W.C. No. 4-124-094Industrial Claim Appeals Office.
April 9, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) insofar as it determined that the claimant reached maximum medical improvement (MMI) on May 5, 1994, and denied temporary disability benefits after that date. We affirm.
The ALJ’s findings of fact may be summarized as follows. The claimant sustained a back injury on January 20, 1992. The employer referred the claimant to the Colorado Springs Medical Center where Dr. Ruth M. Light first examined and provided treatment to the claimant. During the course of treatment, Dr. Light referred the claimant to various other physicians, including Dr. Kurica.
The ALJ found that Dr. Kurica “first saw” the claimant “in pre-operative consultation” on December 1, 1992, and performed back surgery on December 17, 1992. Dr. Kurica then “conducted follow-up supervision of claimant.”
The ALJ also found that on March 10, 1994, Dr. Light “ordered continuing physical therapy” and other treatments to be “supervised by Dr. Kurica.” In the March 10 report, Dr. Light noted that Dr. Kurica “anticipated MMI in April, 1994.”
On March 28, 1994, Dr. Kurica issued a letter stating that he had not seen the claimant “specifically” since January 15, 1993 and stating that Dr. Light “has been following him and doing an excellent job managing his problem through this interval.” Dr. Kurica opined that the claimant would be at MMI once he finished a “conditioning” program.
On May 11, 1994, Dr. Light reported that the claimant reached MMI on May 5, 1994. Dr. Light recommended continuing care with Dr. Kurica, as well as ongoing psychological counseling.
Under these circumstances, the ALJ determined that Dr. Light was the claimant’s “primary authorized treating physician,” and that Dr. Kurica “became a consulting physician for the purposes of performing surgery and supervising recuperation from surgery.” Finding that Dr. Light “retained control of claimant’s medical treatment throughout the course of [the] treatment,” the ALJ concluded that the claimant reached MMI on May 4. Therefore, the ALJ denied the claimant’s request for temporary total disability benefits after that date.
Initially, we note that Dr. Light’s report of MMI was utilized to terminate the claimant’s temporary disability benefits. Under such circumstances, we have concluded that the claimant is entitled to a hearing concerning the identity of the authorized treating physician without obtaining an IME under § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.). See Carreon v. Monfort, Inc., W.C. No. 4-140-621 and 4-195-162, December 19, 1994; § 8-43-301(2), C.R.S. (1995 Cum. Supp.).
I.
On review, the claimant makes several related arguments concerning the ALJ’s reliance on Dr. Light’s report of MMI. The claimant asserts that the ALJ erred as a matter of law because, in applying § 8-42-107(8)(b), the ALJ substituted the term “primary authorized physician” for the term “authorized treating physician who has provided the primary care.” Moreover, the claimant asserts that the evidence unequivocally establishes that Dr. Kurica became the physician providing the claimant’s primary care. Therefore, the claimant argues that Dr. Light’s report of MMI is not relevant. We reject these arguments.
It is true that, under § 8-42-107(8)(b), “the authorized treating physician who has provided the primary care” determines MMI in the first instance. Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). We have previously held that determining the identity of the physician “who has provided the primary care” is a question of fact for the ALJ. Eg. Martinez v. Meadow Gold Dairy Products, W.C. No. 3-105-407, September 12, 1995; Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327, June 23, 1995.
Because the issue is factual, we must uphold the ALJ’s determination that Dr. Light was the claimant’s authorized treating physician providing the primary care if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying the substantial evidence test we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993).
The claimant’s arguments notwithstanding, the record contains substantial evidence to support the ALJ’s determination that Dr. Light was providing the primary care. It may be true, as the claimant argues, that Dr. Kurica performed the greater number of procedures and prescribed the greater amount medication after the surgery. However, the record also reflects that Dr. Light continued to monitor the claimant’s treatment and recovery throughout the entire process. Moreover, as the ALJ noted, Dr. Kurica’s clinic note of December 1, 1992 indicates that he considered Dr. Light to be the “primary physician for this injury.” Dr. Kurica’s letter of March 28 also supports the ALJ’s finding that Dr. Light was the physician providing the primary care.
