W.C. No. 4-250-651Industrial Claim Appeals Office.
November 27, 2000
FINAL ORDER
The claimant and the respondent separately petition for review of an order of Administrative Law Judge Mattoon (ALJ). The respondent contends the evidence does not support the ALJ’s order reopening the claim. The claimant contests the ALJ’s denial of certain medical benefits. We affirm.
On March 5, 1995, the claimant suffered a compensable right hand injury. Dr. Berg diagnosed “epicondylitis/tendinitis/contusion” to the right forearm. On July 25, 1995, Dr. Berg released the claimant to return to regular employment and placed the claimant at maximum medical improvement (MMI) with no permanent medical impairment. The claim was closed by the respondent’s filing of an uncontested Final Admission of Liability dated August 17, 1995.
After MMI, the claimant continued to suffer pain in her right arm. She returned to Dr. Berg, but Dr. Berg refused to provide further treatment because the claim was closed. Thereafter, the claimant sought treatment at the Arkansas Valley Regional Medical Center. On February 14, 1997, the claimant was examined by Dr. Lussenhop. Dr. Lussenhop requested permission from the respondent to treat the industrial injury. However, the respondent instructed the claimant to return to Dr. Berg for further evaluation. The claimant did not return to Dr. Berg.
On August 10, 1998, the claimant was examined by Dr. Farrier, who opined that the claimant’s pain was moving up the arm to the claimant’s shoulder and neck. Relying on Dr. Farrier’s report, the claimant petitioned to reopen the claim and alleged a change of condition.
At the hearing, the claimant testified that she has pain which extends from her hands to her shoulder, the side of her face and her neck. (Tr. p. 16). The claimant also stated that the pain is “a lot worse” than it was at the time of MMI. (Tr. pp. 16, 29).
Implicitly crediting Dr. Farrier’s opinions, the ALJ found the claimant’s condition worsened after MMI. Therefore, the ALJ reopened the claim and ordered the respondent to provide additional medical benefits. However, the ALJ found that the Arkansas Valley Regional Medical Center, Dr. Lussenhop, and Dr. Farrier are not authorized treating physicians. Consequently, the ALJ determined the respondent has no liability for the medical expenses incurred by the claimant with these providers.
I.
On review, the respondent contends the record does not establish a change of condition. In support, the respondent relies on Dr. Farrier’s August 11, 1997 report, in which he opined that the claimant is “no better nor any worse” than she was at MMI. The respondent also contends Dr. Berg found no injury beyond the claimant’s hand and elbow, and the claimant waived the right to object to Dr. Berg’s opinions by failing to request a Division-sponsored independent medical examination (DIME) under the provisions of § 8-42-107(8), C.R.S. 2000. We perceive no reversible error.
Section 8-43-303(1), C.R.S. 2000 allows the ALJ to reopen a claim based on a “change of condition.” A “change of condition” refers to a change in the condition of the original compensable injury. Chavez v. Industrial Commission, 714 P.2d 1328
(Colo.App. 1985).
The determination of whether to reopen a claim is discretionary with the ALJ. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). We may not disturb the ALJ’s determination in the absence of fraud or an abuse of discretion Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). The standard on appeal of an alleged abuse of discretion is whether the ALJ’s determination exceeds the bounds of reason, as where it is contrary to the evidence or the applicable law Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993) Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
In determining whether the ALJ’s findings of fact are supported by the evidence, we must defer to the ALJ’s credibility determinations, and the probative weight she afforded the evidence found persuasive. ee Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Furthermore, insofar as the evidence is subject to conflicting inferences, we are bound by the ALJ’s plausible inferences from the evidence. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
The respondent’s arguments notwithstanding, there is substantial evidence in the claimant’s testimony and Dr. Farrier’s report dated August 10, 1998, to support the ALJ’s finding that the claimant suffered a worsening of her condition from the industrial injury. Dr Farrier noted the claimant’s complaints of pain moving up into the shoulder and neck. Furthermore, for the first time since the industrial injury, nerve conduction studies performed by Dr. Farrier on January 12, 1998, revealed a slight abnormality. The existence of contrary evidence is immaterial on review. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Consequently, we cannot say the ALJ abused his discretion by reopening the claim.
Furthermore, the IME provisions of § 8-42-107(8) do not apply where the claimant alleges a worsening of condition after MMI See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997); Manarik v. Keebler Co., W.C. No. 4-343-955 (October 9, 1998). This is true because the claimant can reach MMI, but suffer a subsequent deterioration to the point that she is no longer at MMI and requires further treatment. See El Paso County Department of Social Services v. Donn, 865 P.2d 877
(Colo.App. 1993); Donohoe v. ENT Federal Credit Union, W.C. No. 4-171-210 (September 15, 1995). Consequently, the claimant did not waive the right to request additional medical treatment due to a worsened condition by failing to request a DIME to dispute Dr. Berg’s zero impairment rating and finding of MMI.
