Opinion
W.C. Nos. 4-622-266 4-619-272.
October 12, 2006.
ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated April 20, 2006 that found the claimant had overcome the opinion of the Division-sponsored independent medical examination (DIME) physician, and further found certain medical care providers were authorized. We affirm the order in part, set it aside in part and remand for entry of a new order.
This is a consolidated claim. The claimant was originally injured on April 22, 2003 while unloading an x-ray machine (W.C. No. 4-622-226). The claimant was diagnosed with a left shoulder strain and was returned to full duty. On November 25, 2003 the claimant suffered another accident (W.C. 4-619-272) while operating a mobile x-ray machine that dislodged, causing the claimant to fall backwards. Dr. Diaz at "Rocky Mountain Occupational Centers" was the claimant's authorized treating physician. Dr. Diaz treat the claimant's left shoulder but stated unequivocally in his last report that the claimant did not have a labral tear. Dr. Diaz placed the claimant at MMI with no impairment and released him to full duty. The claimant continued to have problems and one month later became aware of a clinic called the "Rocky Mountain Medical Center" where Dr. Shckelford and Dr. Fromcheck practice. The claimant had a conversation with the claims adjuster who gave the claimant permission to treat at the clinic. A later adjuster attempted to repudiate this authorization by taking the position that a mistake had been made by the first adjuster who thought that the "Rocky Mountain Medical Center" was actually the "Rocky Mountain Occupational Centers" where Dr. Diaz the authorized treating physician worked. Dr. Fromcheck referred the claimant to Dr. Noonan who evaluated the claimant's shoulder and diagnosed a labral tear.
The Claimant underwent a DIME conducted by Dr. Scott on October 11, 2005. The DIME physician agreed with Dr. Diaz's determination of MMI and his opinion that the claimant had no ratable impairment from the November 25, 2003 accident. Dr. Scott also stated that, although the claimant might have ratable impairments, those impairments are related to other injuries.
The claimant sought to overcome the opinion of the DIME physician. The ALJ found the DIME opinions lacked sufficient basis in the medical record and were in error in critical respects. Therefore, the ALJ found that the claimant had overcome the DIME physician's opinion on MMI by clear and convincing evidence.
On appeal the respondents first contend that the ALJ erred in finding that the treatment the claimant received at Rocky Mountain Medical Center was authorized. We disagree that the ALJ erred.
The term "authorization" refers to a physician legally authorized to treat the claimant so that the physician may expect to receive payment from the insurer for treatment to cure and relieve the effects of an industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995). Aside from "selection" of an authorized physician as provided in § 8-43-404(5)(a), C.R.S. 2006, a physician may become authorized upon referral from a previously authorized physician, or if the "employer has expressly or impliedly conveyed to the employee the impression" that a physician is considered to be authorized. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Greager v. Industrial Commission, 701 P.2d 168, 170 (Colo.App. 1985).
Here, the ALJ found with record support that the original claims adjuster gave the claimant permission to treat at "Rocky Mountain Medical Center". We have previously held that once a physician becomes authorized, the mere selection or designation of another authorized physician does not have the effect of "deauthorizing" the previously authorized physician. Rather, "deauthorization" may occur if evidenced by an express agreement under which the claimant waives treatment by the previously authorized physician. Granger v. Penrose Hospital, W.C. No. 4-351-885 (July 20, 1999); Chapman v. The Spectranetics Corp., W.C. No. 4-162-568 (May 30, 1997). Accordingly, a claimant may have multiple attending physicians. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Therefore, the physicians at Rocky Mountain Medical Center were merely added to the chain of authorized treating physicians by virtue of the adjuster's referral. See Matthews v. United Parcel Service, W.C. No. 4-325-652 (December 15, 1997); Chapman v. The Spectranetics Corporation, W.C. No. 4-1625-68, (May 30, 1997).
The respondents' arguments do not persuade us otherwise. Even conceding, as the respondents argue, that the similarity of the names of the two medical offices might have "confused" the adjuster, that circumstance does not compel a contrary result. The ALJ was not persuaded that the referral was accidental or the product of the adjuster's misunderstanding regarding the actual identity of the medical provider. Under these circumstances, the ALJ's inference that the referral was valid is a plausible one from the record.
Further, the respondents argue that the ALJ erred in finding that there was "not one denial letter or letter to the claimant telling her that the Rocky Mountain Medical Center a/k/a Front Range Rehabilitation Associates, P.C. was not authorized or no longer continued to be authorized." Findings of Fact, Conclusions of Law, and Order at 4 ¶ 6. It is true that the record contains letters from the insurer to the Rocky Mountain Medical Center stating that they were not an authorized medical provider. Exhibit L 1323-9. Even assuming that the ALJ overlooked those letters to Rocky Mountain Medical Center explaining why treatment was being denied it, any error is be harmless. The respondents have not shown that the authorization conferred on the provider by the adjuster's referral was revoked or otherwise repudiated in any legally effective way. As noted, nothing done by the respondents effectively "deauthorized" the provider, and the ALJ's erroneous finding concerning the absence of "denial" letters to the provider did not affect any substantial right of a party.
