W.C. No. 4-150-170Industrial Claim Appeals Office.
July 20, 1995
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which granted the claimant’s request for a change in the authorized treating physician, and awarded temporary total disability benefits commencing May 10, 1993. We affirm.
This case has a complex procedural history. Review of a portion of that history is necessary to understand the appellate issues, and our resolution of those issues.
The claimant sustained a compensable injury to her back and left arm in September 1992. Eventually, the claimant came under the care of Dr. Jenks, whose primary diagnosis was reflex sympathetic dystrophy (RSD).
Dr. Jenks prescribed a course of nerve blocks as treatment for the claimant’s RSD. However, on May 10, 1993, Dr. Jenks opined that the claimant was at maximum medical improvement (MMI), and that she had a nineteen percent left upper extremity impairment. Based on this opinion, the respondent filed a final admission of liability dated May 24, 1993.
Thereafter, the claimant continued to experience difficulty with her left arm, and Dr. Jenks prescribed additional nerve blocks. The claimant did not improve, and by December 15, 1993, Dr. Jenks modified his diagnosis to total body pain of uncertain etiology, and depression.
Sometime in early 1994, the claimant asked Dr. Jenks to refer her to Dr. Rook. However, Dr. Jenks declined to do so and instead referred the claimant to the “Spaulding Clinic.” Despite this referral, Dr. Jenks stated, on March 18, 1994, that his opinions concerning the date of MMI and the claimant’s permanent impairment rating had not changed.
In March 1994, the claimant filed a Petition to Reopen Claim based upon a worsened condition. On May 31, 1994, the respondent filed a General Admission of Liability stating that it was “voluntarily reopening” the claim. However, the respondent did not admit liability for any specific temporary total disability benefits.
In June 1994, the claimant underwent evaluation at the Spaulding Center for Spine Rehabilitation. The diagnosis was “sympathetically mediated pain in both upper extremities, somatoform pain disorder, and myofacial pain.” The center recommended additional nerve conduction studies, an exercise program and a psychological evaluation.
In September 1994, the claimant was examined by Dr. Rook. Dr. Rook diagnosed RSD “versus” sympathetically maintained pain, but apparently told the claimant she had RSD. (Tr. p. 18). In addition, Dr. Rook diagnosed possible somatoform pain disorder and fibromyalgia syndrome. He recommended additional tests, a reconditioning program, and alteration of the claimant’s medications. (Tr. pp. 29-30; Rook’s report dated September 12, 1994).
Following Dr. Rook’s report in September 1994, the claimant filed an application for hearing on the issues of change of physician and temporary disability benefits. The ALJ concluded that, under the circumstances, the claimant made a “proper showing” in support of her request for a change of physician to Dr. Rook. In support of this decision, the ALJ relied upon the fact that Dr. Rook had superior experience in the treatment of RSD, Dr. Jenks failed to “stabilize or improve” the claimant’s condition, and Dr. Jenks did not wish to treat the claimant any longer.
With respect to temporary total disability benefits, the ALJ concluded that, under § 8-42-107(8)(b), C.R.S. (1994 Cum. Supp.), “MMI is determined by the authorized treating physician.” The ALJ stated that, because she ordered a change in physician to Dr. Rook, it would be Dr. Rook’s responsibility to determine MMI.
I.
On review, the respondent first contends that the ALJ erred in awarding temporary disability benefits because Dr. Jenks, the authorized treating physician, was of the opinion that the claimant was at MMI on May 10, 1993. The respondent points out that, under § 8-42-107(8)(b), a party seeking to dispute the authorized treating physician’s opinion concerning MMI is required to obtain an independent medical examination (IME) prior to a hearing on the issue. Under the circumstances of this case, we reject the respondent’s argument.
MMI is defined in § 8-40-201(11.5), C.R.S. (1994 Cum. Supp.), as the “point in time when any medically determinable physical or mental impairment as a result of injury has become stable and when no further treatment in reasonably expected to improve the condition.” The statute also states that “medical maintenance” treatment, and the possibility of improvement from the mere passage of time, do not affect a finding of MMI.
As the respondent argues, § 8-42-107(8)(b) provides that the authorized treating physician providing the primary care makes the initial determination of MMI. Further, the party seeking to dispute the authorized physician’s determination is required to seek an IME in accordance with the statute. Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995); Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995).
We have previously held that a claimant may not circumvent the IME procedure by requesting a change of physician, under § 8-43-404(5)(a), C.R.S. (1994 Cum. Supp.), subsequent to the date the authorized treating physician issues an opinion that the claimant is at MMI. To hold otherwise would eviscerate the IME procedure contemplated by § 8-42-107(8)(b), and undercut the authorized treating physician’s authority to determine MMI See Story v. Fresh Express, W.C. No. 4-135-838, February 24, 1995 Johanningsmeier v. Swedish Medical Center, W.C. No. 4-115-315, October 27, 1994.
