W.C. No. 3-883-959.Industrial Claim Appeals Office.
November 22, 1999.
FINAL ORDER.
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) insofar as it determined that Dr. Ladin is the authorized treating physician, and declined to appoint a treating psychologist or psychiatrist. The claimant also raises other arguments concerning the effects of the order. We affirm.
It is undisputed that in 1986 and 1987 the claimant sustained compensable injuries to her right upper extremity and neck. Ultimately, it was stipulated the claimant is permanently and totally disabled, and the respondent remains liable for the claimant’s medical treatment. The claimant has received extensive medical treatment for her injuries including chiropractic treatments, dental treatments, and psychological treatment.
In 1996 the claimant moved to Arizona where the respondent appointed Dr. Ladin as the authorized treating physician. On April 21, 1998, Dr. Ladin stated that the claimant continued to “complain of diffuse musculoskeletal pain symptomatology effecting [sic] essentially her entire body from head to toe.” Further, the claimant was complaining of leg weakness which caused her to fall. Dr. Ladin advised the claimant that he disagreed with the use of narcotic medications for chronic pain management and “would not recommend any further therapeutic injections or interventional forms of treatment.” Dr. Ladin also stated that the claimant “became quite upset” and he recommended that she seek treatment from some other physician because she had an “apparent loss of confidence” in his treatment. Dr. Ladin stated that he would “not be opposed” to the claimant transferring care to Dr. Fanto, who had been providing treatment for the claimant’s lower extremity symptoms.
In 1998 the claimant sought a hearing to determine her entitlement to numerous devices allegedly necessary for treatment of her lower extremity condition. The claimant also contended that Dr. Fanto became an authorized treating physician by virtue of the April 21 “referral” from Dr. Ladin, and, in any event, the claimant sought a change of physician to Dr. Fanto. Finally, the claimant contended that the respondent should be required to appoint a psychologist or psychiatrist to treat the psychiatric effects of the injury. (Tr. pp. 5-7).
At the hearing, the respondent presented the testimony and reports of Dr. Roth, an independent medical examiner. Dr. Roth opined the claimant suffers from a pre-existing “behavioral disorder” which currently generates her symptoms and causes her to seek unnecessary treatment. Dr. Roth described the claimant’s lower extremity problems as “hysterical” in nature, though he conceded that there may be some “medical condition” affecting her upper extremity pain. Dr. Roth specifically recommended against further chiropractic or psychological treatment, and suggested that the claimant continue to see Dr. Ladin for purposes of “judicious management of medications.” (Tr. pp. 55-57, 68).
Expressly crediting the testimony of Dr. Roth and the reports of Dr. Ladin, the ALJ found the claimant’s lower extremity problems are unrelated to the industrial injury. Consequently, the ALJ denied the claim for the devices designed to treat the lower extremity problems.
The ALJ also found that although the claimant suffered compensable upper extremity injuries in 1986 and 1987, her “current condition and symptoms which seem to have affected her entire body are primary [sic] psychological and a function of the Claimant’s behavior.” Thus, again crediting Dr. Roth’s testimony, the ALJ found that “reasonable and necessary medical treatment consists of examination, medication management, and other treatment prescribed only by Dr. Ladin which may include such treatment modalities as chiropractic treatment, physical therapy and exercise.” The ALJ did order the respondents to pay for treatment provided by Dr. Fanto between April 21, 1998, and September 4, 1998, because Dr. Fanto “may have relied” on Dr. Ladin’s April 21 “suggestion” that the claimant be treated by another physician. However, the ALJ denied the request for a change of physician and stated that Dr. Ladin “remains the authorized treating physician in this case.” Finally, the ALJ stated that if Dr. Ladin was unable or unwilling to continue treatment, the respondent retained “the right to designate a new provider to provide appropriate medical treatment.”
I.
On review, the claimant first contends the ALJ improperly delegated to Dr. Ladin the authority to determine whether future medical treatment is reasonable and necessary. The claimant concedes the ALJ may determine whether current medical treatment is reasonable and necessary, but asserts the ALJ cannot assign this authority to the treating physician. We perceive no error.
Even if a claimant has received authorized medical treatment for a condition related to the injury, the ALJ retains jurisdiction to determine whether subsequent medical benefits are reasonable and necessary to treat the claimant’s current
condition. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Here, the ALJ found the vast majority of the claimant’s current symptoms result from the pre-existing behavioral disorder, not the industrial injury. Therefore, the ALJ determined the claimant’s “current condition” requires only the treatment recommended by Dr. Roth and Dr. Ladin. (Finding of Fact 11; Conclusion of Law 3). We do not read the ALJ’s order as an attempt to prohibit the claimant from seeking a future hearing to establish that other treatments, including chiropractic and dental treatments, are reasonable and necessary should such treatments be refused or denied by Dr. Ladin or the respondent. The ALJ merely interpreted the record as it exists at this time.
For the same reason we reject the claimant’s assertion that the ALJ erred in failing to designate a treating psychologist or psychiatrist. The claimant’s assertion notwithstanding, the ALJ did not find the claimant’s current symptoms are the result of the industrial injury. To the contrary, the ALJ determined that the source of the claimant’s psychological problems, including her addiction to treatment, is the result of a pre-existing behavioral disorder. This finding is amply supported by the testimony and reports of Dr. Roth, and therefore, we may not interfere with it on review. Wal-Mart Stores, Inc., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0028, September 30, 1999) (question of whether need for medical treatment is causally related to industrial injury is one of fact for determination by ALJ).
