W.C. No. 4-486-338Industrial Claim Appeals Office.
November 6, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the respondents were not required to file a final admission of liability (FAL) for permanent disability benefits and determined that a claim for penalties was moot. We affirm.
The claimant sustained a compensable back injury in December 2000, and underwent surgery in January 2001. The claimant returned to light-duty work which he performed until June of 2001, when he was laid off for economic reasons. Following the layoff, the claimant moved from Denver to his hometown of Capulin, Colorado.
While in Capulin the claimant received authorized medical treatment from Dr. McMillan of the San Luis Valley Medical Clinic (SLVMC). Dr. McMillan is not level II accredited. The claimant was last examined by Dr. McMillan on April 18, 2002, and was prescribed additional physical therapy. Dr. McMillan became ill in May 2002, and was unable to continue providing treatment to the claimant. Thereafter, other physicians at the SLVMC “covered” Dr. McMillan’s patients, although the ALJ found that none of them felt “qualified to treat Claimant’s back injury.”
In July 2002, the claimant received a note from the “orthopedic department” of the SLVMC referring him to Dr. Bradley, a level II physician located in Pueblo, Colorado, for a “maximum medical improvement evaluation.” Further, the ALJ found that on July 25, 2002, Meegan Maddux (Maddux), a nurse in the SLVMC, filled out a “referral card” for the claimant to attend a “Level two/MMI” evaluation with Dr. Bradley. Although the referral card states, and Maddux testified, that this referral was authorized by the insurance adjuster, the ALJ credited the adjuster’s contrary testimony.
The claimant was evaluated by Dr. Bradley on August 13, 2002, and Dr. Bradley issued a 26 percent whole person impairment rating. Dr. Bradley’s report does not contain a date of MMI. A copy of Dr. Bradley’s report was provided to the insurer on September 25, 2002.
In November 2002, the claimant filed a motion requesting that the respondents be ordered to file an FAL consistent with Dr. Bradley’s impairment rating, and foreclosed from seeking a Division-sponsored independent medical examination (DIME) to contest the rating. The motion alleged the respondents had authorized Dr. Bradley to treat the claimant, and that the respondents failed to contest Dr. Bradley’s impairment rating by timely requesting a DIME under § 8-42-107.2, C.R.S. 2003. Because the respondents failed to reply to this motion, a prehearing administrative law judge (PALJ) deemed the motion granted by order dated November 26, 2002.
On December 2, 2002, the respondents filed a notice and proposal to select a DIME to challenge Dr. Bradley’s impairment rating. The respondents also applied for a hearing to review the PALJ’s order. The respondents alleged that Dr. Bradley was not “an authorized treating physician” and that his “opinion regarding permanent impairment has no standing.” The claimant filed a response adding the issue of penalties for violation of Rule of Procedure IV (N)(5), 7 Code Colo. Reg. 1101-3 at 7.03 (requiring respondents to file an admission or seek a DIME within 30 days after mailing or delivery of medical impairment rating by authorized level II accredited physician).
Following a hearing, the ALJ found that Dr. McMillan and other SLVMC doctors were authorized treating physicians, and that Dr. Bradley was not “a treating physician in this case.” In this regard the ALJ found that Maddux “was not a physician,” and that her referral of the claimant “to Dr. Bradley for an impairment rating is without effect.” (Finding of Fact 17, Conclusion of Law 4). The ALJ further found that no authorized treating physician has ever issued an opinion that the claimant has reached MMI, nor have any of the authorized treating physicians issued a report to that effect. The ALJ concluded that it would be improper to file an FAL without such a report. Under the circumstances, the ALJ set aside the PALJ’s order and concluded the issue of penalties is “moot.”
I.
On review, the claimant argues the ALJ erred as a matter of law in setting aside the order of the PALJ. The claimant asserts that by filing the notice and proposal to select a DIME the respondents “admitted” that Dr. Bradley was an authorized physician and that the matter should be returned to the ALJ to resolve this issue. Alternatively, the claimant asserts there is evidence the claimant was referred to Dr. Bradley by SLVMC, and therefore, Dr. Bradley became an authorized treating physician for the purpose of issuing an impairment rating and providing treatment.
We have considered whether the ALJ’s order is final and reviewable for purposes of § 8-43-301(2), C.R.S. 2003. We conclude the order is final because it effectively denied the claimant’s request for penalties based on the contention that Dr. Bradley was an authorized level II physician for purposes of requiring the respondents to file an FAL under Rule IV (N)(5).
Section 8-42-107(8)(b)(I), C.R.S. 2003, provides that “an authorized treating physician” shall determine when the claimant reaches MMI. A valid finding of MMI is a predicate to a determination of the claimant’s impairment rating and an award of permanent disability benefits. MGM Supply Co. v. Industrial Claim Appeals Office, 62 P.3d 1001 (Colo.App. 2002). Further, a DIME is a jurisdictional prerequisite to any hearing concerning “the validity of an authorized treating physician’s finding of MMI.” Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513
(Colo.App. 2002). However, the determination of whether a physician is “an authorized treating physician” for purposes of determining MMI is one of fact which may be determined without resort to the DIME process. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). A treating physician is one who provides treatment to the claimant in the broad sense including examination, diagnosis and the provision of remedies. Town of Ignacio v. Industrial Claim Appeals Office, supra.
