W.C. No. 4-648-860.Industrial Claim Appeals Office.
March 21, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated November 9, 2006, that denied the claimant’s claim for penalties and for certain medical benefits. We affirm.
A hearing was held on the issues of penalties for the respondents’ alleged failure to provide medical treatment, and the claimant’s entitlement to medical benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant was employed as an over-the-road truck driver and on April 29, 2005, she injured her right shoulder, left knee, head, back and neck in a fall down some stairs. The employer referred the claimant to an emergency room, where she was examined and treated by Dr. Fleming, who order diagnostic tests and restricted the claimant from working. The claimant’s authorized treating physician, Dr. Williams, referred her for a magnetic resonance imaging scan (MRI), which revealed a rotator cuff injury with internal impingement and degenerative joint disease. Dr.Williams provided the claimant with treatment that included an injection and a referral for a course of physical therapy. Dr. Williams also referred the claimant to an orthopedic surgeon, Dr. Baughman, who opined that she was volitionally limiting the range of motion of her shoulder and that no treatment would likely help her condition. Dr. Williams examined the claim again on August 25, 2005, and noted that she refused to return to Dr. Baughman. He therefore referred her to another orthopedic surgeon, Dr. Neel and to a neurologist, Dr. Almsaddi, for evaluation of new
Page 2
headache symptoms that had recently arisen. Dr. Neel examined the claimant on September 26, 2005 and provided medical treatment that included arthroscopic surgery on her right shoulder. The insurer referred the claimant back to Dr. Williams to address her low back pain and headaches. On April 6, 2006, Dr. Williams placed her at maximum medical improvement with regard to her back problems. On February 13, 2006, Dr. Neel examined the claimant and stated that her should was healing but with a “suboptimal” range of motion. On March 13, 2006 he recommended a repeat arthroscopy; however, he stated that he would first prefer a second opinion by another orthopedic surgeon. He noted that her foot had been injected twice, but that she had some recurring symptoms, and he stated that “it might be worth considering” a consult with an orthopedic surgeon. The ALJ found that Dr. Neel’s recommendation for a second opinion from an orthopedic surgeon regarding the claimant’s shoulder was reasonable and necessary, but that the recommendation for the consultation regarding the foot was not.
Based upon the factual findings, the ALJ ordered the insurer to select an orthopedic surgeon to provide a second opinion concerning the claimant’s right shoulder condition. He denied the claimant’s request for a consultation with an orthopedic surgeon for the left foot and ankle condition and also denied penalties for the respondents’ alleged failure to provide medical care.
The claimant appealed and raises two issues. First, she argues that the ALJ abused his discretion in permitting the respondents to select an orthopedic surgeon to evaluate the claimant’s shoulder and, second, she argues that the evaluation for her foot and ankle is reasonable and necessary and should have been ordered by the ALJ. We are unpersuaded that the ALJ committed any reversible error.
We disagree with the claimant’s argument that the ALJ was compelled to conclude that Dr. Neel wished to refer the claimant for a consultation with “a doctor of his choosing.” Claimant’s Brief in Support of Petition to Review at 2 (unpaginated) (emphasis in original). Nor do we dispute the claimant’s general statement of the law in this area. An employer is liable for medical expenses when, as part of the normal progression of authorized treatment, an authorized treating physician refers the claimant to other providers for additional services. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). A referral may be made either orally or in writing, and the question of whether a referral was made is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). A referral is not invalid simply because it is “general” rather than “specific” in nature Eckard v. Weatherford International, Inc., W.C. No. 3-796-220 (August 29, 1988).
Page 3
However, here we do not understand Dr. Neel to have made a specific referral to a specific medical provider for purposes of the “second opinion” he thought advisable prior to any further surgery. Indeed, it is a reasonable inference from this factual record that Dr. Neel had no specific surgeon in mind when he recommended another consultation. He referred only generally to “a second opinion” as a possible “[t]reatment option” and specifically stated only that he would “prefer” such a course prior to his performing a repeat arthroscopy: “For my piece (sic) of mind, I’d prefer a second opinion first, and if another consulting surgeon believes a second look arthroscopy is in order, then I would be happy to perform the surgery, or it could be done by a different surgeon.” Report of Alex Neel, M.D. at 1 (March 13, 2006). The ALJ could certainly plausibly infer from Dr. Neel’s statements that the doctor was not referring the claimant to any particular surgeon for the second opinion, that he was indifferent regarding that surgeon’s identity, and that he had no preference concerning the respondents’ designation of a surgeon to perform the evaluation. Although Dr. Neel’s statements were subject to varying inferences, it is the ALJ’s sole responsibility to weigh the evidence and resolve the conflicts, and we must defer to the ALJ’s determinations. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Here, the ALJ’s construction of Dr. Neel’s report is a reasonable one and we are not persuaded to disturb his order permitting the insurer to designate a physician to examine the claimant and render the second opinion.
In her brief the claimant has listed as an issue presented for review whether the referral for an evaluation of the claimant’s foot and ankle pain is reasonable and necessary. However, she has presented no argument in support of her presumed position that, contrary to the ALJ’s conclusion, such an evaluation is reasonable and necessary. The absence of any argument renders our review limited, for it forces us to speculate regarding the alleged errors committed by the ALJ.
In any event, we have reviewed the record and perceive no basis on which to set aside the ALJ’s order. Under § 8-42-101(1)(a), C.R.S. 2006, the respondents are liable for medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). The question of whether a proposed treatment is reasonable and necessary, is one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002) Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251
(Colo.App. 1999). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995).
Page 4
Under this standard of review it is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
Here, the ALJ’s inference that Dr. Neel’s referral for an evaluation of the claimant’s foot and ankle pain was “equivocal and speculative” is a reasonable inference from the record. As the ALJ noted, Dr. Neel stated that such an evaluation “might be worth considering.” The ALJ could plausibly read that statement as an indication from Dr. Neel that he believed that such an evaluation would not likely be fruitful, but that it “might” result in some benefit to the claimant. Under these circumstances, we are not persuaded to disturb the ALJ’s conclusion that the claimant failed to carry her burden of showing entitlement to the disputed medical treatment.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 9, 2006, is otherwise affirmed
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Page 5
Patricia Kirk, Turpin, OK, Navajo Express, Inc., Denver, CO, Liberty Mutual, Sherry Martin, Irving, TX, Ligita S. Bardulis, Esq., Littleton, CO, (For Claimant).
McElroy, Duetsch, Mulvaney Carpenter, LLP, Katherine Markheim Lee, Esq., Broadway, Denver, CO, (For Respondents).
Page 1