Opinion
W.C. No. 4-544-827.
April 13, 2005.
FINAL ORDER
The claimant seeks review of an Order of Administrative Law Judge Klein (ALJ). The claimant contends the ALJ erred in finding that he reached maximum medical improvement (MMI) on July 2, 2002, without the benefit of a Division-sponsored independent medical examination (DIME). The claimant also contends the ALJ erred in determining that medical treatment was not authorized, and by refusing to admit evidence of subsequent remedial measures. We affirm the termination of temporary total disability (TTD) benefits on July 2, and set the order aside and remand for additional findings concerning medical benefits. We also modify the order to reflect certain stipulations of the parties.
The ALJ's pertinent findings of fact may be summarized as follows. The claimant alleged that he sustained a compensable aggravation of preexisting lung diseases by exposure to diesel exhaust at the employer's garage facility. The exposures to exhaust occurred between June 10 and June 13, 2002, after the claimant returned to modified duty following an admitted shoulder injury. The claimant's preexisting lung diseases were treated by a personal physician, Dr. Kukafka, and the shoulder injury was treated by the employer's "designated treating physician," Dr. Basow.
On June 12 the claimant complained to his supervisor about the air quality in the facility. On January 13 the claimant reported to work with a cough and "did not appear to be doing well." In the afternoon the claimant became very ill and asked the supervisor if he could go to the "workers' compensation doctor," but the request was denied because the supervisor believed the claimant's "breathing problems" were caused by the preexisting diseases. Consequently, the supervisor told the claimant to see his personal physician.
Despite the supervisor's instructions, the claimant asked a coworker to take him to Dr. Basow's office. Because Dr. Basow was not in the office, the claimant was examined by Dr. Basow's nurse practitioner (nurse Starks). Nurse Starks determined the claimant needed emergency treatment and called an ambulance to take him to the hospital. At the hospital the claimant was treated by Dr. Edwards, who released the claimant with instructions to see Dr. Kukafka the next day. The claimant was examined by Dr. Kukafka on June 14, and he referred her to Dr. Maier at National Jewish Hospital on July 17.
Meanwhile, the claimant was also treated by Dr. Basow, who removed the claimant from work. However, on July 2, 2002, Dr. Basow stated that, although the claimant had not returned to his "pulmonary symptomatic baseline," the claimant's continuing problems were attributable to "a worsening of his underlying condition rather than residual effects" of the exhaust exposure. Consequently, Dr. Basow placed the claimant at MMI with no medical impairment and deferred to Dr. Kukafka concerning the imposition of further restrictions.
Resolving conflicts in the evidence, the ALJ concluded the claimant proved that on June 13 he sustained a compensable injury which aggravated the preexisting pulmonary diseases. However, the ALJ stated the aggravation was "temporary," and found the claimant was placed at MMI on July 2 by his "treating physician," Dr. Basow. (Findings of Fact 14, 1923, Conclusion of Law 9). Consequently, the ALJ, citing § 8-42-105(3), C.R.S. 2004, held the claimant's right to TTD benefits terminated on July 2.
The ALJ also concluded that the treatment provided by Dr. Kukafka and Dr. Maier was not authorized and, therefore, not compensable. In support of this determination the ALJ found that the treatment rendered at the hospital was authorized because it was emergent, and because "it was the designated treating physician's Nurse Practitioner" who referred the claimant for the treatment. However, the ALJ held that once the emergency ended the employer retained the right to designate the authorized treating physician (ATP), and the claimant should have returned to Dr. Basow. (Finding of Fact 20; Conclusion of Law 6).
I.
On review, the claimant first contends the ALJ erred in concluding the claimant reached MMI and had no impairment because the claimant had not undergone a DIME. The claimant argues that the ALJ exceeded his jurisdiction by crediting Dr. Basow's opinion that the claimant "returned to baseline" on July 2. We disagree with this argument.
