W.C. No. 4-516-705.Industrial Claim Appeals Office.
May 4, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied a petition to reopen based on worsened condition. The claimant contends the ALJ’s order incorrectly identifies the authorized treating physician (ATP), that the evidence does not support the order, and that the order is erroneous as a matter of law. We affirm.
The claimant sustained a compensable left knee injury in August 2001. Knee surgery was performed, and Dr. Boehle, an ATP, placed the claimant at maximum medical improvement (MMI) of February 10, 2003. At that time, the ATP diagnosed left internal knee derangement, chondromalacia, post-traumatic arthritis and reduced range of motion in the left knee. The ATP assessed an impairment of 22 percent of the left lower extremity. The ATP’s February 10 report states that “maintenance care” is not needed.
On February 18, 2003, the respondents filed a Final Admission of Liability (FAL) based on the ATP’s finding of MMI and impairment rating. In the section of the FAL designated as “Position on Medical Benefits” after MMI, the respondents inserted the word “None.” Although the claimant objected to the FAL, he failed timely to obtain a Division-sponsored independent medical examination and did not obtain a hearing on the issue of post-MMI medical benefits. Consequently, the claim was closed.
On April 7, 2004, the claimant’s counsel wrote to respondents’ counsel stating that the claimant’s condition had “deteriorated” and the claimant was requesting treatment by Dr. Krause, a physician who had treated the claimant for various conditions not related to the industrial knee injury. Respondents’ counsel replied by letter dated April 16, 2004, stating that Dr. Boehle remained the ATP and that the issue of “medical maintenance” treatment had been closed by the FAL.
In June 2004, the claimant filed a petition to reopen based on worsened condition. The petition was supported by the report of Dr. Krause dated May 7, 2004, which stated that he believed the claimant’s left knee symptoms were worsening.
In August 2004, Dr. Boehle again examined the claimant. His diagnosis was essentially the same, except he added “left SI joint dysfunction” with left hip and thigh muscle tightness. Dr. Boehle opined the claimant remained at MMI and might benefit from continued use of anti-inflammatory medications prescribed by Dr. Krause. Dr. Boehle also referred the claimant for an evaluation by Dr. Ciccone, the physician who performed the knee surgery. In September 2004, Dr. Ciccone recommended continued use of anti-inflammatory medications and against additional surgery.
The ALJ was most persuaded by the opinions of Dr. Boehle and Dr. Ciccone, the “treating physicians for claimant in 2002 and 2003” and who again saw the claimant in 2004. (Finding of Fact 15). Specifically, the ALJ found the claimant suffered from pain and weakness in February 2003, used a cane at that time, and need anti-inflammatory medication at that time. Thus, the ALJ found the claimant failed to prove any change of condition which warrants reopening.
I.
On review, the claimant first contends the ALJ “erred in his failure to acknowledge Dr. Krause” as the ATP. The claimant asserts that Dr. Krause became the ATP when the respondents failed to tender care after they were notified by letter in April 2004 that the claimant was seeking to reopen. The claimant argues that this error was prejudicial because the ALJ failed to give sufficient “deference” to the opinion of Dr. Krause. We are not persuaded by this argument.
A claim may be reopened based on a change of condition. Section 8-43-303, C.R.S. 2004. A change in condition refers to a change in the claimant’s physical or mental condition which is causally-related to the original industrial injury, and the claimant bears the burden of proof to establish these elements. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002). The decision whether to reopen is discretionary with the ALJ, and we may not interfere unless an abuse is shown. An abuse exists only if the ALJ’s determination is beyond the bounds of reason, as where it is contrary to law or not supported by substantial evidence. Jarosinski v. Industrial Claim Appeals Office, supra.
We must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2004. This standard of review requires that we defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002).
Initially, we note that the term “authorization,” as used in workers’ compensation cases, refers to a medical provider’s legal authority to treat the claimant for an industrial injury and to receive payment from the respondents for the services performed. See Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). However, the mere fact that a physician is “authorized” does not, under the Act, automatically require the ALJ to give greater weight to that physician’s opinions on the questions of whether a claimant’s condition has worsened, and if so, whether the worsening is causally-related to the underlying industrial injury. Those questions remain issues of fact for the ALJ to determine. Cf. Cordova v. Industrial Claim Appeals Office, supra (DIME physician’s opinion concerning cause of worsening not entitled to any special weight, and cause of worsening is issue of fact for ALJ).
