W.C. No. 4-237-985Industrial Claim Appeals Office.
January 8, 1999
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Rumler (ALJ) which awarded temporary disability and medical benefits. We affirm.
The ALJ’s pertinent findings of fact may be summarized as follows. The claimant suffered a compensable right knee injury in 1994 while working for the respondent, and subsequently underwent arthroscopic surgery by Dr. Robinson. In March 1995, Dr. Robinson determined the claimant to be at maximum medical improvement (MMI). In June 1995 the claimant was laid off by the respondent, and began working for United Airlines. Thereafter, the claimant suffered ongoing, intermittent problems with his right knee including pain, occasional “giving way,” the need to use a knee brace, and a significant limp which caused the claimant to develop back problems. On May 2, 1997, the claimant’s right knee gave out causing him to fall and sustain further injury.
On May 7, 1997, the claimant made an appointment to see Dr. Robinson but was refused treatment because the respondent had not authorized further treatment. On May 9 the claimant sought emergency treatment for his right knee at the Aurora Regional Medical Center (Aurora), and was referred to Dr. Weinerman, where he was treated the same day.
On May 13, 1997, the respondent refused to authorize additional treatment by Dr. Robinson until the claimant attended an independent medical examination (IME) with Dr. Primack. Following the IME, the respondent refused to authorize any further treatment. The claimant subsequently sought treatment from his personal physician who referred him to Dr. Urban. On August 7, 1997, Dr. Urban performed a repeat arthroscopy and tibial osteotomy.
Based upon these findings, the ALJ determined that Dr. Weinerman’s May 9 treatment was emergency treatment for which the respondent is liable. The ALJ also determined that Dr. Urban is an authorized treating physician and that the respondent is liable for Dr. Urban’s treatment.
Further, the ALJ found that the claimant’s right knee condition precluded the claimant from returning to his job at United Airlines after May 12, 1997, and would have prevented him performing his regular employment with the respondent. Therefore, the ALJ awarded additional temporary disability benefits commencing May 12, 1997.
I.
On review, the respondent notes that neither party requested a Division-sponsored IME to dispute Dr. Robinson’s finding of MMI. Therefore, the respondent contends that the ALJ exceeded his authority in hearing the claims for additional temporary disability and medical benefits. We disagree.
As argued by the respondent, MMI terminates the claimant’s entitlement to temporary disability benefits and medical benefits, except medical benefits designed to maintain or prevent a deterioration of the claimant’s condition. Section 8-42-105(3)(a), C.R.S. 1998; Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Burns v. Robinson Dairy, Inc., 911 P.2d 661
(Colo.App. 1995). Section 8-42-107(8)(b)(II), C.R.S. 1998 provides that an attending physician shall make the initial determination of MMI, and that if either party disputes that determination the ALJ may not hold a hearing on the issue of MMI until the claimant has undergone a Division-sponsored IME. Furthermore, a claim for additional medical benefits designed to improve the claimant’s condition constitutes a constructive challenge to the determination of MMI. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
However, the IME provisions of § 8-42-107(8)(b) 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); Weber v. Mesa County Sheriff’s Dept., W.C. No. 3-113-179 28, 1998). This is true because the claimant can reach MMI and suffer a subsequent deterioration to the point that he 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).
Here, the ALJ found that the claimant’s condition worsened after March 1995 and that as of May 1997 the claimant was no longer at MMI. The ALJ’s determination is supported by substantial medical evidence, and therefore must be upheld. Section 8-43-301(8), C.R.S. 1998. Consequently, a Division-sponsored IME was not required prior to the hearing on the claims for additional temporary disability benefits.
Moreover, in view of the ALJ’s finding that the claimant was not at MMI as of May 12, 1997, the March 1995 determination of MMI did not preclude the ALJ from awarding additional temporary total disability benefits. Therefore, the respondent has failed to establish grounds for disturbing the award of temporary disability benefits.
II.
The respondent also contends the ALJ erred in awarding medical benefits. We disagree.
