Opinion
W.C. No. 4-655-422.
December 28, 2007.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) dated August 7, 2007, that ordered the respondent to pay for an examination by a physician chosen by the claimant. We affirm.
A hearing was held on the sole issue of the claimant's request for a change of physician. Following the hearing the ALJ entered factual findings that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury on July 13, 2005, and the respondent filed a final admission of liability on June 5, 2007. The claimant's authorized treating physician was Dr. Frank. The claimant's relationship with Dr. Frank suffered a "breakdown" such that the ALJ concluded that a change in physician was warranted.
Based on his factual findings the ALJ ordered the respondent to pay for an initial evaluation by a physician of the claimant's choosing. The ALJ specifically noted that he was not determining whether the claimant had reached maximum medical improvement, and he concluded that the claimant's request for a change of physician was not a constructive challenge to the determination of the authorized treating physician that the claimant was at maximum medical improvement.
The respondent appealed the ALJ's order and argues that the ALJ lacked jurisdiction to order a change of physicians. The respondent further argues that because a request to change physicians under these circumstances is in part a constructive challenge to the treating physician's determination of maximum medical improvement the ALJ had no authority to adjudicate that request. Relying upon Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the respondent urges that the claimant's only recourse is a Division-sponsored independent medical examination (DIME). In opposition to the respondent's appeal the claimant argues that this case is controlled by Ames v. Industrial Claim Appeals Office, 89 P.3d 477 (Colo.App. 2003) and that the ALJ's order should be affirmed based upon that case.
We agree with the respondent that Story precludes a change of physician after the claimant has reached maximum medical improvement, where the change is sought in order to circumvent the authorized treating physician's determination of maximum medical improvement. In Story the claimant was placed at maximum medical improvement on December 15, 1992, by an authorized treating physician and released to work with no permanent impairment. At a hearing held on May 2, 1994 the claimant adduced testimony from her doctor that she was not at maximum medical improvement and that she needed further medical treatment. The ALJ concluded that the claimant required further medical treatment and had made a proper showing for a change of physician. A panel of the Industrial Claim Appeals Office set the order aside on the ground that the ALJ had, in effect, determined that the claimant had not really reached maximum medical improvement. The panel ruled that that determination exceeded the jurisdiction of the ALJ in the absence of a DIME.
The Colorado Court of Appeals affirmed the order in part, rejecting the claimant's argument that upon a proper showing she was entitled to change physicians at any time, even after maximum medical improvement had been reached. The court held that to the extent the claimant was seeking to change her physician in order to obtain further treatment to cure the injury and reach maximum medical improvement, or to obtain additional temporary disability benefits she was precluded from doing so. Such an attempt to change physicians was in effect a constructive challenge to the authorized treating physician's determination of maximum medical improvement, which may only be challenged through the DIME process.
However, the court also set aside the panel's order in part and remanded for a determination whether the claimant required medical treatment pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The court stated that "[w]e agree that claimant was entitled to change physicians after having reached MMI to the extent that that change was for purposes of obtaining future medical treatment to relieve the effects of her industrial injury or to prevent future deterioration of her work-related condition." Story, 910 P.2d at 81 ( citing Grover v. Industrial Commission, supra.).
More recently, in Ames v. Industrial Claim Appeals Office, 89 P.3d 477 (Colo.App. 2003), the court of appeals ruled that where a request to change physicians was made prior to the authorized doctor's determination of maximum medical improvement and was based solely on the latter's nonmedical conduct it was not a constructive challenge to the physician's determination of maximum medical improvement. In Ames the claimant had requested a change of physician, contending that the doctor had acted unprofessionally by disclosing confidential medical information about the claimant to her coworkers. At the time of the request for a change in physicians the claimant had not been placed at maximum medical improvement. After the request but before the hearing the doctor made that determination, however, and assigned a permanent impairment rating. The court ruled that Story did not preclude the ALJ from changing physicians under those circumstances, where the claimant sought to change doctors for nonmedical reasons and had not been placed at maximum medical improvement prior to the request.
It appears from the record and from the ALJ's order here that he recognized the limitations imposed on his authority in resolving the dispute then before him. Although the ALJ's order requires the respondents to pay for the initial evaluation by a doctor of the claimant's choosing, the order also states that the respondent will only be liable for medical treatment proposed by the doctor if it "is reasonably needed to relieve Claimant from the effects of the compensable injury." Specific Findings of Fact, Conclusions of Law, and Order at 3, ¶ 4. As noted, the court in Story expressly approved of a change of physician even after maximum medical improvement in order "to relieve the effects of [the] compensable injury." Story, 910 P.2d at 81. In using the same language employed by the court in Story, and in citing to Grover it is apparent that the ALJ intended the change of physician here to be consistent with the principle of law set out in Story. Moreover, in our view, the ALJ appropriately recognized that the respondent reserved the right to challenge any proposed medical treatment on the grounds that it was not reasonable, necessary, related to the injury, or in the nature of Grover medical benefits.
Thus, as we read the ALJ's order, it authorizes a doctor of the claimant's choosing only for purposes of determining whether Grover medical benefits are appropriate and, if so, the nature of that proposed medical treatment. Although the ALJ noted that he was not determining whether the claimant had been placed at maximum medical improvement, it is apparently undisputed that Dr. Frank stated that he had reached that point in December 2005. Of course, any challenge to that determination must be through the DIME process and the ALJ's order here apparently recognizes that.
IT IS THEREFORE ORDERED that the ALJ's order dated August 7, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
MARK LOY, ADAMS CIRCLE, BOULDER, CO, (Claimant).
UNIVERSITY OF COLORADO, DISCOVER DRIVE, SUITE, BOULDER, CO, (Employer).
THE BROCK HOUSE, Attn: CHARLES WELTON, ESQ., GAYLORD STREET, DENVER, CO, (For Claimant).
RITSEMA LYON, P.C., Attn: NANCY HUMMEL, ESQ., 999 18TH STREET, SUITE, DENVER, CO, (For Respondents).
UNIVERSITY OF COLORADO, Attn: GEORGETTE CUMLEY, GRANT STREET, SUITE, DENVER, CO, (Other Party).