W.C. No. 4-490-474Industrial Claim Appeals Office.
January 3, 2003
FINAL ORDER
The claimant and the respondents separately petitioned for review of an order of Administrative Law Judge Mattoon (ALJ). The respondents contend the ALJ erred by reopening the claim and awarding additional medical and temporary disability benefits. The claimant contests the ALJ’s order denying a change of physician. We affirm.
On January 17, 2001, the claimant suffered admitted injuries to his left hip and buttocks. The employer referred the claimant to Dr. Bergland, who diagnosed a lumbar strain and chronic back pain. On May 25, 2001, Dr. Bergland placed the claimant at maximum medical improvement (MMI), imposed permanent medical restrictions, and released the claimant from treatment. Thereafter, the respondents filed a Final Admission of Liability which terminated temporary total disability benefits based on Dr. Bergland’s finding of MMI.
It is undisputed the claimant did not timely file a written objection to the Final Admission as required by § 8-43-203(2)(b)(II), C.R.S. 2002. However, the ALJ found the respondents were equitably estopped from arguing that the claimant did not timely object or obtain a Division Independent Medical Examination because the respondents agreed to allow the claimant to be examined by Dr. Reiss, and to be bound by Dr. Reiss’s opinions of MMI and the need for additional medical treatment.
Based upon his examination, Dr. Reiss diagnosed spondylolysis and spondylolisthesis and opined that the claimant’s condition could potentially improve with a stabilization and conditioning program. He added that if the claimant continued to experience a great deal of pain, selective blocks, injections, and surgical intervention may be useful.
After review of Dr. Reiss’s evaluation, Dr. Bergland issued a letter dated October 11, 2001, in which he opined that the industrial injury was not a “traumatic event so `major’ as to result in a spondylolysis/spondylolisthesis.” Therefore, Dr. Bergland opined that even if Dr. Reiss’s diagnosis was correct, the claimant’s lower back pain was not “work injury related.” Further, Dr. Bergland opined the claimant remained at MMI for the industrial injury “since there is no appropriate therapy that has not been undertaken.”
The ALJ reopened the claim based on error or mistake, and required the respondents to provide additional medical treatment. Further, the ALJ determined the claimant was medically restricted from performing his regular employment. Therefore, the ALJ required the respondents to reinstate temporary total disability benefits retroactive to May 25, 2001. However, the ALJ denied the claimant’s request for a change of physician.
I.
On appeal, the respondents contend the claimant failed to prove grounds to reopen the claim. We disagree.
Initially, we note that both the claimant and the respondents have designated the “Division of Workers’ Compensation” file as part of the appellate record. The record transmitted to us on appeal is apparently the Division of Administrative Hearing file, and not the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the parties requested the ALJ to consider the complete Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(6), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, and have restricted our review to the record made at the hearing.
Under § 8-43-203(2)(b)(II), a claim automatically closes where the claimant fails timely to file a written objection to a final admission. Thereafter, the claimant is precluded from receiving further benefits, unless there is an order reopening the claim on the grounds provided in § 8-43-303, C.R.S. 2002. Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991).
The power to reopen is “permissive,” and therefore, we may not interfere with the ALJ’s order unless it constitutes an abuse of discretion. Renz v. Larimer County School District Poudre R-1, supra; Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). An abuse of discretion is not shown unless the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to the applicable law. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1994).
Dr. Reiss’s report contains substantial evidence that Dr. Bergland’s finding of MMI was erroneous. Consequently, we cannot say the ALJ abused his discretion in finding the claimant sustained his burden to prove a mistake or error which justified reopening the claim.
The respondents’ further arguments have been considered and do not persuade us there is any reversible error. The record amply supports the ALJ’s determination that the respondents arranged for Dr. Reiss to evaluate the claimant’s industrial injury, and agreed to be bound by Dr. Reiss’s opinion on MMI and the need for further treatment. Accordingly, it is immaterial that neither party formally requested a Division-sponsored independent medical examination pursuant to §8-42-107.2, C.R.S. 2002, to challenge Dr. Bergland’s determination of MMI.