TTD benefits terminate when the claimant reaches MMI. Section 8-42-105(3)(a), C.R.S. 2004. Pursuant to § 8-42-107(8)(b)(I), C.R.S. 2004, "an authorized treating physician" makes the initial determination concerning the date of MMI. Once an ATP makes a determination of MMI, an ALJ lacks jurisdiction to conduct a hearing concerning the issue of MMI until a DIME is conducted. Section 8-42-107(8)(b)(III), C.R.S. 2004; Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995). Similarly, the ATP assigns the initial impairment rating, and that rating is binding on the ALJ unless overcome by clear and convincing evidence. Section 8-42-107(8)(c), C.R.S. 2004; Egan v. Industrial Clam Appeals Office, 971 P.2d 664 (Colo.App. 1998). However, the opinions of a DIME physician are given presumptive effect only when the statute so requires. Cordova v. Industrial Claim Appeals Office, 55 P.3d 191 (Colo.App. 2002).
A DIME is not required for the ALJ to resolve a factual dispute concerning whether a physician is an ATP, or to resolve a dispute concerning whether or not a particular ATP has placed the claimant at MMI. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). Once the ALJ finds that an ATP has placed the claimant at MMI, the ALJ may not conduct further proceedings on the issue of MMI until the DIME physician's finding is filed. Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002); Briley v. K-Mart Corp., W.C. No. 4-494-519 (March 12, 2003).
Here, the respondents raised the issue of whether Dr. Basow, acting as an ATP, placed the claimant at MMI. (See Respondents' Response to Application for Hearing). The ALJ had jurisdiction to resolve this issue without requiring the claimant to undergo a DIME. Admittedly, there is some language in the ALJ's decision, including Finding of Fact 19, which suggests the ALJ considered the existence of MMI to be an issue of fact which he could resolve independent of the opinions of the ATP. However, the ALJ expressly found that Dr. Basow, acting as ATP, placed the claimant at MMI. (Conclusion of Law 9). Consequently, the ALJ made the necessary factual and legal determinations to terminate TTD benefits, and the ALJ's other remarks are, at most, surplusage which cannot change the result.
We agree with the respondents that the case on which the claimant places principal reliance, Ward v. Sievers Instruments, W.C. No. 4-301-616 (August 17, 1998), is inapposite. In that case the ALJ purported to determine the issue of MMI, including the question of causation, in a situation where the ALJ "did not find that any of the physicians who treated the claimant for the 1996 aggravation actually placed the claimant at MMI." Here, the ALJ found that Dr. Basow placed the claimant at MMI after determining that the industrial injury was no longer the cause of the claimant's symptoms.
Under the circumstances of this case, which involves a full contest, we express no opinions concerning the proper timing and mechanism for the claimant to obtain a DIME to dispute Dr. Basow's findings concerning MMI and impairment. See Whiteside v. Smith, 67 P.3d 1240 (Colo. 2003) (discussing due process implications of DIME procedure in context of challenges to ATP's MMI and impairment determinations). We merely hold the ALJ had jurisdiction to determine whether Dr. Basow, acting as the ATP, placed the claimant at MMI and, therefore, that TTD benefits should be terminated on July 2 in accordance with § 8-42-107(8)(b)(I) and § 8-42-105(3)(a).
II.
The claimant next contends the ALJ erred in determining that Dr. Kukafka and Dr. Maier are not authorized physicians. The claimant argues that under the facts of this case the ALJ's reliance on Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990), is misplaced. Specifically, the claimant argues there is evidence that nurse Starks made a referral to Dr. Kukafka before the she sent the claimant for emergency treatment. We remand for additional findings and entry of a new order on this issue.
In Sims v. Industrial Claim Appeals Office, supra, the court held that when a claimant seeks emergency treatment, the emergency room physician does not become an authorized provider. Rather, when the emergency ends the claimant "must give notice to the employer of the need for continuing medical service and the employer then has the right to select a physician." 797 P.2d at 781.
