Opinion
W.C. No. 4-340-159
November 18, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ Harr) which denied a claim for additional temporary disability benefits and a request for a change in the authorized treating physician. The claimant argues the ALJ should have granted a post-hearing motion to receive additional evidence. The claimant also argues the ALJ abused his discretion in denying the request for a change of physicians. We affirm.
This claim has a complex factual and procedural history which we shall summarize. The claimant sustained a compensable back injury in March 1997, and underwent back surgery at L5-S1 in June 1997. In October 1997, the claimant came under the care of Dr. Primack, who prescribed various treatments including physical therapy and medication for the claimant's pain. In May 1998, Dr. Primack placed the claimant at maximum medical improvement (MMI) with a 23 percent whole person impairment rating. After MMI, Dr. Primack continued to monitor the claimant's condition and prescribed various medications.
In April 1999, the claimant underwent an examination by Dr. Ryan. Dr. Ryan noted the claimant's symptoms of back pain, leg pain, and incontinence. He opined the claimant needed additional diagnostic studies of the lumbar spine to rule out cord compromise and recommended additional physical therapy. Dr. Primack reviewed Dr. Ryan's report and disagreed with it. Dr. Primack stated his examination ruled out a connection between the injury and the incontinence problem, and opined the claimant received an adequate course of physical therapy.
The claimant underwent a Division-sponsored independent medical examination (DIME) in November 1999. The DIME physician agreed with Dr. Primack's date of MMI and assigned a 15 percent whole person impairment rating for the claimant's back and leg symptoms. Although the DIME physician noted the claimant reported symptoms of depression, he did not assign any impairment for that condition.
In December 1999, the respondents filed a final admission of liability based on the DIME physician's impairment rating. The claimant timely objected.
In August 1999, the claimant moved to Arizona. However, she was again examined by Dr. Primack in November 2000. Dr. Primack noted the claimant was deconditioned following a recent pregnancy and might need additional physical therapy "as a matter of maintenance." He noted the claimant was reaching the end of medical treatment and requested to see her in February 2001.
The claimant sought treatment from Dr. Osborne in Arizona. Dr. Osborne noted the claimant's ongoing symptoms and recommended additional diagnostic tests. He opined that the claimant never reached MMI, and that her condition had worsened.
The claimant filed a petition to reopen alleging a worsened condition. She sought temporary disability benefits commencing in August 1999, and a change of physician to Dr. Osborne.
A hearing was held on these issues on February 5, 2002. In his order dated February 14, 2002, ALJ Harr found the claimant would be entitled to additional benefits after MMI, without overcoming the DIME physician's opinion on MMI, if she proved a worsened condition. However, the ALJ found the claimant's testimony and Dr. Osborne's report were insufficient to prove a worsened condition after MMI. In support, the ALJ noted that Dr. Osborne apparently did not consider the claimant's remission of symptoms during her pregnancy in the year 2000. The ALJ also found the claimant's contention that her depression had worsened constituted a "constructive challenge" to the DIME physician's implicit finding that any depression was unrelated to the industrial injury. The ALJ determined the claimant failed to overcome the DIME physician's opinion concerning the cause of the depression.
ALJ Harr also determined the claimant's request for a change of physician to Dr. Osborne constituted a constructive challenge to the DIME physician's determination of MMI. However, the ALJ found that Dr. Osborne's opinion did not constitute clear and convincing evidence to overcome the DIME physician's finding that the claimant was at MMI. The ALJ specifically noted that the treatment proposed by Dr. Osborne was similar to that which Dr. Ryan had proposed before the DIME. Consequently, the ALJ denied the request for a change of physician.
I.
On review, the claimant does not directly challenge the sufficiency of the evidence to support ALJ Harr's finding that she failed to prove a worsened condition after MMI. Instead, the claimant argues ALJ Harr erred by implicitly denying her post-hearing motion to "supplement the record." The motion, filed on September 13, 2002, alleges that on July 31, 2002, a hearing was held before ALJ Jones on the claimant's petition to reopen based on error or mistake. According to the claimant's brief, the issue before ALJ Jones was whether the claim should be reopened because, at the time of the hearing before ALJ Harr, "both attorneys were operating under the mistaken impression" that the claim was closed. The claimant argues ALJ Harr should receive and consider the ruling of ALJ Jones when she issues a ruling on the issue. We are not persuaded.
Section 8-43-301(5), C.R.S. 2002, provides that when ruling on a petition to review the ALJ has jurisdiction to set the matter for further hearing. Further, § 8-43-207(1)(j), C.R.S. 2002, affords an ALJ authority, for good cause shown, to "adjourn any hearing to a later date for the taking of additional evidence." However, the ALJ has wide discretion in determining whether to continue the proceedings for the taking of additional evidence, and we may not interfere unless an abuse of discretion is shown. See IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Among the factors which an ALJ may consider are whether the additional evidence might be outcome determinative, and the inconvenience and expense to the opposing party if the proceedings are further delayed. IPMC Transportation Co. v. Industrial Claim Appeals Office, supra; Potomac Insurance Co. v. Industrial Claim Appeals Office, 744 P.2d 765 (Colo.App. 1987).