The respondents argue there is no evidence that the spondylolysis/spondylolisthesis was caused by the industrial injury. Although Dr. Reiss did not explicitly indicate the cause, his report reflects that he was aware the claimant was being treated for an industrial injury. Insofar as Dr. Reiss did not attribute any part of the claimant’s condition to non-industrial causes, the ALJ could reasonably infer that Dr. Reiss considered the condition to be work-related. Furthermore, the ALJ implicitly determined the industrial injury caused the claimant’s condition. See Discussion and Conclusions 5-8.
Contrary to the respondents’ further argument, the ALJ explicitly references Dr. Bergland’s disagreement with Dr. Reiss’s recommendation for further treatment of the industrial injury. See Finding of Fact 14. It follows that the ALJ implicitly overruled the claimant’s objection to the admission of Dr. Bergland’s letter dated October 11, 2002. (See Tr. pp. 5, 10, 23-24). Consequently, the respondents were not prejudiced by the ALJ’s failure to announce her ruling.
Finally, we perceive no error in the reinstatement of temporary disability benefits retroactive to May 25, 2001, instead of the date of the order or the date of Dr. Reiss’s report. Section 8-42-105(3), C.R.S. 2002, provides that once the respondents’ liability for temporary disability benefits has been determined, such benefits shall “continue” until the occurrence of one of the events listed in §8-42-105(3)(a)-(d). Insofar as pertinent, subsection 8-42-105(3)(a), C.R.S. 2002, terminates temporary disability benefits when the claimant reaches MMI.
The respondents’ Final Admission admits liability for temporary disability benefits commencing January 18, 2001 and terminating May 24, 2001, in accordance with Dr. Bergland’s determination of MMI. However, the ALJ determined the claimant did not reach MMI on May 25, 2001 and there is no finding or assertion that temporary disability benefits terminated by application of § 8-42-105(3)(b),(c), or (d). Consequently, the ALJ correctly awarded temporary total disability retroactive to the date they were terminated by the respondents’ Final Admission of Liability.
II.
The claimant contends the ALJ erred as matter of law in denying the change of physician. We disagree.
Section 8-43-404(5)(a), C.R.S. 2002, permits the ALJ to order a change in physicians based upon a “proper showing.” We have previously ruled this statute grants the ALJ wide discretion in determining whether to authorize a change in physicians. Consequently, we will not interfere with the ALJ order absent an abuse of discretion. Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400 (December 14, 1998).
The claimant argued to the ALJ that, because Dr. Bergland “so adamantly disagrees with Dr. Reiss, it cannot be reasonably expected that Dr. Bergland will follow the recommendations made by Dr. Reiss.” (See
Position Statement May 28, 2002). However, the claimant did not present any testimony that Dr. Bergland was unwilling to provide treatment which might be ordered by the ALJ and authorized by respondents. Under these circumstances, the ALJ could and did reasonably infer that Dr. Bergland’s unwillingness to provide additional treatment was “speculative.” Consequently, we cannot say the ALJ abused her discretion in denying a change of physician. Moreover, we note that the ALJ did indicate the claimant could reapply for a change of physician if Dr. Bergland does not render medical treatment which has now been determined by the ALJ to be reasonable and necessary for the industrial injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 19, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Kathy E. Dean
____________________________________
Dona Halsey
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, within twenty (20) days after the date this Order is 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 decision were mailed __________January 3, 2003 ____________to the following parties:
Dale Scruggs, 4265 Dolphin Cir., Colorado Springs, CO 80918
Glenn Mickelson, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Sandy Parrott, Liberty Mutual Insurance, P.O. Box 168208, Irving, TX 75016-8208
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq. and Susan A. Kraemer, Esq., 6750 Stapleton South Dr., #200, Denver, CO 80216 (For Respondents)
BY: __________A. Hurtado__________