“Authorization” refers to a physician’s legal authority to treat the claimant and receive payment under the workers’ compensation system. See One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501
(Colo.App. 1995). As the claimant argues, authorization may occur if, “as part of the normal progression of authorized treatment for a compensable injury suffered by a claimant, an authorized treating physician refers a claimant to one or more other physicians.” Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680, 684 (Colo.App. 1999). The question of whether a valid referral occurred is also one of fact for the ALJ Suetrack v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Because the identity of an “authorized treating physician” and the existence of a valid referral are questions of fact, we must uphold the ALJ’s determinations of these issues if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002). Further, the ALJ is not held to a standard of absolute clarity when expressing findings of fact and conclusions of law, provided the findings and conclusions which are entered are sufficient to indicate the factual and legal basis of the award. When entering findings the ALJ need not discuss every piece of evidence, and evidence not cited is presumed to have been rejected. Finally, it is appropriate to consider findings necessarily implied by the ALJ’s order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the ALJ found the only authorized treating physicians were Dr. McMillan and those a SLVMC, and that Dr. Bradley was not an authorized treating physician. Thus, unless these findings are unsupported by the evidence, the ALJ correctly ruled that the claimant has never been placed at MMI for purposes of § 8-42-107(8)(b), and that Dr. Bradley’s impairment rating is of no legal effect because it was not preceded by a valid determination of MMI by an authorized treating physician.
The claimant seeks to avoid this result by arguing the ALJ erred in failing to determine whether Dr. Bradley became an authorized treating physician as result of a valid referral from SLVMC. However, we conclude that the ALJ implicitly rejected this contention. The ALJ found that Dr. Bradley was not a treating physician and that the referral to him was made by the by nurse Maddux who “is not a physician.” (Finding of Fact 17). In our view, these findings are tantamount to a determination that the “referral” to Dr. Bradley was not made by a treating physician in the normal progression of treatment, but by a nurse without sufficient authority to make such a referral. Although some evidence in the record, including the testimony of Maddux, might support a contrary determination, the ALJ did not discuss this testimony and implicitly rejected it. Moreover, as the ALJ recognized, Dr. Bradley merely rated claimant’s impairment without discussing the issue of MMI. Therefore, it may reasonably be inferred that Dr. Bradley did not understand himself to be an authorized “treating physician” who was being consulted for the purpose of deciding whether further treatment was necessary.
It follows that the record supports the ALJ’s determination that Dr. Bradley was not an authorized treating physician for the purpose of determining MMI and rating the claimant’s impairment. Neither was he authorized to rate the claimant’s impairment under § 8-42-107(8)(b.5), C.R.S. 2003, because, as the ALJ found, no authorized treating physician ever placed the claimant at MMI.
Neither do we agree with the claimant’s contention that the matter should be remanded to determine whether the respondents’ filing of the notice and proposal to select a DIME physician constituted an “admission” that Dr. Bradley was authorized to issue a rating. This argument essentially constitutes an assertion that, through their conduct, the respondents waived the right to dispute whether the claimant was ever placed at MMI by an authorized treating physician.
It is true that waiver may result from conduct. However, waiver implied from conduct should be free from ambiguity and clearly manifest the intention not to assert the right. Department of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984). In our opinion, the record here could not support a finding of waiver. The claimant’s own motion to the PALJ asserts that claimant’s counsel argued to the insurance adjuster “that Dr. Bradley is the authorized physician upon which any Notice and Proposal or Final Admission of Liability must be based.” (Respondents’ Exhibit C, paragraph 3). Thus, the respondents’ attempt to challenge Dr. Bradley’s rating by requesting a DIME may easily be viewed as an attempt to preserve the respondents’ rights in the event the claimant’s argument was correct. However, it may not fairly be assumed that the respondents attempt to preserve their rights constituted an admission that the claimant’s factual and legal position was correct, or that the respondents intended to abandon the right to argue that the claimant’s position was incorrect and Dr. Bradley was not authorized to determine MMI or rate impairment. Thus, we need not remand the matter because the issued may be resolved as a matter of law.
II.
The claimant contends the ALJ erred in excluding from evidence the written referral to Dr. Bradley, which is claimant’s Exhibit 4. However, the claimant testified without
objection to the contents of this exhibit. (Tr. P. 51). Further, Finding of Fact 9 recites the contents of Exhibit 4. Thus, we conclude that any error in excluding Exhibit 4 was harmless.
III.
Finally, the claimant contends the ALJ erred in concluding that the filing of a valid FAL is dependent on a written “report” of MMI issued by an authorized treating physician. The claimant argues that the referral to Dr. Bradley for a rating supports the inference that the claimant was placed that MMI. However, as we have found, the ALJ determined on substantial evidence that no “authorized treating physician” placed the claimant that MMI. Rather, the ALJ found the referral was made by nurse Maddux. Therefore, it is immaterial what inference might have been drawn if the referral to Dr. Bradley had been made by an authorized treating physician.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 14, 2003, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on November 6, 2003 by A. Hurtado.
Pete Quintana, P. O. Box 142, Capulin, CO 81124
Turner Construction Company/HNTB, c/o David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203
Sherry Martin, Liberty Mutual Fire Insurance, 2100 Walnut Hill Ln., #100, Irving, TX 75038
Eric C. Staton, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
David G. Kroll, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)