The respondents next contend that the ALJ erred in finding that the claimant had overcome the opinion of the DIME physician. Section 8-42-107(8)(c), C.R.S. 2006, provides that the DIME physician's finding of medical impairment is binding unless overcome by clear and convincing evidence. "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's rating is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
We must uphold the ALJ's determination that the claimant overcame Dr. Scott's DIME opinion if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. Application of the substantial evidence test requires that we defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Accordingly, the scope of our review is narrow. Metro Moving Storage Co. v. Gussert, supra.
The respondents dispute several of the ALJ's findings. They first argue that the ALJ, in discussing the flawed nature of Dr. Scott's report stated that "Dr. Scott does not mention, refer to or acknowledge the labral tear." Findings of Fact, Conclusions of Law, and Order at 5, ¶ 14. As the respondents contend, Dr. Scott's report does in fact devote a paragraph to Dr. Noonan's report and twice specifically mentions a "superior labral tear" as noted by Dr. Noonan. Exhibit A at 5. However, the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Moreover we note that elsewhere in the order the ALJ also found that although Dr. Scott mentioned a report by Dr. Noonan "he glossed over it because he never discussed the labral tear." Findings of Fact, Conclusions of Law, and Order at 6 ¶ 16. Taken as a whole these findings suggest that the ALJ determined that Dr. Scott did not place sufficient weight on the evidence of the labral tear. Under these circumstances, we decline to interfere with the ALJ's finding.
However, we agree with the respondents' argument that the ALJ may have erred in rejecting Dr. Scott's opinion that the claimant's lower back problems were related to preexisting problems. In rejecting Dr. Scott's opinion as not persuasive or credible, the ALJ expressly relied upon what he viewed as the conjectural nature of the doctor's opinion. This, in turn, in the ALJ's view was based on the absence of any medical documentation of the claimant's prior low back problems. In this regard, the ALJ stated that the doctor's opinion "is sheer speculation on Dr. Scott's part because there were no medical records which document any injury to the claimant's lower back before November 25, 2003." (emphasis in original). Findings of Fact, Conclusions of Law, and Order at 6, ¶ 17. As we read this factual finding, the ALJ expressly rejected Dr. Scott's opinion as speculative, specifically because the ALJ believed that the record was completely lacking in any medical documentation of the prior low back problems.
However, as the respondents note, the ALJ's characterization of the record is in error. Hence, it contains a report of Dr. Diaz dated November 26, 2003 the day after the November 25, 2003 accident. In that report, Dr. Diaz notes that the claimant had a motor vehicle accident in 1993 and, "Since then, she has had chronic neck pain, both arms, left leg, and lumbar area". Exhibit E at 45. Thus, insofar as the ALJ found that "no" evidence demonstrated that the claimant had an injury to her lower back prior to the November 25, 2003 accident, the finding is not supported by the record. See Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (finding of "no" evidence cannot be equated with a finding of no "persuasive" evidence).
Moreover, we cannot characterize this error as harmless. It is evident from the ALJ's order that he relied upon this perceived absence of medical documentation of a prior back injury in rejecting the opinions of Dr. Scott as not credible. We are unable to presume that the ALJ would have similarly rejected the doctor's opinion had the ALJ been aware of the medical report of the claimant's 1993 injury. Accordingly, it is necessary to remand this matter for reconsideration of the medical record in light of the report overlooked by the ALJ. Of course, the resolution of conflicting evidence and the weight and probative value to be accorded the evidence remains solely within the province of the ALJ, and we should not be understood as expressing any opinion concerning the ALJ's weighing of the evidence on remand.
IT IS THEREFORE ORDERED that the ALJ's order dated April 20, 2006 is set aside and the matter is remanded to the ALJ for entry of a new order consistent with the views expressed herein on the issue of whether the claimant has overcome the DIME physician's opinion.
IT IS FURTHER ORDERED the ALJ's order is affirmed to the extent it determined the treatment the claimant received at Rocky Mountain Medical Center a/k/a Front Range Rehabilitation Associates, P.C. was authorized.
INDUSTRIAL CLAIM APPEALS PANEL ___________________________________ Curt Kriksciun ___________________________________ Thomas Schrant
Natalie Montoya, Aurora, CO, Senter, Goldfarb Rice, LLC, Joe M. Espinosa, Esq., Denver, CO, (For Respondent).
Anderson, Hemmat Levine, LLC, Jordan S. Levine, Esq., Sun Healthcare/Pacific Mobile Diagnostics, Beryl Foster, Lockton Insurance Brokers, Jennifer Lund, Los Angeles, CA, Broadspire, Monica Westland, Denver, CO, (For Claimant).