We have reviewed the ALJ’s findings of fact, including findings 10 and 15. It is not clear to us whether, if required to do so, the ALJ would have held that Dr. Boehle remained the ATP in 2004, or whether the ALJ would have concluded that Dr. Krause became authorized. What is clear is that the ALJ gave the greatest weight to the opinions of Dr. Boehle and Dr. Ciccone not because the ALJ considered them legally “authorized” at the time of the order, but because these physicians had the opportunity to evaluate and treat the industrial knee injury in 2002 and 2003, and they saw the claimant again in 2004. Therefore, the ALJ concluded Dr. Boehle and Dr. Ciccone were in a better position than Dr. Krause to evaluate whether the claimant’s knee condition had changed after the date of MMI, and the ALJ considered their opinions the most credible. We do not perceive how the ALJ could have evaluated Dr. Krause’s opinion differently simply by concluding that Dr. Krause became an ATP in April 2004. Thus, we perceive no error in the order. Further, we need not reach the question of whether Dr. Krause would have become the ATP under the facts presented here.
II.
The claimant next contends that the evidence compelled the ALJ to find a worsening of condition caused by the industrial injury. The claimant first argues that because Dr. Boehle did not diagnose SI joint dysfunction in February 2003, but reached that diagnosis in 2004, the claimant’s condition necessarily worsened. We disagree.
Although Dr. Boehle did not diagnose SI joint dysfunction in February 2003, he did note a finding of “mild tightness in the left lower back and musculature and left hip related to [the claimant] holding his weight up with his right leg and not putting much weight on the left leg at all.” (Report of Dr. Boehle, February 10. 2003, P. 3). As the ALJ found, in August 2004, Dr. Boehle made a specific diagnosis of SI joint dysfunction but stated that he believed the claimant remained at MMI. The ALJ could reasonably infer from this evidence that in 2004, Dr. Boehle made a specific diagnosis of the back pain noted in February 2003, but determined that the mere assignment of a specific diagnosis did not represent an actual change of the claimant’s condition. Indeed, as the ALJ found, the claimant used a cane in 2003 and reported ongoing pain. Thus, there is ample evidence to support the ALJ’s finding that the claimant failed to prove a change of condition based on the SI joint dysfunction, and we may not interfere with the order.
The claimant next points out that the respondents’ February 2003 FAL denied liability for ongoing medical benefits after MMI. The claimant argues that because the respondents may not challenge their own FAL that ongoing medical benefits were not necessary, the ALJ cannot now conclude that they were. The claimant alternatively argues that to the extent the ALJ can now find that anti-inflammatory medication was necessary in February 2003, the ALJ must find that the claim should be reopened on grounds of mistake.
It is true that a claim may be reopened if the claimant proves a need for additional medical treatment. See Dorman v. B W Construction Co., 765 P.2d 1033 (Colo.App. 1988). However, the right to continuing medical benefits after MMI may be waived unless the claimant challenges an FAL in a timely fashion. See Hanna v. Print Expediters Inc., 77 P.3d 863
(Colo.App. 2003). Here, the claimant does not assert that he timely challenged the FAL based on the respondents’ denial of liability for ongoing medical benefits. Consequently, the issue was closed unless reopened. Dyrkopp v. Industrial Claim Appeals Office, 30 P.3d 821
(Colo.App. 2001). The import of the ALJ’s order is that the claimant needed ongoing medical treatment at the time he was placed at MMI, and his condition has not changed. Thus, the ALJ correctly determined that the claimant is not entitled to medical benefits because the issue was closed. The claimant’s argument notwithstanding, the respondents are not seeking to withdraw their FAL; the claimant is instead seeking grounds to reopen a closed claim.
The claimant asserts that because the respondents denied liability for ongoing medical benefits, the ALJ’s finding that he needed such benefits amounts to a legal determination that the claim must be reopened based on mistake. First, the petition to reopen was not tried on the theory of mistake, and we may not consider the issue for the first time on review Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997). Moreover, a finding of “mistake” would require the ALJ to determine that the mistake is of a type which warrants reopening. Travelers Insurance Co. v. Industrial Commission, 646 P.2d 399 (Colo.App. 1981). Because Dr. Boehle’s first recommendation for continuing medical treatment came immediately after the filing of the FAL, it is hardly a foregone conclusion that the alleged mistake is of the type which an ALJ would conclude supports reopening. An ALJ might conclude the “mistake” could have been avoided had the claimant filed a timely challenge to the FAL on the issue of medical benefits. Cf. Klosterman v. Industrial Claim Appeals Office, 694 P.2d 873 (Colo.App. 1984). However, that question is not properly before us.
The claimant also suggests the FAL should be reopened on grounds of “fraud.” Once again, the claimant did not allege this theory as a basis for reopening, and we may not consider it on appeal. Insofar as the claimant makes other arguments, we find them to be factual in nature and without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 17, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Dona Halsey
Rumaldo Perales, Pueblo, CO, Lisa Napier, Napier Enterprises, Pueblo, CO, DeDe Evans, Mid-Century Insurance Company, Denver, CO, William A. Alexander, Jr., Esq., Colorado Springs, CO, (For Claimant).
Margaret Bauder Garcia, Esq., Denver, CO, (For Respondents).