II.
The claimant next contends the ALJ erred in determining that the respondent retains the right to designate an authorized treating physician in the event Dr. Ladin is unable or unwilling to continue the claimant’s treatment. Relying on our decision i Buhrmann v. University of Colorado Health Sciences Center,
W.C. No. 4-253-689 (November 4, 1996), aff’d. University of Colorado Health Sciences Center v. Buhrmann, (Colo.App. No. 97CA0739, October 16, 1997) (not selected for publication), the claimant argues the right of first selection automatically passes to her in the event the respondent fails to provide a physician willing to provide treatment. We find no error.
Section 8-43-404(5)(a), C.R.S. 1999, provides that the employer or insurer has the right in the first instance to select the physician who attends the injured employee. The duty to designate the treating physician arises when the employer first has knowledge of the injury; if no designation is made, the right of selection passes to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). In cases where the claimant is dissatisfied with the designated treating physician the statute affords a procedure for requesting and obtaining a change of physician. Yeck v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA2497, August 19, 1999).
It is true that the respondent’s right to select the treating physician includes the duty to select a physician who will not refuse to treat the claimant for non-medical reasons. Cf. Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1259
(Colo.App. 1988). However, it does not follow that in cases where the designated physician refuses to treat the claimant that the right of first selection instantaneously passes to the claimant. Rather, in our view, if a designated physician refuses to treat the claimant, the respondent’s duty to select a replacement physician arises immediately upon the respondent’s knowledge that the designated physician has refused to treat. Rogers v. Industrial Claim Appeals Office, supra. If the respondent then refuses or neglects to select a replacement physician the right of first selection passes to the claimant. Our decision in Buhrmann v. University of Colorado Health Sciences Center, supra, is not authority to the contrary. In that case we stated that where the designated physician refuses to treat for non-medical reasons, “and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant.” (Emphasis added).
It follows the ALJ committed no error when he stated the respondent retains the right to appoint a new authorized treating physician in the event Dr. Ladin refuses or is unable to treat the claimant. Only if the respondent fails to designate a new treating physician upon learning of Ladin’s refusal to treat would the right of first selection pass to the claimant.
III.
The claimant next contends the ALJ erred in “reversing” Dr. Ladin’s referral to Dr. Fanto. The claimant’s argument assumes that Dr. Ladin’s April 21, 1998, note constituted a valid referral to Dr. Fanto for purposes of establishing Fanto as an authorized physician. The claimant then asserts that the ALJ gave “no reason” for changing the claimant’s “ongoing medical care from Dr. Fanto to Dr. Ladin, other than Respondent wanted to prove its power by forcing Claimant to see Dr. Ladin.” We find no error.
Initially, we note that when making findings of fact the ALJ is not required to address every issue raised or evidence which is unpersuasive. Rather, it is sufficient for the ALJ to render specific findings concerning evidence which he finds persuasive and determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The question of whether a valid referral has been made from one physician to another is one of fact for determination by the ALJ Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854
(Colo.App. 1995). In determining whether the treating physician has made a valid referral the ALJ may consider whether the physician exercised independent judgment regarding the advisability of a second opinion or additional treatments. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
We believe it implicit in the ALJ’s order that he did not find Dr. Ladin’s April 21 note constituted to a valid referral to Dr. Fanto. To the contrary, the ALJ explicitly stated that his order compensating Dr. Fanto for treatment rendered between April 21 and September 4 was based on Fanto’s detrimental reliance on the note, “and does not in any way change the treating physician relationship.” Thus, the claimant’s argument is based on the false premise that the ALJ considered Dr. Fanto to be an authorized treating physician.
Moreover, the record contains substantial evidence to support the ALJ’s implicit conclusion that the April 21 note did not authorize Dr. Fanto. Read in a light most favorable to the respondent, the note does not indicate that Dr. Ladin believed the claimant needed additional treatment, or believed that his treatment had been inadequate or incomplete. Moreover, the reference to Dr. Fanto does not constitute a positive endorsement of Fanto’s treatment, but merely states that Dr. Ladin “would not be opposed” to a transfer. Thus, the ALJ could logically conclude that Dr. Ladin was not referring the claimant to Dr. Fanto for a second opinion or additional treatment based on independent medical judgment, but was merely agreeing that treatment could be transferred if the claimant no longer had confidence in Ladin’s treatment and was unwilling to comply with his recommendations. It follows the ALJ did not improperly “change” treating physicians from Dr. Fanto to Dr. Ladin. To the contrary, the ALJ concluded that Dr. Ladin was, and always had been, the authorized treating physician during the relevant period of time.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 7, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ David Cain
_____________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (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 November 22, 1999 to the following parties:
Lucinda Wesley, 23297 E. Cactus Forest Rd., Florence, AZ 85232.
King Soopers, Attn: Liana Johnson, P.O. Box 5567 T. A., Denver, CO 80217.
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349, (For Claimant).
John G. Napier, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondent)
BY: A. Pendroy