Opinion
W.C. No. 4-182-454
February 12, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), insofar as it denied her requests for a change of physician, and medical benefits subsequent to the May 3, 1996 hearing. We affirm the order in part, set it aside in part, and remand for further proceedings.
The claimant suffered a compensable injury to both knees on July 17, 1993. Subsequently, she moved to Massachusetts where her authorized treating physician providing primary care was Dr. Ramos. Dr. Ramos was not Level II accredited.
The ALJ found that, on October 3, 1994, Dr. Ramos examined the claimant "and provided a report." Dr. Ramos also provided a report dated November 17, 1994. In these reports, Dr. Ramos opined that the claimant had "reached maximum medical improvement, had no permanent medical impairment," and "needed no further treatment." The reports also indicated that the claimant was discharged from treatment. The respondents then filed a final admission of liability on December 5, 1994.
Subsequently, the claimant applied for a hearing on the issues of additional medical benefits, change of physician and "medical treatment after max. improvement." However, the claimant did not request an independent medical examination (IME) to contest Dr. Ramos' finding concerning the date of maximum medical improvement (MMI).
After being discharged by Dr. Ramos, the claimant treated with Dr. Micheli. Although the respondents initially refused to authorize Dr. Micheli, they eventually notified him that he was added "as a provider in our system." However, the respondents refused to pay Dr. Micheli's bills.
Implicitly relying on § 8-42-107(8)(b)(I)-(III), C.R.S. (1996 Cum. Supp.), the ALJ concluded that she had "no jurisdiction to reconsider Dr. Ramos' findings" concerning MMI, and award additional medical benefits. Specifically, the ALJ determined that the claimant's failure to obtain a Division-sponsored IME meant she was legally precluded from authorizing a change in the treating physician to Dr. Micheli, or awarding medical benefits after the date of the hearing.
On review, the claimant first contends that the record does not support the ALJ's conclusions concerning additional medical treatment. The claimant argues that she was precluded from proving the need for additional medical treatment because the ALJ incorrectly ruled that Dr. Ramos' finding of MMI was unreviewable absent an IME. We conclude that the ALJ partially misapplied the law.
In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court of appeals held that a party may not circumvent the IME procedures of § 8-42-107(8)(b) by obtaining a change of physician subsequent to the date the treating physician opines that the claimant has reached MMI. The court reasoned that, to the extent a claimant seeks a change in physicians to obtain treatment for purposes of curing the injury, the claimant is making a "constructive challenge" to the authorized treating physician's determination of MMI. Thus, an IME is mandated by the statute.
However, the Story court also held that a claimant may seek a change in physicians, subsequent to the treating physician's determination of MMI, if the purpose of the change is to select a physician to provide ongoing medical benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The court stated that, in view of § 8-43-404(5)(a), C.R.S. (1996 Cum. Supp.), it could "see no reason why a claimant would be precluded from seeking or obtaining a change of physicians after having reached MMI," if the purpose of the change is to provide Grover care.
Applying these principles here, we conclude that the ALJ properly declined to allow a change of physicians, or to award additional medical benefits, for the purpose of "curing" the effects of the claimant's industrial injury. Thus, to the extent the ALJ concluded that claimant was not entitled to present evidence for the purpose of constructively challenging Dr. Ramos' MMI determination, the order is correct. Story v. Industrial Claim Appeals Office, supra.
However, to the extent that the ALJ concluded that § 8-42-107(8)(b) precludes her from authorizing a change of physicians for purpose of providing Grover medical benefits, she erred. As held in Story, § 8-42-107(8)(b) presents no procedural bar to awarding Grover medical benefits, or authorizing a change in physicians to provide Grover benefits.
In their brief, the respondents have argued that the record does not contain substantial evidence to support an award of ongoing medical benefits under Grover v. Industrial Commission, supra. However, all that is needed is evidence that "future medical treatment will be reasonably necessary to relieve the claimant from the effects of the injury or to prevent further deterioration of his or her condition." Such evidence may include, but is not limited to, evidence that a particular course of treatment will be required to alleviate the effects of the injury. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995).
Here, the record contains evidence that the claimant was treated by Dr. Micheli subsequent to the attainment of MMI. Dr. Micheli prescribed physical therapy, and indicated that the claimant might benefit from "therapeutic massage" under the direction of her physical therapist. Thus, the record contains some evidence from which the ALJ might find that medical treatment, subsequent to the date of MMI, is necessary to relieve the claimant from the effects of the industrial injury.
Thus, the matter must be remanded to the ALJ for a determination of whether the claimant is entitled to medical benefits under Grover v. Industrial Commission, and if so, who should provide these benefits. In this regard, we note that the ALJ referred to a report of Dr. Ramos allegedly authored on October 3, 1994. We are unable to find this report in the record, and cannot tell whether it was offered into evidence. Obviously, it is impermissible to rely on the report if it was not received into evidence.
We have also considered the claimant's argument that the ALJ prevented her from presenting evidence concerning the need for future medical treatment. We disagree with this argument.
As we have indicated, the ALJ permitted the claimant to present documentary medical evidence in support of her contention that she is entitled to additional medical treatment. Moreover, we agree with the respondents that the ALJ offered the claimant the opportunity to introduce whatever additional evidence she desired to present. Specifically, at the conclusion of the hearing, the following colloquy occurred:
"THE COURT: Mr. Waldmann do you have something?
MR. WALDMANN: No. We are satisfied, at this point." (Tr.p. 14).
Under these circumstances, the claimant waived the opportunity to present additional testimonial evidence. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987) (counsel may waive rights by conduct at the hearing).
IT IS THEREFORE ORDERED that the ALJ's order dated June 10, 1996, is affirmed insofar as it held that the claimant is not entitled to additional medical treatment or a change in physicians for the purpose of curing the effects of the industrial injury.
IT IS FURTHER ORDERED that the order is set aside insofar as it held that the claimant is not entitled to Grover medical benefits, or a change in physicians to provide such benefits. The matter is remanded for entry of a new order concerning this issue.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed February 12, 1997 to the following parties:
Pamela Bouvier, 215 South Avenue, Weston, MA 02193
Wooglins Deli, c/o Ivan Incorporated, 823 Tejon St., Colorado Springs, CO 80393-4707
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Steven R. Waldmann, Esq., 303 S. Circle Dr., #203, Colorado Springs, CO 80910-3000 (For Claimant)
By: ________________________________________________