W.C. No. 4-138-655Industrial Claim Appeals Office.
July 17, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which held them liable for medical treatment provided by Dr. Rook prior to July 27, 1995. We affirm.
The claimant suffered a compensable injury on November 5, 1991, which was treated by Dr. Peters. On May 19, 1993, Dr. Peters determined the claimant to be at maximum medical improvement with permanent impairment of twenty-five percent of the whole person. Thereafter, the claimant was examined by Dr. Ballard who opined that the claimant required psychiatric treatment for severe depression related to the injury.
In May 1995, the parties entered into a “Stipulated Agreement” that “Claimant currently is not at maximum medical improvement due to psychological issues.” The parties also stipulated that “Dr. Michael Moffett is authorized to provide psychiatric care to Claimant.”
During his course of treatment, Dr. Moffett referred the claimant to Dr. Rook, a physiatrist. Dr. Rook conducted diagnostic testing and prescribed further treatment including use of a hot tub.
The respondents denied liability for Dr. Rook’s treatment on grounds that Dr. Peters is the authorized treating physician for the physical components of the claimant’s injury, and that Dr. Peters considered the recommendation for a hot tub unnecessary. However, on July 27 Dr. Peters made a direct referral of the claimant to Dr. Rook. Consequently, the respondents do not dispute liability for Dr. Rook’s treatment after July 27.
The ALJ determined that the term “psychiatric care” refers not only to counseling and anti-depressants, but also to “other types of care calculated to improve Claimant’s severe depression.” The ALJ also found that Dr. Moffett’s treatment plan included a referral to Dr. Rook for treatment of the claimant’s chronic pain problems. Therefore, the ALJ determined that the referral to Dr. Rook was within the scope of Dr. Moffett’s “psychiatric care,” and that Dr. Rook became an authorized treating physician in the normal course of a referral from Dr Moffett. Crediting the claimant’s testimony the ALJ further found that a hot tub was reasonable and necessary to cure or relieve the effects of the claimant’s injury. Therefore, the ALJ ordered the respondents to pay for the disputed medical treatment by Dr. Rook, including the reasonable cost of a hot tub.
On review, the respondents contest the ALJ’s finding that Dr. Moffett was authorized to refer the claimant to Dr. Rook for treatment. The respondents argue that the ALJ’s determination undermines Dr. Peters’ status as the “primary care physician” of the physical components of the claimant’s injury. The respondents also contest the ALJ’s finding that Dr. Rook’s treatment was “psychiatric care.” The respondents argue that under the ALJ’s analysis all treatment which relieves pain is psychiatric care, and thus, Dr. Peters’ treatment was also “psychiatric care.” We reject these arguments.
Initially we note that the parties’ Stipulated Agreement does not contain any limitation on Dr. Moffett’s authorization to make referrals for “psychiatric care.” Nor do the respondents make such an assertion. Thus, the pertinent issue is whether the ALJ properly determined that Dr. Moffett’s referral to Dr. Rook fell within the meaning of “psychiatric care.”
Because the ALJ’s determination is essentially factual, it is binding if supported by substantial evidence in the record and the ALJ’s plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854
(Colo.App. 1995). Further, the substantial evidence test requires that we defer to the ALJ’s credibility determinations as well as her assessment of the probative weight and sufficiency of the evidence she found persuasive. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993).
Here, the ALJ was persuaded by Dr. Moffett’s report of April 26, 1995, which includes his medical opinion that the claimant’s “fibromyalgia and chronic pain are probably the sources of the [claimant’s] depression.” (Finding of Fact 8). The ALJ also relied upon Dr. Moffett’s records which indicate that his “treatment plan” included a referral to Dr. Rook for purposes of obtaining new ideas to control the claimant’s pain. Based upon this evidence, the ALJ could, and did, infer that treatment of the claimant’s psychiatric condition was so intermingled with the need to relieve the claimant’s chronic pain that the treatments provided by Dr. Rook were within the scope of psychiatric care.
The ALJ’s inference is buttressed by Dr. Peters’ reports which describe the interrelationship between the claimant’s fibromyalgia and depression as a cause of the claimant’s continued disability. For example, Dr. Peters’ December 1992 report stated that the claimant’s “overall problem” was the “despair that comes with a chronic pain syndrome.” Dr. Peters’ records also indicate that his treatment plan included medication for the claimant’s “pain and depression.” See Peters’ report June 29, 1993.
We also note that Stipulated Agreement does not define “psychiatric care” and the respondents do not offer any statute, rule or case law which limits “psychiatric care” to treatment forms which do not affect physical functioning. Under these circumstances, we decline to conclude as a matter of law that the ALJ erred in her determination that Dr. Rook’s treatment fell within the scope of “psychiatric care.”
We also reject the respondents’ argument that the claimant’s request for payment of Dr. Rook’s treatment is a constructive challenge to Dr. Peters’ determination of MMI. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (ALJ lacks authority, in the absence of an independent medical examination, to hear request for change of provider if request for additional treatment is constructive challenge to determination of MMI). In the Stipulated Agreement, the respondents expressly concede that the claimant is not at MMI, and therefore, they waived any reliance on the MMI provisions. Consequently, Story is not applicable to these circumstances.
Neither are we persuaded that Dr. Moffett’s referral to Dr. Rook undermines Dr. Peter’s status as the “primary care physician.” As the respondents concede, the claimant may have multiple primary care physicians. Rohr v. Interim Health Care, W.C. No. 4-177-445, September 13, 1994. In fact, the respondents implicitly contemplated that scenario when they stipulated to Dr. Moffett’s authorization.
Moreover, the ALJ’s findings support her determination that Dr. Rook became an authorized treating physician in the normal progression of a referral from an authorized treating physician. See Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Consequently, we need not consider the respondents’ remaining arguments on the authorization issue.
For similar same reasons we reject the respondents’ argument that Dr. Rooks’ recommendation for a hot tub cannot be considered reasonable treatment to cure or relieve the psychological effects of the injury. In fact, the ALJ expressly credited the claimant’s testimony that the regular use of hot tub reduces her pain and in turn relieves her depression. (Tr. pp. 14, 16).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 29, 1996, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 17, 1996 to the following parties:
Carmie M. Zarr, P.O. Box 67, Canon City, CO 81212
Colorado Dept. of Corrections, Payroll Department, Attn: Lorie Embleton, P.O. Box 1010 Canon City, CO 81212
Colorado Compensation Insurance Authority, Attn: C. Boyd, Esq. (Interagency Mail)
Douglas A. Thomas, Esq. Douglas P. Ruegsegger, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For CCIA)
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
BY: _______________________