s counsel advised the ALJ the claimant was not challenging the treating physician’s determination of MMI. (Tr. April 19, 2000, p. 16).
On May 18, 2000, the ALJ entered an order granting the claimant’s request for a change of physician to Dr. Wubben. The ALJ credited the claimant’s testimony that the doctor-patient relationship had deteriorated because the treating physician disregarded the claimant’s privacy, the treating physician accused the claimant of using cocaine when the claimant was actually taking medication for kidney stones, the treating physician suggested to the claimant that she did not need an attorney to represent her in the workers’ compensation case, and because the treating physician refused to treat the claimant’s neck even though the industrial injury involved the claimant’s neck. The ALJ explicitly found the respondents did not “rebut any of the claimant’s factual contentions about the deterioration of the doctor-patient relationship.” Further, the ALJ was unpersuaded by the respondents’ argument that the request for a change of physician constituted a “constructive challenge” to the treating physician’s finding of MMI. The ALJ specifically relied on the statement of claimant’s counsel that the claimant was not seeking to challenge the treating physician’s MMI determination. (Finding of Fact 4).
The respondents sought immediate review of the May 18 order, but we dismissed the appeal without prejudice because it did not constitute a final order. Subsequently, in an order dated October 31, 2000, the ALJ found, inter alia, that the claimant made a “sufficient showing that her medical benefits should remain open pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).” Then, on March 22, 2001, the ALJ entered an order requiring the respondents to pay specific Grover medical benefits for examinations and medications prescribed by Dr. Wubben.
The May 18 order became final and reviewable as a result of the award of specific medical benefits in the March 22 order. The respondents contend the May 18 order violates principles announced in Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), because the claimant’s testimony at the hearing demonstrates the claimant was engaged in a “constructive challenge” to the treating physician’s finding of MMI. In support of this contention the respondents point out the claimant testified that one reason for her request to change physicians was her belief that she had not receive proper treatment for her neck condition, and was not at MMI for that condition. (Tr. April 19, 2000, p. 14). The respondents further contend the May 18 order is improper because the ALJ relied upon the statement of claimant’s counsel that the claimant was not challenging the treating physician’s MMI determination. We find no error.
It is true, as the respondents argue, that the authorized treating physician makes the initial determination as to when the claimant reaches MMI. Section 8-42-107(8)(b)(I), C.R.S. 2001. Further, the treating physician’s finding of MMI is binding on the parties unless the claimant undergoes a DIME on the issue of MMI. A hearing on the issue of MMI may not take place until the finding of the DIME physician has been filed. Section 8-42-107(8)(b)(III), C.R.S. 2001; Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996).
Nevertheless, in Story v. Industrial Claim Appeals Office, supra, the Court of Appeals held that under the plain language of §8-43-404(5)(a), C.R.S. 2001, a claimant may procure permission “at any time” to have a change of physician. Thus, in Story, the court concluded the claimant may seek a change of physician after having reached MMI for the purpose of receiving ongoing medical benefits under Grover v. Industrial Commission, supra. However, the court also held that under § 8-42-107(8)(b) an ALJ lacks jurisdiction to authorize a change of physician, after the treating physician has placed the claimant at MMI, “for purposes of obtaining treatment to further cure [the claimant’s] injury, to reach MMI, or to obtain reinstatement of temporary total disability benefits.” 910 P.2d at 82.
Here, we perceive no violation of the principles announced in Story. The claimant sought a change of physician, after having been placed at MMI by the treating physician, for the purpose of providing Grover
medical benefits. Indeed, in February 2000 the treating physician indicated that Grover-style medical treatment might be needed to monitor the claimant’s medications, and the ALJ subsequently awarded specifi Grover medical benefits. The mere fact the claimant personally believed she received inadequate treatment and was not at MMI for her neck condition did not establish a legal challenge to the treating physician’s finding of MMI. Rather, as we understand the ALJ’s order, this evidence was considered together with other factors tending to establish a breakdown in the relationship between the claimant and the treating physician. Thus, the claimant’s beliefs concerning the adequacy of her treatment were relevant to the issue of whether a change of physician was appropriate. Moreover, the respondents do not point to any treatment which the claimant is seeking for the purpose of improving or curing her condition, nor has the claimant sought temporary disability benefits pending the receipt of additional treatment. To the contrary, the record reveals the claimant proceeded to a hearing on permanent disability benefits, which the ALJ awarded in the order dated October 31, 2000.
Neither do we perceive any error in the ALJ’s reliance on the representation of claimant’s counsel concerning the reason the claimant was requesting a change of physician. We agree with the claimant that counsel’s representation amounted to a judicial admission that the claimant was not seeking additional treatment to improve her condition, or for the purpose of receiving temporary disability benefits. As such, the ALJ properly relied on this representation as establishing the scope of the claimant’s request was limited to Grover medical benefits. See Schlage Lock v. Lahr, 870 P.2d 615 (Colo.App. 1993).
Because we find the respondents’ appeal is not lacking in factual or legal foundation, we deny the claimants’ request for attorney fees.
IT IS THEREFORE ORDERED that the ALJ’s orders dated May 18, 2000, and March 22, 2001, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 18, 2002 to the following parties:
Tammy Dimitt, 2445 Mesa Ave., Grand Junction, CO 81504
Rick Sinner, A P Services/Prime Cut Meat Market, 1960 N. 12th St., Grand Junction, CO 81501
AIU Insurance Company, Tina Gustafson, AIG Claim Services, Inc., P. O. Box 32130, Phoenix, AZ 85064
Christopher Seidman, Esq., P. O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Craig P. Henderson, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy