W.C. No. 4-287-889Industrial Claim Appeals Office.
October 19, 1999
ORDER
The respondents seek review of an order of former Administrative Law Judge Wells (ALJ Wells) which awarded medical impairment benefits for psychological impairment. We set aside the order.
On February 13, 1996, the claimant suffered bilateral knee injuries. The respondents admitted liability and referred the claimant to Dr. Bergland for treatment. Dr. Bergland did not diagnosis or treat a psychological injury. However, in an order dated November 20, 1997, ALJ Stuber determined that the claimant suffered a compensable psychological injury. ALJ Stuber also found the respondents failed to provide treatment for the psychological injury. Therefore, ALJ Stuber determined that the right to select a physician to treat the psychological injury passed to the claimant, who selected Dr. Michelli as the authorized treating physician.
The claimant suffered a separate, compensable injury in February 1997 when he was robbed at gunpoint. Dr. Bergland referred the claimant to Dr. Shockney who diagnosed Post Traumatic Stress Disorder. Dr. Shockney opined the claimant suffered 6 to 15 percent permanent psychological impairment from the 1997 injury. Dr. Bergland reduced the rating to 5 percent. The respondents admitted liability in accordance with Dr. Bergland’s rating.
On August 18, 1998 Dr. Michelli placed the claimant at maximum medical improvement (MMI) for the psychological injury and opined the claimant suffered 10 percent permanent psychological impairment from the 1996 injuries. In Memorandum dated August 24, 1998, Dr. Bergland disagreed and opined that the claimant suffered no permanent psychological impairment from the 1996 injury. The respondents filed a Final Admission of Liability for permanent partial disability benefits consistent with Dr. Bergland’s rating of 13 percent medical impairment of the lower extremity. The claimant objected and requested an award of permanent disability benefits for psychological impairment.
ALJ Wells rejected Dr. Bergland’s opinion that the claimant suffered no permanent psychological impairment from the 1996 injury. In support, ALJ Wells found that ALJ Stuber’s final order was dispositive on the cause of the claimant’s psychological injury and that Dr. Bergland is not the “authorized treating physician who provided the primary care” for the psychological injury. ALJ Wells also determined that in the absence of a Division-sponsored independent medical examination (IME) Dr. Michelli’s rating is binding because Dr. Michelli is the “primary care” physician for the psychological component of the injury. Relying on our conclusions in Kellogg v. Tritsch W.C. No. 4-187-393 (May 23, 1995), ALJ Wells further determined that the respondents waived the argument that Dr. Michelli’s rating is invalid because he is not a Level II accredited physician. Therefore, ALJ Wells ordered the respondents to pay permanent partial disability benefits in accordance with Dr. Michelli’s rating.
On review the respondents contend ALJ Wells exceeded his authority in hearing the claim for additional permanent disability benefits because the claimant failed to obtain a Division-sponsored IME to dispute Dr. Bergland’s opinion that there is no psychological impairment from the 1996 injury. We agree, and therefore, set aside the ALJ’s order.
Former § 8-42-107(8)(b), C.R.S. 1995, which applies to this February 1996 injury, provides that MMI is to be determined by the “authorized treating physician who has provided the primary care.” The 1995 version of § 8-42-107(8)(c), states that once MMI has been determined pursuant to § 8-42-107(8)(b), the claimant’s medical impairment shall be determined by the “the authorized treating physician.” The statute also provides that a physician who determines medical impairment must be Level II accredited. However, the statute does not require that the rating physician be the “authorized treating physician who has provided the primary care,” and we cannot read non-existent provisions into the statute. Schelly v. Industrial Claim Appeals Office, 961 P.2d 547
(Colo.App. 1997). Consequently, ALJ Wells erred insofar as he determined that an authorized treating physician who has not provided the “primary care” may not rate permanent impairment.
Further, ALJ Wells erred in finding that Dr. Bergland is not an authorized treating physician for purposes of rating the claimant’s mental impairment under § 8-42-107(8)(c). The term “authorized treating physician” refers to a physician who is legally authorized to treat the industrial injury at the respondents’ expense. See § 8-42-101 C.R.S. 1999. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501
(Colo.App. 1995). The mere fact that a physician does not treat the claimant for a particular component of an injury does not preclude the physician from being an “authorized treating physician.” This is true because the physician’s authorization is limited to treatment of the industrial injury. Thus, to the extent that the physician does not believe a particular medical problem is related to the industrial injury, the physician may refuse to treat the problem.
Dr. Bergland did not believe there was a psychological component to the 1996 injury, and therefore, Dr. Bergland did not provide psychological treatment or refer the claimant for psychological treatment. However, he was “authorized” to provide psychological treatment if he found it appropriate.
Moreover, ALJ Stuber’s order does not compel a contrary conclusion. ALJ Stuber expressly found that Dr. Bergland is the authorized treating physician who “provided the primary care in regard to the physical injury.” (Finding of Fact 1, November 20, 1997). ALJ Stuber did not deauthorize Dr. Bergland. In fact, ALJ Stuber awarded ongoing temporary disability benefits because Dr. Bergland has not placed the claimant at MMI. The award reflects ALJ Stuber’s implicit recognition of Dr. Bergland’s status as an authorized treating physician for both the physical and psychological components of the injury.
In view of our conclusion that Dr. Bergland is an authorized treating physician for purposes of rating the claimant’s psychological impairment, this case is factually distinguishable from the circumstances in Kellogg v. Tritsch, supra. Therefore, ALJ Wells erroneously determined that the respondents waived the argument that Dr. Michelli’s rating is invalid.
In Kellogg, the claimant’s Level II treating physician for a physical injury referred the claimant to Dr. Michelli for psychological treatment. The Level II physician rated the claimant’s permanent physical impairment and Dr. Michelli rated the claimant’s psychological impairment. However, because Dr. Michelli was not Level II accredited, the insurer refused to pay permanent disability benefits for psychological impairment.
The Level II accredited physician in Kellogg did not purport to rate the claimant’s psychological impairment and the ALJ found that he did not do so. Consequently, we declined to construe the Level II physician’s impairment rating as encompassing a “zero” rating for psychological impairment. Furthermore, we held that where there was no rating from a Level II physician the Rules of Procedure, Part IV(N)(4)(d), 7 Code Colo. Reg. 1101-3 at 7 (1995) [amended in 1996], placed the burden on the insurer to request a Division-sponsored IME to obtain a rating from a Level II accredited physician. In Kellogg, the insurer did not request an IME, and affirmatively refused to do so. Under those circumstances, we concluded the respondents waived the right to a rating from a Level II accredited physician. Consequently, we upheld the ALJ’s award of permanent partial disability benefits based on the rating of Dr. Michelli.
Here, unlike the facts in Kellogg, a Level II accredited physician considered but refused to rate the claimant’s psychological impairment. Dr. Bergland explicitly opined there was no permanent psychological impairment from the 1996 injury, and stated that Dr. Michelli’s rating “borders on nonsense.” (August 24, 1998). Consequently, this is not a situation where there is no psychological impairment rating from a Level II accredited physician. Therefore, Kellogg is inapplicable.
In any case, Rule IV(N)(4) was amended effective November 30, 1996 (19CR11). See Rosa v. Industrial Claim Appeals Office, 885 P.2d 331 (Colo.App. 1994) (procedural amendments apply to ongoing claims). As amended, Rule IV(N)(4)(a)(ii) at 6.02, provides that “if the authorized treating physician determining MMI is level II accredited, within 20 days after the determination of MMI, such physician shall determine the claimant’s permanent.”
On May 22, 1998, Dr. Bergland placed the claimant at MMI for the psychological injury. Further, ALJ Wells found that Dr. Bergland found no permanent psychological impairment. (Finding of Fact 9). Because Dr. Bergland is the only Level II accredited physician to rate the claimant’s permanent psychological impairment for the 1996 injury, his opinion is binding unless the claimant undergoes a Division-sponsored IME. Furthermore, §8-42-107(8)(c) provides that no hearing shall be held on permanent partial disability until completion of the Division-sponsored IME.
The claimant has not undergone a Division-sponsored IME to dispute Dr. Bergland’s psychological impairment rating. Therefore, ALJ Wells exceeded his authority by awarding additional permanent partial disability benefits for psychological impairment from the 1996 injury.
In reaching our conclusions, we recognize that ALJ Stuber rejected Dr. Bergland’s opinion that there was no compensable psychological injury. However, ALJ Stuber did not purport to determine whether the psychological injury resulted in any permanent impairment. Furthermore, determining the “cause” of the claimant’s impairment is inherent in the treating physician’s rating. Egan v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA0821, November 13, 1998). The mere fact that Dr. Bergland did not agree with ALJ Stuber concerning the “cause” of an alleged psychological injury did not preclude Dr. Bergland from determining whether the psychological injury (which ALJ Stuber found existed) resulted in permanent impairment. If follows, that ALJ Stuber’s order is not conclusive of the issue before ALJ Wells.
In view of our disposition we need not address the respondents remaining arguments.
IT IS THEREFORE ORDERED that ALJ Well’s order dated December 14, 1998, is set aside.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this order may be 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. 1999.
Copies of this decision were mailed October 19, 1999 to the following parties:
Patrick Wright, 4158 Vernal Circle, Colorado Springs, CO 80916
United Parcel Service, Attn: Steve Shomaker, 5020 Ivy St., Commerce City, CO 80022
Liberty Mutual Insurance Company, Attn: Brian Seigel, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq. and Mark A. Neider, Esq., Larimer Corporate Plaza, 1675 Larimer St., #710, Denver, CO 80202 (For Respondents)
BY: A. Pendroy