Opinion
W.C. No. 4-162-568
May 30, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied her request for medical benefits for treatment provided by a psychotherapist, Katherine Waidlich (Waidlich). We affirm the order in part, set it aside in part, and remand for further findings.
The sole issues before the ALJ were whether Waidlich is authorized to treat the claimant's occupational asthma, and whether Waidlich's psychotherapy was reasonable and necessary to cure or relieve the claimant from the effects of the industrial injury.
The ALJ determined that Waidlich became an authorized provider pursuant to a referral from Dr. Telatnik, the claimant's authorized treating physician. The ALJ also found that pursuant to the referral, Waidlich saw the claimant sixty-four times between August 1994 and January 1996. However, the ALJ found that Waidlich's treatment between August 1994 and June 1995, was not "reasonable, necessary or related to" the industrial injury.
Further, the ALJ found that in June 1995, the parties mutually agreed to authorize Dr. Roberts to provide necessary psychological treatment. Because, the respondent-insurer did not know at the time of the agreement that Waidlich was providing treatment, the ALJ rejected the claimant's argument that the agreement is "null and void." Instead, the ALJ determined that the claimant is bound by the agreement to authorize Dr. Roberts to provide psychological treatment commencing June 1995. Consequently, the ALJ determined that the respondents are not liable for any of the psychological treatment provided by Waidlich.
I.
On review the claimant first contends there is "no evidence" to support the ALJ's determination that Waidlich's treatment prior to June 1995 was not reasonable and necessary. Rather, the claimant contends that the medical reports by Dr. Kooken and Dr. Telatnik and the testimony of Waidlich compel a contrary finding. We disagree.
As the ALJ expressly recognized, the respondents are liable for medical treatment which is reasonable and necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. (1996 Cum. Supp.); Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993). Moreover, the ALJ properly determined that the claimant, not the respondents, bore the burden of proof to establish her entitlement to the requested benefits. See Snyder v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0679, February 6, 1997).
The determination of whether the claimant sustained her burden of proof is a question of fact for the ALJ. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Therefore, we must uphold the ALJ's determination that the claimant failed to sustain her burden, if supported by substantial evidence and plausible inferences the ALJ drew from the record. Suetrack USA v. Industrial Claim Appeals Office, supra. Furthermore, application of the substantial evidence test requires that we defer to the ALJ's credibility determinations and her assessment of the sufficiency and probative weight of the evidence. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
As argued by the claimant, Waidlich testified that the psychotherapy she provided to the claimant was reasonable and necessary to treat the claimant's occupational asthma. (Tr. August 20, 1996, p. 15). However, the ALJ expressly determined that Waidlich's testimony was not credible. (Finding of Fact 28).
It is also true that Dr. Telatnik and Dr. Kooken both recommended the claimant receive psychological treatment, and Dr. Telatnik referred the claimant to Waidlich. However, neither Dr. Telatnik nor Dr. Kooken issued an opinion concerning whether the treatment provided by Waidlich was reasonable and necessary. In fact, as noted by the ALJ, Dr. Kooken's December 12, 1994 report does not mention Waidlich's treatment. (Finding of Fact 6).
Under these circumstances, there is substantial evidence in the record from which the ALJ could, and did, infer that the claimant failed to sustain her burden to prove by a preponderance of the evidence that Waidlich's services before June 1995 were reasonably necessary to treat the industrial injury. Furthermore, this inference supports the denial of medical benefits for psychotherapy provided by Waidlich prior to June 1995. Snyder v. Industrial Claim Appeals Office, supra.
II.
Concerning Waidlich's treatment commencing June 1995, the ALJ apparently determined that the parties' agreement to authorize Dr. Roberts relieved the respondents of liability for any further treatment by Waidlich. In support, the ALJ specifically found that counsel agreed, effective June 1995, to authorize Dr. Roberts to provide "any psychological treatment that was necessitated by [the claimant's] work related injury," and that Dr. Roberts' treatment was to be "in lieu of another physician." See Conclusions of Law 4, 8.
However, we agree with the claimant that the ALJ's findings concerning the agreement are not supported by the record. Consequently, we set aside that portion of the ALJ's order concerning the respondents' liability for Waidlich's treatment commencing June 1995, and remand the matter for entry of a new order. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
The record does not contain a document setting forth the parties' agreement concerning Dr. Roberts. Instead, the terms of the stipulation were orally recited at the hearing before the ALJ on August 20, 1996. However, in reciting their agreement neither party suggested that they stipulated to a change of provider from Waidlich to Dr. Roberts. See Tr. March 20, 1996 pp. 49-52. Similarly, neither the claimant's attorney nor the respondents' attorney indicated that their stipulation was intended to terminate Waidlich's authorization and make Dr. Roberts the exclusive provider of the claimant's psychological treatment. This is true because neither attorney was aware that the claimant was receiving psychological treatment from Waidlich at the time of the agreement. Consequently, insofar as the ALJ determined that the parties agreed that Dr. Roberts was authorized to provide psychological treatment "in lieu of another physician," or construed the parties' stipulation as reflecting the claimant's waiver of the right to obtain further treatment from Waidlich, her determination is not supported by the record.
Furthermore, where, as here, there is no specific agreement to "deauthorize" a provider, a stipulation to authorize another provider does not affect the authorization of the existing providers. See Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993). Under these circumstances, Waidlich remained an authorized provider following the June 1995 stipulation, and thus, the respondents are liable for Waidlich's further treatment to the extent it was reasonable and necessary to treat the industrial injury. However, the ALJ expressly addressed only the reasonableness and necessity of treatment provided by Waidlich prior to June 1995.
On remand, the ALJ shall make additional findings and determine whether the claimant sustained her burden to prove that the psychotherapy provided by Waidlich between June 1995 and January 1996 was reasonable and necessary to relieve the effects of the industrial injury. Based upon this determination, the ALJ shall enter a new order concerning the respondents' liability for Waidlich's treatment commencing June 1995.
IT IS THEREFORE ORDERED that the ALJ's order dated October 30, 1996, is affirmed insofar as it denies payment for treatment provided by Katherine Waidlich before June 1995.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it denies payment for treatment provided by Katherine Waidlich during and after June 1995, and the matter is remanded to the ALJ for additional findings and a new order on this issue, in accordance with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE 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, 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. (1996 Cum. Supp.).
Copies of this decision were mailed May 30, 1997 to the following parties:
Linda L. Chapman, 3315 Galleria Terrace, Colorado Springs, CO 80916
Spectranetics Corp., 96 Talamine Ct., Colorado Springs, CO 80907-5160
TIG Premier Insurance Co., Attn: Pat McCabe, P.O. Box 17005, Denver, CO 80217
Kathleen Waidlich, 4291 Austin Bluffs Parkway, #105, Colorado Springs, CO 80918
Carol A. Finley, Esq., 111 S. Tejon, Ste. 700, Colorado Springs, CO 80903 (For the Respondents)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For the Claimant)
BY: _______________________