Under these circumstances, there was no error in the ALJ’s order. The ALJ’s decision was not based on any confusion concerning the law, but on her factual determination that overall direction of the claimant’s treatment was in the hands of Dr. Light, not Dr. Kurica.
The claimant has also argued that there has been no determination of MMI by the physician treating the “psychological” aspect of the injury. However, we believe it implicit in the ALJ’s order that she did not consider the treatment for the psychological condition to fall outside the overall control of Dr. Light. This conclusion is supported by the fact that Dr. Light was aware of the psychological treatment, and recommended that it continue for a period of time following the determination of MMI. (Light report, May 11, 1994). Cf. Murphy v. Lower Valley Hospital Association, supra (where authorized treating physician providing primary care was providing a comprehensive approach to treatment, including psychiatric care, the physician’s opinion concerning MMI was not vitiated by recommendation for additional psychiatric treatment); see also, Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (there is no inherent inconsistency between a determination of MMI and recommendation for ongoing medical treatment subsequent to MMI).
II.
The claimant next contends that alleged defects in the ALJ’s findings of fact warrant setting the order aside. We perceive no reversible error.
The claimant first contends that Finding of Fact 1 is incorrect because the claimant was examined by physician’s assistant Brumlik prior to being treated by Dr. Light. We understand the ALJ to have found that Dr. Light was the first physician to examine the claimant, not the first person. Thus, there was no error. However, even if there were an error, we would find it to be harmless.
The claimant next takes issue with Finding of Fact 3 which states that the claimant “first saw” Dr. Kurica in “preoperative consultation on December 1, 1992.” The claimant points out that the medical records demonstrate that he saw Dr. Kurica prior to December 1.
Again, the ALJ’s finding is, strictly speaking, correct. The claimant never saw Dr. Kurica in “preoperative consultation” prior to December 1, although he had been examined by Dr. Kurica prior to that date. In any event, we consider any error to be harmless since it does not affect the substantial rights of the parties.
The claimant also points out that Finding of Fact 3 is erroneous because it states that Dr. Kurica performed surgery on December 17, 1992, when in fact the surgery was not performed until March 1993. The respondents concede that this finding of fact is erroneous. However, it does not affect the substantial rights of the parties, nor did it influence the ALJ’s substantive determinations. Therefore, the error was harmless.
The claimant also contests Findings of Fact 4 insofar as it states that Dr. Light ordered continuing physical therapy, work conditioning and medications on March 10, 1994. The claimant argues that these treatments were previously ordered by Dr. Kurica.
Review of Dr. Light’s March 10, 1994 report indicates that she concurred in treatment recommendations suggested by Dr. Kurica. However, since the evidence supports the determination that Dr. Light was in overall charge of the claimant’s care, the ALJ’s finding is a plausible interpretation of the evidence.
Finally, Dr. Kurica’s March 28 letter may be incorrect insofar as it states he had not seen the claimant since January 15, 1993. However, this statement by Dr. Kurica, and the ALJ’s mention of it in the order, does not alter the pertinent findings of fact or indicate any substantial prejudice to the claimant. Therefore, again, any error was harmless.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 4, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL 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 April 9, 1996 to the following parties:
Greg Juarez, 7330 Sugar Loaf Trail, Fountain, CO 80817
Deep Rock Water, 2640 California St., Denver, CO 80205
TIG Premier Insurance Co., Attn: Lynda Jackson, P.O. Box 17005, Denver, CO 80217
Jeanne M. Labuda, Esq., 6400 S. Fiddlers Green Circle, #1270, Englewood, CO 80111
(For Respondents)
William Alexander, Esq., 3608 Galley Road, Colorado Springs, CO 80909-4349
(For the Claimant)
By: _______________________