W.C. Nos. 4-172-563, 4-195-131Industrial Claim Appeals Office.
October 24, 1996
FINAL ORDER
Rebel Properties, Inc. doing business as Baskin Robbins (Baskin Robbins), and its insurer, the Colorado Compensation Insurance Authority (the respondents) seek review of an order of Administrative Law Judge Wheelock (ALJ) dated, March 7, 1996. We affirm.
The claimant worked for Baskin Robbins from March 1992 to June 1993. During that employment, the claimant suffered an occupational disease which initially affected her right upper extremity. The respondents admitted liability for the disease in W.C. No. 4-172-563.
In August 1993 the claimant began working for Mand Made Pizza, Inc. doing business as Domino’s Pizza (Domino’s). The claimant’s upper extremity problems continued and the claimant subsequently filed a claim designated as W.C. No. 4-195-131, in which she sought workers’ compensation benefits from Domino’s and its insurer, Travelers Indemnity Company.
From conflicting evidence, the ALJ found that the respondents failed to prove that the claimant suffered a substantial permanent aggravation of her disease at Domino’s. Therefore, the ALJ denied and dismissed W.C. No. 4-195-131. The ALJ also found that the Dr. McCurry was the claimant’s primary treating physician for the occupational disease, and that Dr. McCurry had not released the claimant to return to her regular employment, or determined the claimant to be at maximum medical improvement (MMI). Therefore, the ALJ ordered the respondents to pay temporary disability benefits in W.C. No. 4-172-563.
I.
On review, the respondents first contend that Dr. Ritchie, and not Dr. McCurry, is the claimant’s primary treating physician. Because Dr. Ritchie found the claimant to be at MMI on September 1, 1993, and the claimant has not sought to contest Dr. Ritchie’s opinion by requesting an independent medical examination (IME), the respondents argue that the ALJ erred in awarding temporary disability benefits after September 1, 1993. We reject this argument.
Temporary disability benefits terminate upon the attainment of MMI. Section 8-42-105(3)(a), C.R.S. (1996 Cum. Supp.) Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). The initial determination of MMI is to be made by the “authorized treating physician” who has provided the “primary care.” Furthermore, the determination of the primary care physician is binding in the absence of an IME under the provisions of §8-42-107(8)(b), C.R.S. (1995 Cum. Supp.) [amended 1996 Colo. Sess. Laws, ch. 112 at 269, for determinations of MMI on or after July 1, 1996]. Colorado AFL-CIO v. Donlon, supra.
However, an IME is not a prerequisite to the ALJ’s determination of the “identity” of the primary care physician Rohr v. Interim Health Care, W.C. No. 4-177-445, September 13, 1994; Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327, June 23, 1995; Keesee v. Dack’s Texturing Services, W.C. No. 4-156-633, December 30, 1994. Nor is an IME required prior to the ALJ’s determination concerning whether the primary care physician has found the claimant to be at MMI. Keesee v. Dack’s Texturing Services, supra; Molloy v. Martin Marietta Corp., W.C. No. 4-136-232, November 29, 1994; Johanningsmeier v. Swedish Medical Center, W.C. No. 4-155-315, October 27, 1994.
Here, the ALJ found that Dr. McCurry is the claimant’s primary care physician because when the claimant first requested treatment for the occupational disease, the employer referred her to Dr. McCurry, the claimant’s personal physician. The ALJ also found that Dr. McCurry treated the claimant on May 7, May 14 and May 28, 1993. However, after Dr. McCurry restricted the claimant from working, the respondents directed the claimant to see Dr. Ritchie. Dr. McCurry then reported that he was “not the authorized work comp doc,” and consequently, could not “follow up” with the claimant after May 28.
These findings are supported by substantial evidence in the record, and thus, must be upheld. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Furthermor , these findings support the ALJ’s determination that Dr. McCurry remained the claimant’s primary treating physician notwithstanding the respondents’ unilateral actions designed to establish Dr. Ritchie as the claimant’s primary treating physician. Cf. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). (where employer failed to designate a physician and the claimant selected her own physician, employer could not “recapture” the right of first selection).
The record also supports the ALJ’s determination that Dr. McCurry has not released the claimant to return to her regular employment, or found the claimant to be at MMI. Under these circumstances, it is immaterial whether the claimant requested an IME to contest Dr. Ritchie’s determination of MMI, and Dr. Ritchie’s opinion did not preclude the ALJ from awarding temporary disability benefits after September 1, 1993.
The respondents further contend that the ALJ erred in finding that Dr. Ritchie was not an “authorized treating physician” as of September 1, 1993. We cannot locate any such finding of fact in the ALJ’s order. To the contrary, the ALJ ordered the respondents to pay for the treatment provided by Dr. Ritchie and his referrals. Consequently, the ALJ implicitly found that Dr. Ritchie was authorized to treat the claimant. See Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973) (insurer is not liable for unauthorized, non-emergency treatment).