The respondent is liable for emergency and authorized treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1), C.R.S. 1998; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). Section 8-43-404(5), C.R.S. 1998, affords the insurer the right, in the first instance, to select the authorized treating physician. Once selected, the claimant is not free to change physicians except with permission from the respondent or the ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office,
931 P.2d 570 (Colo.App. 1996). However, § 8-43-404(5) implicitly contemplates that the respondent designates a physician who is willing to provide treatment. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); 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. 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).
Whether the authorized treating physician designated by the respondent has refused to treat the claimant for non-medical reasons is a question of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra. Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
The respondent asserts that the ALJ erroneously relied on “hearsay” evidence in the claimant’s testimony to find that Dr. Robinson refused to treat the claimant for non-medical reasons. Therefore, the respondent argues the ALJ erred in finding that Dr. Urban is an authorized treating physician. We perceive no reversible error.
As found by the ALJ, the record contains a letter dated May 13, 1997, from the respondent’s attorney to the claimant’s attorney in which the respondent refused to authorize “any treatment with Dr. Robinson” prior to Dr. Primack’s IME. On June 25, 1997, the claimant’s attorney requested that the respondent authorize surgery by Dr. Urban. On July 7, 1997, the respondent’s attorney refused the request and stated that the respondent had not changed it’s position on “declining” to authorize further treatment. This correspondence constitutes substantial evidence to support the ALJ’s finding that the reason Dr. Robinson refused to treat the claimant was the respondent’s refusal to authorize treatment. Consequently, any error by the ALJ in also relying on other hearsay evidence to find that Dr. Robinson refused to treat the claimant for non-medical reasons is harmless and will be disregarded. Section 8-43-310; A R Concrete Construction v. Lightener, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
Further, the ALJ’s findings support the conclusion that the right to select the treating physician passed to the claimant who selected a physician who referred him to Dr. Urban. Therefore, the ALJ did not err in finding that Dr. Urban is an authorized treating physician. See City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997) (treatment provided on referral in normal progression of authorized treatment is authorized).
The respondent also contends that the ALJ erred in awarding medical benefits in the form of “emergency treatment” by Dr. Weinerman on May 9, 1997. The respondent contends there is no evidence of a “bona fide” emergency on May 9. Again we disagree.
The May 13, 1997 letter from the respondent’s attorney stated that if the claimant requested “more immediate attention” than the IME on May 30, 1997 he should seek “emergency treatment.” Thus, the respondent implicitly defined “emergency treatment” as any treatment necessitated for the right knee prior to May 30, 1997.
The claimant testified that he sought emergency treatment due to “severe trouble with [sic] back and knee.” (Tr. p. 39). The Aurora emergency room report by Dr. Gordon states that the claimant was seen for complaints of increasing right knee pain. Furthermore, the claimant testified that the emergency room arranged for him to be immediately seen by Dr. Weinerman and he was sent directly from the emergency room to Dr. Weinerman’s office. (Tr. p. 41). The ALJ’s finding that Dr. Weinerman’s treatment was part of the “emergency” treatment provided by Aurora is a plausible inference from this evidence, and therefore, the finding must be upheld.
Nevertheless, we agree with the respondent that there is no evidence to support the ALJ’s finding that Dr. Weinerman is “an orthopedic specialist on staff at the hospital.” However, the fact that Dr. Weinerman was not part of the hospital staff does not preclude a finding that the emergency room referred the claimant to Dr. Weinerman as part of its emergency treatment. Consequently, the ALJ’s error is harmless.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 18, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed January 8, 1999
to the following parties:
Gregory A. Hix, 2777 South Newark Court, Aurora, CO 80014
Public Service of Colorado, Attn: Pam Butler, P.O. Box 840, Denver, CO 80201-0840
Joseph M. Goldhammer, Esq., 1563 Gaylord, Denver, CO 80206 (For Claimant)
Michael A. Perales, Esq., Ritsema Lyon, P.C., 999 18th Street, Suite 3100, Denver, CO 80202 (For Respondents)
BY: ____________