However, in Sims the claimant sought emergency treatment before the employer selected any ATP. Here, the ALJ found that Dr. Basow was the employer's "designated treating physician" and that the claimant sought treatment at Dr. Basow's office before any emergency was determined to exist. Dr. Basow was not present, but the ALJ found the claimant was examined by Dr. Basow's nurse practitioner (Starks). Although not mentioned in the ALJ's order, the notes of nurse Starks from June 13 state the claimant should be examined by Dr. Basow at an appointment scheduled for June 17, and "he should follow up with his pulmonary specialist after being discharged from the Emergency Department." (Exhibit "E" P. 51) (Emphasis added).
If an authorized provider refers a claimant to another provider in the ordinary course of medical treatment, the provider to whom the claimant was referred is considered authorized. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). The question of whether such a referral has been made is usually one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). We have previously held that medical providers who are not physicians may sometimes make valid referrals within the scope of their employment with an ATP. See Phelps v. Heart of the Rockies Regional Medical Center, W.C. No. 4-462-794 (January 23, 2003) (evidence supported finding that physician's assistant working under authority of doctor made an authorized referral).
Here, the notes of nurse Starks from June 13 provide some evidence from which it might be inferred that Starks made an authorized referral to Dr. Kukafka before the claimant was sent to the emergency room. If so, Dr. Kukafka, and perhaps Dr. Maier, could be considered authorized medical providers, and would be authorized without regard to the actions of the emergency room physician. However, the ALJ made no findings concerning this evidence, and the application of the Sims case raises a doubt whether the ALJ recognized the potential significance of this evidence. On remand, the ALJ shall consider whether Starks made an authorized referral to Dr. Kukafka before the emergency, and shall enter specific findings of fact concerning resolution of this issue. Section 8-43-301(8), C.R.S. 2004 (panel may set order aside if findings are insufficient to permit appellate review).
III.
The claimant next contends the ALJ erred in excluding evidence that the employer installed a ventilation system after the claimant became ill at work. The ALJ excluded this evidence because he viewed it as evidence of a subsequent remedial measure, and considered it irrelevant because workers' compensation cases, in most instances, are based on no-fault principles. On review, the claimant argues the evidence was admissible because it was offered to prove causation, not fault or culpable conduct by the employer. C.R.E. 407. We perceive no error.
Error may not be premised on the exclusion of evidence unless the substantial right of a party is affected. C.R.E. 103(a). Here, the ALJ found the claimant proved that exposures to diesel fumes in the workplace aggravated the preexisting respiratory diseases. Thus, the ALJ found the claimant proved causation, and exclusion of the evidence, even if admissible, did not affect the claimant's substantial rights.
The claimant also asserts the evidence should have been permitted to show the "severity" of the claimant's condition, and to refute the conclusion that the aggravation was only temporary. However, as we have held, the ALJ was statutorily bound by Dr. Basow's determination that the claimant sustained a "temporary" injury in the sense that the claimant reached MMI on July 2. Admission of the disputed evidence could not change § 8-42-107(8)(b)(I) concerning the effect of the ATP's opinion on MMI.
IV.
The respondents concede the claimant's arguments concerning the average weekly wage and the compensability of the emergency room treatment. Thus, we need not consider these arguments and the ALJ's order shall be modified accordingly.
IT IS THEREFORE ORDERED that the ALJ's order dated November 4, 2004, is modified to reflect the parties' stipulations concerning the average weekly wage and the emergency room treatment.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it determined that Dr. Kukafka and Dr. Maier are not authorized treating physicians, and the matter is remanded for entry of a new order on this issue. The order shall be entered on the existing record and an additional hearing is not authorized.
IT IS FURTHER ORDERED that he ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
_______________________________ Kathy E. Dean
Richard Haakinson, Fort Collins, CO, Jim Wilson, Loomis Fargo Company, Denver, CO, Inge Feagin, Loomis Fargo Company, Houston, TX, Pacific Employers Insurance Co., c/o Evy Radmacher, ACE/ESIS, Inc., Portland, OR, Joseph M. Goldhammer, Esq., Denver, CO, (For Claimant).
Kathleen Mowry Fairbanks, Esq. and Michael Todd Calvert, Esq., Denver, CO (For Respondents).