However, we believe these cases are distinguishable because, here, the respondent voluntarily reopened the matter based on worsened condition. A reopening based on worsened condition is predicated on a deterioration in the claimant’s “physical condition.” Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987). Reopening is appropriate where the deterioration in the claimant’s condition causes increased permanent disability, the need for additional medical treatment which was not foreseeable when the claim was closed, or additional temporary disability. See Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988); Loucks v. Safeway Stores, 757 P.2d 639 (Colo.App. 1988). Thus, reopening of a claim based on a worsened condition indicates that the claimant’s condition has become so unstable that it is not consistent with any prior determination of MMI See Golden Animal Hospital v. Horton, 897 P.2d 833 (Sup.Ct. No. 94SC323, June 26, 1995) (evaluation of permanent disability cannot precede determination that claimant’s condition is stable); Dorman v. B W Construction Co., supra; Dziewior v. Michigan General Corp., 672 P.2d 1026
(Colo.App. 1983); § 8-42-107(8)(c), C.R.S. (1994 Cum. Supp.) (once MMI has been determined, authorized treating physician determines medical impairment rating).
It follows that the respondent’s voluntary reopening of the claim is fundamentally inconsistent with the opinion of Dr. Jenks, the original authorized treating physician, that the claimant reached MMI in May 1993 and has remained at MMI. Had the respondent wished to rely on Dr. Jenks’ opinion that the claimant continues to be at MMI, it could have opposed the petition to reopen and argued that the claimant’s condition did not worsen after May 1993. Instead, the respondent agreed to reopen the claim, thereby admitting that the claimant’s condition has worsened. Having made this admission, the respondent could not unilaterally withdraw it, nor has the respondent asserted that the admission was mistaken and that the claimant’s condition has not worsened. See HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990). In fact, neither the respondent’s October 1994 Response to Application for Hearing, nor counsel’s remarks at the hearing, indicate a desire to withdraw the May 1994 admission. Under these circumstances, the respondent waived any right it had to rely on the opinion of Dr. Jenks as the authorized treating physician.
In any event, the ALJ made findings that the claimant’s condition has deteriorated since May 1993, and that Dr. Jenks has failed to “stabilize” the condition. This is tantamount to a finding of worsened condition which justifies reopening.
Moreover, this is not a case in which the claimant seeks to circumvent the IME procedure, but a case in which the respondent conceded that the claimant’s condition worsened, and therefore, that the authorized treating physician was incorrect with respect to MMI. Under such circumstances, we do not believe that the IME provisions of § 8-42-107(8)(b) impose any procedural barrier to the ALJ’s decision to change the authorized treating physician.
II.
The respondent next contends that the ALJ erred in determining that the claimant made a “proper showing” for a change in the authorized treating physician from Dr. Jenks to Dr. Rook. We reject this argument.
We have previously held that § 8-43-404(5)(a) affords the ALJ substantial discretion in determining whether the claimant has made a “proper showing” for a change in the authorized treating physician Brenneman v. McDuff Electronics, W.C. No. 3-936-449, November 14, 1991 Carson v. Wal Mart, W.C. No. 3-964-097, April 12, 1993. Thus, we may not interfere with the ALJ’s order unless it is beyond the bounds of reason See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Here, the claimant’s testimony, which the ALJ found credible, supports the ALJ’s finding that the claimant no longer desires treatment from Dr. Jenks, and Dr. Jenks no longer desires to provide treatment to the claimant. This evidence, taken with evidence that Dr. Rook has substantial experience in treating RSD and has prescribed a course of treatment different than that of Dr. Jenks, is ample evidence in support of the ALJ’s order.
It is true, as the respondent argues, that the record contains some evidence from which a contrary conclusion could have been reached. However, we may not substitute our judgment for that of the ALJ concerning the probative weight of the evidence. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.).
IT IS THEREFORE ORDERED that the ALJ’s order, dated January 27, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
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 July 20, 1995 to the following parties:
Susanna R. Patla, 1095 Western Drive, Lot I 443, Colorado Springs, CO 80915
Bethesda Care Center, Attn: Lois Cave, NHA, 3625 Parkmoor Village Dr., Colorado Springs, CO 80917
Alexsis Risk Management, Inc., Attn: Mary Carter, 1099 Eighteenth St., Ste. 3050, Denver, CO 80202-1930
Kathleen W. Robinson, Esq., 802 S. Tejon, Colorado Springs, CO 80903 (For the Claimant)
J. Barton Maxwell, Esq. Bonnie J. McLaren, Esq., 1430 Larimer Square, 400 Sussex Building, Denver, CO 80202 (For the Respondent)
By: ______________________