W.C. No. 4-308-553Industrial Claim Appeals Office.
April 10, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ), which terminated his temporary disability benefits on March 15, 1991, and denied his claim for additional medical benefits. We affirm.
The ALJ found that the claimant sustained a compensable back injury on March 13, 1990. In August 1990, the claimant underwent surgery by Dr. Litvak to repair a disk intrusion at the L1-2 level. Dr. Litvak released the claimant from care and returned him to “regular work” by September 1990. Further, on March 15, 1991, Dr. Litvak opined that the claimant suffered a ten percent permanent partial disability as a result of the injury.
In 1994, the claimant sought additional treatment for back pain which radiated around the waistline and into his legs. Dr. Shogan examined the claimant on December 22, 1994, and noted that an MRI revealed “ventral defects” of the L3-4 and L4-5 levels. Dr. Shogan was “uncertain as to the exact etiology of these” defects, but reported the “area of the [claimant’s] previous lumbar surgery does not reveal any significant abnormality.”
Under these circumstances, the ALJ found that the claimant reached maximum medical improvement (MMI) from the industrial injury on March 15, 1991, and denied the claim for temporary total and temporary partial disability benefits after that date. In addition, the ALJ denied the claim for medical benefits after March 15, 1991. The ALJ found that the claimant failed to prove the back pain and spinal problems identified by Dr. Young and Dr. Shogan were a “natural and proximate result” of the March 1990 injury. In support of this determination, the ALJ noted that Dr. Shogan expressed doubts concerning the etiology of the claimant’s problems, and noted the claimant had a low back condition which predated the March 1990 injury.
Additionally, the ALJ determined that physicians who treated the claimant after Dr. Litvak were not authorized. These physicians included Dr. Young, Dr. Shogan and Dr. Lowrance.
I.
On review, the claimant first contends the ALJ erred in determining that he reached MMI on March 15, 1991. The claimant argues he was not at MMI because there was a recommendation for physical therapy (apparently by Dr. Baumgartner). He also asserts the ALJ should not have relied on the opinion of Dr. Litvak, the surgeon, concerning whether additional treatment was needed. We are not persuaded.
Former § 8-42-105, C.R.S. (1990 Cum. Supp.), provides that “temporary total disability benefits shall cease when the employee reaches maximum improvement from medical care.” Although that statute does not define MMI, the applicable case law states that MMI exists “when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition.” Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080 (Colo.App. 1990). A finding of MMI is not proper where the claimant is willing to undergo a course of medical treatment which has a reasonable prospect for improving his condition. Reynolds v. Industrial Claim Appeals Office supra. However, determination of MMI is a factual matter for the ALJ. See Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16
(Colo.App. 1995).
By March 15, 1991, the claimant’s treating surgeon had released him from care and assessed a permanent impairment rating. The surgeon’s willingness to assign a permanent impairment rating reflects his opinion that the claimant was stable and that nothing further in the way of treatment was likely to improve the condition. See Golden Animal Hospital v. Horton, 897 P.2d 833
(Colo. 1995) (permanent disability is determined at MMI). Moreover, the surgeon reported the claimant was essentially symptom free as of March 15, 1991. Although the claimant was being treated for osteopenia, Dr. Litvak stated this condition was not related to the injury. Thus, the evidence fully supports the ALJ’s finding of MMI on that date.
The claimant relies on a report or reports of Dr. Baumgartner issued subsequent to March 15, 1991. The claimant asserts that these reports contain recommendations for additional treatment. (Claimant’s Brief, p. 3). However, we are unable to locate such reports in the file, and therefore, may not consider them on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995).
In any event, a claimant may continue to receive palliative or maintenance care subsequent to MMI. Thus, the mere fact that the claimant receives additional treatment after MMI does not necessarily vitiate a finding of MMI. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
II.
The claimant next contends that the ALJ erred in denying the claim for medical treatment after the date of MMI. The claimant argues the ALJ incorrectly placed the burden of proof on him to establish a causal relationship between the injury and the need for treatment. The claimant reasons that, because he proved a compensable injury in 1990, it was the respondents’ burden to prove that the need for additional treatment was caused by some intervening injury. The claimant also asserts there is no evidence in the record to support the conclusion that his need for treatment is unrelated to the 1990 injury. We reject these arguments.
