Opinion
W.C. No. 4-271-134
July 26, 1999.
FINAL ORDER
Respondents seek review of a final order of Administrative Law Judge Henk (ALJ) insofar as she authorized a change in the treating physician. The claimant seeks review of the order insofar as the ALJ held the claimant was required to undergo a Division-sponsored independent medical examination (IME) prior to litigating issues of maximum medical improvement (MMI) and additional disability benefits. The claimant also contends the ALJ erred in denying his petition to reopen based on worsened condition. We set the order aside insofar as the ALJ authorized a change in the treating physician, and otherwise affirm the order.
The claimant sustained a compensable back injury in May 1995. Ultimately one of the authorized treating physicians, Dr. Vecchiarelli, placed the claimant at MMI on November 6, 1997, and opined the claimant did not have any permanent medical impairment. Subsequently, the claimant sought additional treatment from the authorized treating physicians, but in December 1997 the respondents refused to authorize any further treatment.
On December 22, 1997, the respondents filed a final admission of liability terminating the claimant's temporary disability benefits and admitting for medical benefits to date. The claimant filed a timely objection to the admission.
In May 1998, the claimant filed a petition to reopen claim alleging a worsened condition. The claimant attached a report from Dr. Pero stating the claimant was suffering from low back pain characterized by right sacroiliac joint dysfunction. Dr. Pero stated that "what is striking about [the claimant's] clinical presentation in 4/98 is the in concordance with the clinical presentation in 12/95 and 3/97." Dr. Pero also opined the claimant was not at MMI and was suffering from a 23 percent medical impairment, which "would be decreased with some further treatment." Dr. Pero recommended the claimant undergo a "repeat physical medicine evaluation," that a plan be developed for further treatment including physical therapy, and "perhaps a right SI joint injection."
The claimant also filed an application for hearing listing the issues as medical benefits, a change of physician to Dr. Pero, authorization, and temporary disability benefits. On July 23, 1998, a Prehearing Administrative Law Judge (PALJ) struck the application for hearing insofar as it requested a change of physician to provide additional treatment for purposes of improving the claimant's condition. The PALJ concluded the issue was not ripe unless the claimant obtained an IME under § 8-42 107(8)(b)(II), C.R.S. 1998. However, the PALJ held that the issues of change of physician, medical care, and petition to reopen based on a worsened condition could be considered at hearing in view of the claimant's decision to withdraw his objection to the final admission.
The matter then proceeded to hearing before the ALJ. Concerning the issue of change of physician, the ALJ concluded the respondents' failure to "designate a physician who would provide" treatment to the claimant after MMI justified a change of physician to Dr. Pero. The ALJ also ruled the claimant's "request for TTD benefits from the date of MMI is a constructive challenge to the date of MMI and as such is not ripe for adjudication."
Concerning the petition to reopen, the ALJ found that Dr. Pero's report states the claimant's "clinical presentation" remained essentially unchanged between December 1995 and March 1997, while the physicians who previously treated the claimant opined the claimant remained at MMI. (Finding of Fact 7). Thus, the ALJ concluded "as a matter of law" that Dr. Pero's report did not prove the claimant "sustained a worsening of condition since being placed at MMI on November 6, 1997."
I.
On review, the claimant first contends the ALJ erred in holding that he was required to undergo a Division-sponsored IME on the issue of MMI in order to obtain additional disability benefits. The claimant argues that Dr. Pero became an authorized treating physician because of the respondents' refusal to provide authorized treatment in December 1997. In these circumstances, the claimant reasons, there was a dispute between authorized treating physicians concerning whether or not the claimant was at MMI, and the ALJ was entitled to resolve this dispute without requiring an IME. We disagree.
The statutes currently codified in § 8-42-107(8)(b)(I), (II) and (III), C.R.S. 1998, provide that an authorized treating physician is to make a determination of when the claimant reaches MMI. If a party disputes the determination of the authorized treating physician the party may obtain a Division-sponsored IME on the issue, and the IME physician's "finding" concerning MMI may be overcome only by clear and convincing evidence. The ALJ is precluded from holding a hearing on the issue of MMI until the IME physician's report has been filed with the division.
In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court held that these IME provisions are "jurisdictional". Therefore, the court concluded that once a claimant is placed at MMI by an authorized treating physician, an ALJ may not order a change in the treating physician for purposes of awarding additional medical treatment to reach MMI, or to obtain additional temporary disability benefits. Rather, the ALJ is limited to authorizing a change in the treating physician for purposes of awarding ongoing medical benefits, after MMI, under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
It is true that if multiple authorized treating physicians harbor conflicting opinions concerning whether the claimant has reached MMI, the ALJ may resolve the factual conflict without requiring the parties to resort to the IME process. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). However, we have issued a series of decisions holding that the IME provisions are "time sensitive". Thus, in order for there to be a "conflict" between two or more "authorized" treating physicians, the physicians must have been authorized to treat the claimant at the time the claimant was initially placed at MMI. Otherwise, the claimant would be able to circumvent the IME process by the simple expedient of seeking a change in the authorized treating physician after being placed at MMI. Guyn-Smart v. Arapahoe Library District, W.C. No. 4-268-374 (October 29, 1998); Murphy v. Lower Valley Hospital Association, W.C. No. 3-101-327 (June 23, 1995); Duran v. Colorado Lien Co., W.C. No. 4-106-416 (June 22, 1995). Such "constructive challenges" to the MMI determinations of authorized physicians are forbidden by Story.
