W.C. No. 4-155-609Industrial Claim Appeals Office.
September 20, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Wells (ALJ) which ordered a retroactive change in the authorized treating physician. The claimant seeks review of that portion of the order in which the ALJ refused to authorized chiropractic treatment prior to June 16, 1993. We reverse the retroactive authorization, and affirm the denial of the chiropractic treatment before June 16.
The ALJ’s findings may be summarized as follows. The claimant sustained an industrial injury on November 2, 1992. The authorized treating physician, designated by the respondents, was Dr. Joshi. However, without authorization, the claimant also obtained treatment with a chiropractor, Dr. Knobbs.
On June 16, 1993, the claimant applied for a hearing on the issue of changing the authorized treating physician, by authorizing Dr. Knobbs. The hearing was set for October 13, 1993, but was continued because the ALJ found that one of the respondent-insurer’s employees failed to honor a subpoena.
In the interim, on July 20, 1993, Dr. Joshi issued a “Physician’s Supplemental Report” stating that the claimant was released from treatment and could return to her former employment without evidence of permanent impairment. In August 1994, the claimant was examined by Dr. Hall. Dr. Hall opined that the claimant needs additional treatment in the form of “a series of trigger point injections to try and cure and relieve the work-related injury.”
The matter proceeded to a second hearing on September 20, 1994, and the ALJ entered his order on October 14, 1994. The ALJ stated that he was persuaded by Dr. Hall’s “approach” and adopted it as the claimant’s “future treatment plan.” Thus, the ALJ authorized Dr. Hall from August 16, 1994 “and continuing.” The ALJ also concluded that Dr. Knobbs should be retroactively authorized from June 16, 1993, the date of the claimant’s initial application for hearing. However, the ALJ declined to authorized Dr. Knobbs prior to June 16.
On review, the respondents contend that the ALJ erred in ordering any change in the authorized treating physician. They argue that the ALJ could not address this issue because Dr. Joshi declared the claimant to be at maximum medical improvement (MMI) on July 20, 1993, and the claimant failed to seek an independent medical examination (IME) under § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.). We agree with this argument.
MMI exists when “any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment is reasonably expected to improve the condition.” Section 8-40-201(11.5), C.R.S. (1995 Cum. Supp.). Pursuant to § 8-42-107(8)(b), the “authorized treating physician who has provided the primary care shall determine when the injured employee reaches maximum medical improvement” as defined by § 8-40-201(11.5). In the event a party “disputes the authorized treating physician’s” determination of MMI, the parties are required to choose an IME physician, or request the Division to select an IME physician. The IME physician’s opinion concerning MMI is binding unless overcome by clear and convincing evidence. The Court of Appeals has held that the purpose of this statutory scheme is to reduce litigation over the issue of MMI and related matters. Colorado AFL-CIO v. Donlon, 914 P.2d 396
(Colo.App. 1995).
In view of this statutory scheme we have held that once the authorized treating physician renders an opinion that a claimant has reached MMI, the claimant is not free to circumvent the IME procedure by requesting a change of physician under § 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.). See Story v. Fresh Express, W.C. No. 4-135-838, February 24, 1995; Johanningsmeier v. Swedish Medical Center, W.C. No. 4-115-315, October 27, 1994. The rationale for these decisions is that a contrary holding would eviscerate the IME procedure and undercut the authorized treating physician’s authority to determine MMI. However, as argued by the claimant, in all of our prior cases the claimant’s request for a change of physician occurre after the authorized treating physician issued an opinion on MMI.
Nevertheless, we hold that the result is no different if the claimant has requested, but not received, permission to change physicians prior to the date the treating physician issues an opinion on MMI. Under §8-43-404(5)(a), the Division of Workers’ Compensation (Division) cannot authorize a change of physicians until a “proper showing” has been made. The claimant’s arguments notwithstanding, this provision has been universally interpreted to mean that “authorization” is not complete until ordered by the Division or ALJ, and therefore, respondents are not liable to pay for unauthorized treatment obtained prior to the time the order is entered. See Consolidated Landscape v. Industrial Claim Appeals Office, 883 P.2d 571 (Colo.App. 1994); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985); Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
It follows that the ALJ erred in determining that Dr. Knobbs became authorized on the date the claimant applied for a hearing in June 1993, and correctly ruled that Knobbs was not previously authorized. Further, even if we were to assume that equitable principles might allow the ALJ to authorize Dr. Knobbs as of the October 1993 hearing, this date was after
Dr. Joshi determined that the claimant reached MMI. Further, the ALJ did not purport to authorize Dr. Hall until well after Dr. Joshi’s MMI opinion.
It follows that the ALJ erred in ordering a change in the authorized treating physician at any time before or after July 20, 1993. In effect, the claimant is seeking to contest Dr. Joshi’s determination that the injury-related condition is stable and nothing further in the way of treatment will improve it. Further, since Dr. Joshi was the only authorized treating physician at the time he issued the MMI opinion, the IME provisions of § 8-42-107(8)(b) were triggered prior to any change. It follows that we necessarily reject the claimant’s assertion that the ALJ had authority to authorize Dr. Knobbs prior to the date of the June 1993 application for hearing.
We need not consider the respondents’ other arguments in view of this disposition.
IT IS THEREFORE ORDERED that the ALJ’s order, dated October 14, 1994, is reversed insofar as it authorized a change in the treating physician.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 20, 1995 to the following parties:
Latonya Edelen, 3830 Patrick Dr., Apt. 26, Colorado Springs, CO 80916
BCW Enterprises, Ltd., 1617 Bonforte Blvd., Pueblo, CO 81001-1602
Colorado Compensation Insurance Authority, Attn: Legal Dept. (Interagency Mail)
Steven U. Mullens, Esq., 90 S. Cascade Ave., #300, P.O. Box 2940, Colorado Springs, CO 80901-2940 (For the Claimant)
Douglas P. Ruegsegger, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701, (For the Respondents)
By: ___________________________