II.
The respondents further contend that the ALJ erred in failing to find that Domino’s is liable for the claimant’s temporary disability. We perceive no error.
Section 8-41-304(1), C.R.S. (1996 Cum. Supp.), provides that:
“Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease and suffered a substantial permanent aggravation thereof and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier.”
The determination of whether the claimant’s condition is the result of the original occupational disease, or a substantial permanent aggravation or an intervening injury is a factual question to be resolved by the ALJ. See Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993); F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ’s determination that the claimant did not suffer a substantial permanent aggravation if supported by substantial evidence and the ALJ’s plausible inferences drawn from the record. Section 8-43-301(8). In so doing, we are bound by the ALJ’s credibility determinations and his resolution of conflicts in the evidence, including conflicts in the expert medical testimony. Monfort Inc. v. Rangel, supra.
Admittedly, Dr. Carlson opined that the claimant suffered a substantial permanent aggravation during her employment at Domino’s. However, the ALJ rejected Dr. Carlson’s opinion because it was premised on Dr. Ritchie’s finding that the claimant reached MMI on September 1, 1993, with no permanent impairment. As stated by the ALJ, Dr. Ritchie admitted that his opinion was “speculative,” and thus, the ALJ found the opinion unpersuasive.
Instead the ALJ credited the opinions of Dr. Bernton, who stated that making pizzas at Domino’s temporarily aggravated the claimant’s condition. However, Dr. Bernton testified that when the claimant was no longer required to make pizzas her symptoms returned to the baseline that they had been prior to the date she began working at Domino’s. (Bernton depo., pp. 7-8). As noted by the ALJ, Dr. Bernton’s testimony is consistent with the claimant’s testimony that her symptoms were worse when she was making pizzas, but returned to the pre-pizza making level when her job duties were changed in March 1994. (Tr. pp. 24-25, 41). Furthermore, the ALJ could, and did, infer from this evidence that the claimant suffered no “permanent” aggravation of her condition while employed at Domino’s. Thus, the ALJ did not err in dismissing W.C. No. 4-195-131.
However, the respondents also cite evidence that the claimant was having problems in her right upper extremity problems before she left Baskin Robbins, and that she did not complain of headaches or pain in her left hand, neck, and shoulder until after she left that employment. Further, the respondents cite evidence that the claimant’s subsequent housekeeping activities worsened her condition, and that the claimant injured her neck in an automobile accident in August 1994. Based upon this evidence, the respondents argue that the claimant’s condition could not be attributable to the original occupational disease.
The record contains conflicting evidence concerning whether the claimant’s pain in her neck, shoulder and left upper extremity are the consequence of the original industrial injury. The ALJ resolved the conflict’s against the respondents and this determination is supported by Dr. Bernton’s opinion that the claimant’s current symptoms are attributable to the original occupational disease. Dr. Bernton also testified that the claimant’s repetitive activity of scooping ice cream at Baskin Robbins inherently involves the shoulder as well as the hand, wrist and elbow, and that insofar as the claimant suffered a trapezius strain, headaches are a symptom of a trapezius strain. (Bernton depo. p. 19).
Further, the ALJ expressly recognized that the claimant’s housecleaning activities increased the claimant’s pain and swelling in her right hand and wrist. However, the ALJ was not persuaded that these activities resulted in a new injury, and the respondents have failed to demonstrate that the record compels a contrary conclusion. Rather, the ALJ found that to avoid using her dominant right upper extremity the claimant overused the left upper extremity, and over time developed problems in the left upper extremity. (Finding of Fact 10).
Similarly, the claimant testified that she suffered only a “mild whiplash” in the auto accident, which resolved with chiropractic treatment. (Tr. p. 47). Her testimony is consistent with Dr. Bernton’s opinion that the auto accident caused a temporary exacerbation of the claimant’s original injury disease. (Bernton depo., p. 8). Thus, we reject the respondents’ argument that the ALJ was compelled to find that the claimant’s temporary disability is due to an efficient, intervening injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 7, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed October 24, 1996 to the following parties:
Corine A. Persinger, 715 West Grand, Canon City, CO 81212
Rebel Properties, Inc. d/b/a Baskin Robbins, 331 Royal Gorge Blvd., No. E., Canon City, CO 81212-3744
Mand Made Pizza, Inc. d/b/a Domino’s Pizza, 5735 Industrial Place, Colorado Springs, CO 80916-3762
Cherry S. Rorex, The Travelers Co., P.O. Box 173762, Denver, CO 80217-3762
Colorado Compensation Insurance Authority, Attn: Marjorie J. Long, Esq. (Interagency Mail)
Richard L. Susman, Esq., 1401 Court St., Pueblo, CO 81003 (For the Claimant)
Lawrence D. Blackman, Esq., Christina M. Middendorf, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Travelers Respondents)
BY: _______________________