W.C. No. 4-360-050Industrial Claim Appeals Office.
September 16, 1999.
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Martinez (ALJ) which awarded the claimant medical benefits commencing October 14, 1998. The respondents argue the claimant reached maximum medical improvement (MMI) in June 1998, and was not entitled to medical benefits based on a subsequent worsening of condition. We affirm.
On August 7, 1997, the claimant sustained a compensable back injury which the initial treating physician, Dr. Feinsinger, diagnosed as a thoracic strain. After an initial period of conservative treatment Dr. Feinsinger placed the claimant at MMI on December 12, 1997.
On March 5, 1998, the claimant was examined by Dr. Walker. The claimant testified that Dr. Feinsinger referred him to Dr. Walker to conduct an impairment rating. (Tr. February 10, 1999, pp. 5-6). In his report Dr. Walker stated that it was his “initial understanding that this was to be an [Independent Medical Examination] for further opinion,” and therefore, he suggested additional “therapeutic modalities” including physical therapy, biofeedback, acupuncture, and possibly a pain clinic. However, Dr. Walker also assigned a 3 percent whole person medical impairment rating.
In June 1998 the claimant underwent a Division-sponsored independent medical examination (IME) by Dr. Patterson. Dr. Patterson agreed with Dr. Feinsinger that the claimant reached MMI in December 1997, and assigned a 5 percent whole person medical impairment rating.
On July 21, 1998, the claimant returned to Dr. Walker complaining of “increasing pain at a trigger point in the thoracic spine.” Dr. Walker examined the claimant and reported that his “symptoms are severe enough that treatment needs to be re-instituted and his case needs to be re-opened with consideration for the use of” the treatment modalities recommended in March 1998. The claimant was also examined by Dr. Feinsinger in December 1998. Dr. Feinsinger diagnosed “exacerbation of symptoms” and stated the claimant “should be allowed to have up to 2 weeks of physical therapy and possibly trigger-point injections as well, in the hopes of getting him back to the condition he was in at the time he was placed at MMI.”
Following a hearing in February 1999, the ALJ issued an order “reopening” the claim and awarding the claimant additional medical benefits commencing October 14, 1998. The ALJ found that both Dr. Feinsinger and Dr. Walker are authorized treating physicians who opined the claimant’s condition has worsened and that he is in need of additional medical treatment for the “exacerbation” of his condition. The ALJ also found, based on the reports of Dr. Walker, Dr. Feinsinger, and the testimony of the claimant that the worsened condition is causally related to the industrial injury.
I.
The respondents contend the ALJ’s finding of a causal connection between the August 1997 injury and the claimant’s worsened condition is not supported by substantial evidence. The respondents assert the claimant’s worsened condition was the result of “heavy work” he performed for another employer between January 1998 and March 1998. We disagree.
The question whether the claimant’s need for medical treatment was causally related to the 1997 injury was one of fact for determination by the ALJ. City of Durango v. Duagan, 939 P.2d 496 (Colo.App. 1997). Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. In this regard, we note the weight and credibility of the evidence concerning causation, including expert opinions, are matters for the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents’ assertions notwithstanding, substantial evidence supports the ALJ’s finding of causation. The claimant testified that his symptoms have steadily worsened since he was initially placed at MMI. The reports of Dr. Feinsinger and Dr. Walker explicitly relate the worsening of the claimant’s condition to the 1997 injury and suggest that his claim be reopened for the purpose of providing additional medical treatment. Consequently, we must uphold the ALJ’s order even if the evidence might support contrary findings and conclusions concerning the cause of the worsened condition.
Similarly, the question of whether the claimant’s condition actually worsened was one of fact for determination by the ALJ. The reports of the medical experts support the conclusion that the claimant’s symptoms increased to the point he needed treatment which was not deemed necessary at the time he reached MMI. We particularly note that some of the modalities recommended by Dr. Walker were not foreseen nor suggested at the time the claimant was placed at MMI in December 1997.
The respondents also assert the ALJ erred in determining that Dr. Walker was an “authorized treating physician.” The respondents argue the claimant was referred to Dr. Walker to prepare an impairment rating, not for purposes of treatment. Therefore, the respondents reason the ALJ gave inordinate weight to Dr. Walker’s opinion concerning causation. We reject this argument.
A physician may become authorized to treat the claimant as a result of a referral from a previously authorized treating physician. The referral must be made in the “normal progression of authorized treatment.” Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). The existence of such a referral is a question of fact for determination by the ALJ. City of Durango v. Dunagan, supra.