II.
The claimant contends that because Dr. Berg refused to provide further treatment after MMI, she had the right to select a treating physician. Consequently, the claimant argues the ALJ erred in finding that the disputed medical treatment was unauthorized. We disagree.
The respondent is only liable for authorized or emergency medical treatment. See § 8-42-101(1), C.R.S. 2000; Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973). Section 8-43-404(5)(a), C.R.S. 2000, affords the respondent the right, in the first instance, to select a physician to treat the industrial injury. Once the respondent has exercised the right to select a treating physician, the claimant may not change physicians without permission from the insurer or an ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570
(Colo.App. 1996); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990).
We adhere to our prior conclusions that when a claim has been closed, and the claimant seeks to reopen based on a worsened condition, the claimant is obligated to notify the respondent of her desire for additional treatment prior to obtaining the services of a physician. See Dodge v. Burns International Security, W.C. No. 3-935-989 (December 10, 1993), citing TRW-EPI v. Industrial Claim Appeals Office, (Colo.App. No. 91CA0575, December 19, 1991) (not selected for publication) (once case was closed, respondents no longer had duty to provide medical care, but were required to tender a physician upon notice of a petition to reopen). This is true because MMI terminates the claimant’s right to all benefits, including medical benefits, unless continuing medical benefits are ordered at the time permanent disability is determined. Therefore, the burden is upon the claimant to give notice to the employer that additional benefits are sought, and such notice triggers the respondent’s duty to designate an authorized treating physician. The right to select the physician passes to the claimant only if the respondent fails to authorize a physician upon notice the claimant seeks to reopen the claim. See Wright v. City and County of Denver, W.C. No. 4- 172-294 (December 4, 1995); Mathis v. Hildebrand Care Center, W.C. No. 3-744-785, (November 30, 1987), aff’d., Hildebrand Care Center v. Mathis (Colo.App. No. 87CA1922, July 28, 1988) (not selected for publication).
We do not disagree with the claimant’s argument that §8-43-404(5) implicitly contemplates that the respondent will designate a physician who is willing to provide treatment. See Ruybal v. University Health Sciences Center, 768 P.2d 1259
(Colo.App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication). Therefore, if the physician selected by the respondent refuses to treat the claimant for non-medical reasons, and the respondent fails to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized. See Ruybal v. University Health Sciences Center, supra; Teledyne Water Pic v. Industrial Claim Appeals Office, supra; Buhrmann v. University of Colorado Health Sciences Center, W.C. No. 4-253-689 (November 4, 1996); Ragan v Dominion Services, Inc., W.C. No. 4-127-475, (September 3, 1993).
However, whether the claimant notified the respondent of her request to reopen the claim prior to the selection of a treating physician, and whether the respondent designated a physician who was willing to treat the worsened condition are questions of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra. Consequently, we are bound by the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
The ALJ found that upon notice of the claimant’s request to reopen the claim, the respondent’s designated Dr. Berg as the treating physician. The ALJ also found the respondent’s adjuster repeatedly instructed the claimant to make an appointment with Dr. Berg if the claimant wanted to reopen the claim. The ALJ’s findings are supported by substantial evidence in the record and therefore, must be upheld.
The ALJ rejected the claimant’s contentions that the respondent’s referral was ineffective because Dr. Berg previously refused to provide additional treatment and the respondent’s adjuster did not expressly notify the claimant that Dr. Berg was permitted to reexamine the claimant. In support, the ALJ relied on the claimant’s admission that she received, but did not read the respondent’s letter dated February 2, 1997, where she was expressly instructed to make an appointment with Dr. Berg. (Tr. pp. 24,-25). Instead, the ALJ found the respondent gave the claimant “repeated, reasonable and clear directions” to return to Dr. Berg. The ALJ’s findings of fact support the conclusion the claimant was not free to select a treating physician. Consequently, the ALJ correctly determined that medical treatment not rendered by Dr. Berg and her referrals was unauthorized.
The claimant’s further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 23, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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. 2000. 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 November 27, 2000 to the following parties:
Georgia Gonzales, 16336 County Road G, Ordway, CO 81063
Scott Nelson, NHA, Crowley County Nursing Center, 401 Idaho Ave., P. O. Box 488, Ordway, CO 81063
Sharon Thompson, Support Services, Inc., P. O. Box 3513, Englewood, CO 80155-3513
Joseph W. Ruppert, Esq., 226 W. “B” St., P. O. Box 8087, Pueblo, CO 81008 (For Claimant)
William A. Richardson, Esq., 400 Sussex Building, 1430 Larimer Square, Denver, CO 80202 (For Respondent)
BY: A. Pendroy