The claimant’s contention notwithstanding, the mere fact that he proved the occurrence of an industrial injury did not excuse him from proving that subsequent requests for medical treatment were causally connected to the injury. To the contrary, respondents may dispute whether specific post-injury medical treatment is causally related to the injury, and the claimant retains the burden of proof to establish the causal relationship See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997).
We do not disagree with the claimant’s position that respondents are liable for “natural and proximate” consequences of an industrial injury. Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970). However, the question of whether the claimant proved that a particular condition is a natural and proximate result of an industrial injury is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). In determining whether the claimant satisfied his burden of proof, it is the ALJ’s province to assess the weight and credibility of the evidence, as well as the inferences to be drawn therefrom. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). If the ALJ’s findings are supported by substantial evidence in the record, they must be upheld on review. Section 8-43-301(8), C.R.S. 1997.
Here, the ALJ found the claimant failed to prove the requisite causal relationship between the 1990 injury and the need for treatment in 1994. Specifically, the ALJ noted the claimant had a preexisting back condition. This finding is supported by evidence that the claimant had received treatment for back pain approximately two years before the industrial injury. Moreover, the MRI conducted at the time of the 1990 injury demonstrated the claimant had degenerative disk disease which was present at the L4-5 level. Moreover, in 1994, Dr. Shogan was unwilling to take a position concerning the etiology of the claimant’s back pain. However, Dr. Shogan did observe that the site of the injury-related surgery was stable.
Under these circumstances, the record contains substantial evidence from which the ALJ could find that the claimant failed to carry his burden of proof. The record supports an inference that the claimant’s 1994 problems were the product of an ongoing degenerative disk disease which pre-dated, and was uninfluenced by, the 1990 injury. Admittedly, the record contains some evidence, including the report of Dr. Davis and the claimant’s testimony, from which the ALJ might have inferred a relationship between the injury and the 1994 problems. However, it was for the ALJ to assess this evidence, and we decline the claimant’s invitation to substitute our judgment for the ALJ’s concerning the inferences to be drawn from the record. See May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
III.
Claimant next contends that the ALJ erred in finding that Dr. Young, Dr. Lowrance and Dr. Shogan were not authorized treating physicians. In support, the claimant cites his testimony that after Dr. Litvak retired he was unable to see Dr. Litvak’s partners. (Tr. p. 26). The claimant also asserts that he was entitled to a new physician because he moved from Denver to Pueblo. We find no error.
Initially, we note the authorization issue is moot. Since the ALJ found the treatment provided by these physicians was not causally related to the industrial injury, it is immaterial whether or not they were “authorized.” See Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993) (authorization concerns legal authority to treat and is a separate issue from the reasonableness and necessity for treatment).
In any event, § 8-43-404(5)(a), C.R.S. 1997, sets forth a procedure to be followed when a claimant desires a change in the authorized treating physician. The claimant may not change physicians or retain the services of additional physicians without obtaining permission of the insurer or the Division in accordance with the statute. Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973). An exception to this rule exists where the claimant must obtain emergency treatment and lacks sufficient time to provide notice to the employer or insurer. See Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Here, there is no evidence the claimant sought permission from the respondents or the Division prior to retaining the services of the additional physicians. Neither is there any indication that Dr. Litvak’s retirement and the claimant’s move constituted “emergencies” which precluded the claimant from obtaining permission prior to hiring additional physicians.
We recognize the claimant testified that after Dr. Litvak retired he was unable to “get in to see” the partners who took over Dr. Litvak’s cases. However, it is impossible to determine from this statement whether these physicians were refusing to see the claimant, or the claimant did not have enough time to go to the doctor. In any event, the claimant was required to pursue the statutory methods for obtaining a new physician rather than hiring the physicians without permission.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 18, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed April 10, 1998 to the following parties:
Robert L. Murphy, 3 Yale Avenue, Pueblo, CO 81005
Industrial Mfg. Installation, 3761 Norwood Dr., Littleton, CO 80125-9775
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Steven U. Mullens, Esq., 1401 Court St., Pueblo, CO 81003 (For the Claimant)
By: __________________________________________________