Here, there was conflicting evidence concerning whether or not Dr. Walker was authorized to treat the claimant. However, it is implicit in the ALJ’s order that he credited the portion of Dr. Walker’s March 5 report which states that a referral was made for a “second opinion” concerning whether are not additional treatment was appropriate. The mere fact that Dr. Walker was also asked to perform an impairment rating does not negate his status as an authorized treating physician. Therefore, there is no basis to interfere with the ALJ’s determination that Dr. Walker was authorized to treat claimant, nor his decision to credit Walker’s opinions.
II.
The respondents’ remaining arguments concern whether are not it was appropriate for the ALJ to award additional medical benefits despite the fact the claimant was placed at MMI by a Division-sponsored IME physician. The respondents assert the claim was never formally “closed,” and therefore, it was inappropriate for the ALJ to “reopen” the matter to award additional medical benefits. The respondents further contend the ALJ improperly circumvented the IME provisions by permitting an award of additional medical benefits based on a showing of worsened condition. We disagree with these arguments.
The provision currently codified at § 8-42-107(8)(b)(III), C.R.S. 1999, provides that the finding of a Division-sponsored IME physician concerning MMI may be overcome only by clear and convincing evidence. The claimant may not avoid this provision by changing physicians for the purpose of obtaining additional treatment designed to cure the injury. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995).
However, we have previously ruled that where a claimant’s condition worsens subsequent to the Division IME’s determination of MMI the claimant is entitled to additional medical treatment without the necessity of overcoming the IME physician’s opinion by clear and convincing evidence. The rationale for this holding is that where the claimant’s condition has worsened the request for additional medical treatment does not constitute a “constructive challenge” to the Division IME’s determination of MMI. See Story v. Industrial Claim Appeals Office, supra. To the contrary, the MMI provisions of § 8-42-107(8)(b) do not address the issue of a worsened condition subsequent to the date of MMI. Watkins v. Monfort, Inc., W.C. No. 4-219-467 (March 17, 1998); Donohoe v. Ent Federal Credit Union, W.C. No. 4-171-210 (September 15, 1995).
Neither do we consider it significant, for purposes of this analysis, whether the “worsened condition” occurs before or after formal closure of the claim. If, as the respondents allege, this claim remained open, the claimant was relieved of the obligation to show a worsened condition which justified formal reopening under § 8-43-303(1), C.R.S. 1999. Instead, the claimant remained entitled to reasonable and necessary medical benefits designed to cure and relieve the effects of the injury during the disability. Section 8-42-101(1)(a), C.R.S. 1999. The only prohibition against further medical benefits would be an attempt by the claimant to attack the Division IME physician’s determination that he reached MMI in December 1997. The claimant’s assertion that his condition worsened after the IME does not violate this principle.
It follows we find no reversible error in the ALJ’s order granting the claimant’s petition to reopen based on a worsened condition. The ALJ’s critical finding was that the claimant’s condition worsened after MMI necessitating further treatment. Whether or not a reopening was required, the claimant has proven entitlement to the disputed medical benefits.
Similarly, the ALJ did not misapply the burden of proof. Because the claimant was not attacking the Division IME physician’s determination of MMI, the clear and convincing standard did not govern. The respondents’ reliance on Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995), as authority to the contrary is misplaced. The issue in Postlewait was whether the opinion of the treating physician concerning the date of MMI was sufficient to overcome the Division-sponsored IME physician’s opinion by clear and convincing evidence. The court held that the opinion of the “primary care physician as to MMI is entitled to deference only when the IME procedure has not been used.” Id. at 24. Postelwait did not involve facts, like those in this case, where the claimant alleges a worsening of condition subsequent to the date of MMI as determined by the Division IME physician.
The respondents’ assertion that the ALJ failed to establish a specific date on which MMI was “revoked” is without merit. The ALJ did not “revoke” the date of MMI as determined by the IME physician. The ALJ merely determined the claimant’s condition worsened subsequent to that date, and the claimant is again entitled to medical benefits commencing October 14, 1998.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 12, 1999, 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 is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed September 16, 1999 to the following parties:
Bill Rhodes, P.O. Box 266, Meeker, CO 81641
Pyramid Enterprises, Inc., P.O. Box 249, Piru, CA 93040-0249
AIG Claim Services Inc., Attn: Carol Keim, 2201 E. Camelback, 4th floor, P.O. Box 32130, Phoenix, AZ 85064
Donald J. Kaufman, Esq., 401 23rd St., #302, Glenwood Springs, CO 81601 (For Claimant)
Joel S. Babcock, Esq., and Karen F. Hubler, Esq., P.O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Pendroy