Here, we conclude that by transmitting the matter to us the ALJ implicitly denied the claimant's request to delay adjudication of the claim to consider the ruling of ALJ Jones. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983). Further, we perceive no abuse of discretion in this decision.
The holding of ALJ Jones would not, in our opinion, be outcome determinative of the issues before ALJ Harr. Even if the claim remained "technically open" at the time it was presented to ALJ Harr, the claimant was not entitled to additional temporary disability benefits, or medical benefits to improve her condition, unless she overcame the DIME physician's MMI determination by clear and convincing evidence, or proved that her condition worsened after MMI so that she was no longer at MMI. This is true because the right to temporary disability benefits, and the right to medical benefits to improve the condition, ceases at MMI, and the DIME physician's determination of MMI is given presumptive effect unless overcome by clear and convincing evidence. Section 8-42-107(8)(b)(III), C.R.S. 2002; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). If the claimant has attained MMI, the claimant may be entitled to additional temporary disability benefits and medical benefits to improve the condition if the condition subsequently worsens. And, the DIME physician's opinion concerning whether or not there has been a worsening is not entitled to any special weight. Cordova v. Industrial Claim Appeals Office, ___ P.3d __ (Colo.App. No. 01CA0852, February 28, 2002); cf. Rhodes v. Pyramid Enterprises, Inc., W.C. No. 4-360-050 (September 16, 1999) (even if claim was not formally closed, ALJ could award additional medical benefits to improve the claimant's condition where evidence showed claimant's condition worsened after DIME physician determined the claimant reached MMI).
Here, ALJ Harr found as a matter of fact that the claimant did not overcome the DIME physician's finding of MMI by clear and convincing evidence. He also found the claimant failed to prove by a preponderance of the evidence that any injury-related condition worsened after she was placed at MMI in May 1998. Thus, even if the parties proceeded before ALJ Harr under the mistaken impression that the case was closed and the claimant needed to prove a worsened condition to "reopen" it, ALJ Harr made the necessary findings to justify the denial of additional benefits. It follows that even if ALJ Jones were to find the parties were mistaken concerning the procedural status of the case, ALJ Harr considered the relevant evidence and made the findings necessary to rule on the issues before him. Thus, ALJ Harr did not abuse his discretion by transmitting the matter to us for review without awaiting the outcome of the case before ALJ Jones.
II.
The claimant next contends ALJ erred in denying her request to change physicians to Dr. Osborne. The claimant reasons that it is "not efficient or logical" for her to travel from Arizona to Denver to receive treatment from Dr. Primack. We are not persuaded.
Section 8-43-404(5)(a), C.R.S. 2002, permits the ALJ to order a change in physicians on 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 ALJ Harr's order absent an abuse of discretion. Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400 (December 14, 1998).
In Story v. Industrial Claim Appeals Office, supra, the court held that an ALJ could authorize a change in the treating physician to provide post-MMI maintenance treatment so long as the change was not authorized as a method of conducting a "constructive challenge" to a treating physician's determination of MMI. The court held a treating physician's determination may only be challenged by way of the DIME procedure.
Here, ALJ Harr determined the claimant's request for authorization of Dr. Osborne was, in effect, a constructive challenge to the DIME physician's MMI determination. This was true because Dr. Osborne proposed a course of diagnostic procedures similar to those proposed by Dr. Ryan before the DIME. However, the DIME necessarily rejected the necessity of those procedures by agreeing the claimant reached MMI in 1998, as found by Dr. Primack. In fact, as the ALJ noted, Dr. Osborne expressly opined the claimant never reached MMI.
Under these circumstances, ALJ Harr did not abuse his discretion in denying the request for a change of physician. He determined the request was an attempt to circumvent the DIME process, and he certainly was not required to authorize a change for that purpose. Moreover, as the respondents argue, Dr. Primack indicated in November of 2000 that the claimant's need for active treatment was expected to terminate in 2001. Thus, the ALJ need not have considered the distance between Dr. Primack and the claimant's home as justifying a change of physician.
IT IS THEREFORE ORDERED that the ALJ's order dated February 14, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
David Cain
___________________________________
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ________November 18, 2002_____ to the following parties:
Linda Larkin, 1936 W. Zarragoza Dr., Tucson, AZ 85704
K-Mart, P. O. Box 66749, St. Louis, MO 63166-6749
K-Mart Corporation, 3100 W. Big Beaver Rd., Troy, MI 48084-3163
Anita Klebieko, McMillan Claim Service, 2785 N. Speer Blvd., Denver, CO 80211
Thomas J. Roberts, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80214 (For Claimant)
Michael W. Sutherland, Esq., 1720 S. Bellaire St., #310, Denver, CO 80222-4316 (For Respondent)
By: A. Hurtado