It follows that the claimant's argument fails. Assuming, arguendo, that the respondents' refusal to authorize additional treatment in December 1997 constituted grounds for treating Dr. Pero as an authorized physician, such authorization occurred after the claimant was placed at MMI by the prior authorized treating physician. Thus, the claimant's only option for obtaining additional medical treatment to improve his condition or additional disability benefits was to initiate the IME process for purposes of determining MMI. The ALJ was precluded from authorizing Dr. Pero except for purposes of providing Grover medical benefits after MMI. Story v. Industrial Claim Appeals Office, supra.
In view of this resolution, we need not consider whether the claimant's withdrawal of the objection to the final admission of liability precludes the claimant from raising the question of whether Dr. Pero became an authorized treating physician.
II.
The claimant next contends the ALJ erred in denying the petition to reopen based on a worsened condition. The claimant argues the ALJ's denial of the petition to reopen "as a matter of law" demonstrates the ALJ was under the misapprehension that an IME was a prerequisite to reopening based on a worsened condition. As the claimant correctly points out, we have previously ruled that a Division-sponsored IME is not a prerequisite to reopening because the contention that a claimant's condition has worsened after MMI is not a "constructive challenge" to a determination that the claimant was at MMI in the past. Eg. Watkins v. Monfort, Inc., W.C. No. 4-219-467 and 4-239-387 (March 17, 1998); Patla v. Bethesda Care Center, W.C. No. 4-150-170 (July 20, 1995). However, we disagree with the claimant's interpretation of the ALJ's order.
Reopening based on a worsened condition requires proof that the claimant's physical condition has changed. Lucero v. Climax Molybdenum Co., 732 P.2d 642 (Colo. 1987). The decision whether to reopen a claim is discretionary with the ALJ, and we may not interfere with her order unless an abuse has been shown. Renz v. Larimer County School District Poudre R-1, 924 P.2d 1177 (Colo.App. 1996). An abuse is not shown unless the ALJ's order is beyond the bounds of reason, as where it is contrary to law or unsupported by the evidence. Coates Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
We must uphold the ALJ's pertinent findings of fact if supported by substantial evidence. Section 8-43-301(8), C.R.S. 1998. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, where testimony or evidence is internally inconsistent, the ALJ may resolve the inconsistency by crediting part or none of the evidence. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Evidence not explicitly mentioned is considered to have been implicitly discredited. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999).
In Finding of Fact 7, the ALJ considered Dr. Pero's April 20, 1998 report, and explicitly adopted that portion of the report which indicates the claimant's clinical presentation did not change between December 1995 and the time Dr. Pero examined him in April 1998. Thus, the ALJ was persuaded by Dr. Pero's report to the extent it suggests there was no change in the claimant's physical condition subsequent to the time he was placed at MMI in November 1997. The ALJ implicitly discredited the report insofar as it would support a finding that the claimant was not at MMI, and was suffering from medical impairment attributable to the industrial injury. While the ALJ might have interpreted the report differently, we may not substitute our judgment for hers concerning the weight, credibility, and inferences to be drawn from the medical evidence.
Consequently, we find no error in the ALJ's statement that "as a matter of law" Dr. Pero's report does not support reopening based on a worsened condition. That portion of the report which the ALJ found persuasive as a matter of fact does not support the legal conclusion that the claimant's condition worsened for purposes of reopening.
III.
Respondents argue the ALJ lacked jurisdiction to order a change in the treating physician. As noted previously, the ALJ lacked jurisdiction to order a change in the treating physician for purposes of providing additional medical treatment to bring the claimant to MMI, or to obtain additional disability benefits. Story v. Industrial Claim Appeals Office, supra. Although Story held the ALJ has jurisdiction to change the treating physician for purposes of awarding Grover medical benefits, the claimant was apparently not seeking this type of medical benefits at the time of the hearing. Rather, the claimant was arguing he needed additional medical benefits to bring him to MMI, or alternatively, that his condition had worsened and he needed additional treatment to restore him to MMI. (Tr. pp. 4-7). Therefore, we set aside that portion of the order authorizing a change in the treating physician.
IT IS THEREFORE ORDERED that the ALJ's order dated October 9, 1998, is set aside insofar as it ordered a change in the treating physician.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Dona Halsey
NOTICE
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. 1998.
Copies of this decision were mailed July 26, 1999 to the following parties:
Geoffrey Freeman, 3924 E. Pikes Peak Ave., Colorado Springs, CO 80909
United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Margaret Malone, Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909 (For Claimant)
John M. Connell, Esq., and Mark A. Neider, Esq., 1675 Larimer St., #710, Denver, CO 80203 (For Respondents)
By: A. Pendroy