Opinion
W.C. No. 4-446-932.
March 21, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (ALJ) Friend dated September 20, 2007, determining that the claimant failed to overcome the opinion of a Division-sponsored independent medical examination (DIME) physician's opinion and awarded the claimant permanent partial disability benefits in accordance with that opinion. The claimant also seeks review of an order of ALJ Cain entered earlier that denied the claimant's request for a protective order to relieve him of the obligation to undergo an examination by the DIME physician. We affirm.
ALJ Cain entered an order dated July 24, 2006 that denied the claimant's request for a protective order to excuse him from attending a DIME. The claimant asserted that the designated DIME physician, Dr. Aschberger, had either an actual or apparent conflict of interest based on his relationship to the respondent insurer. ALJ Cain's findings of fact are summarized as follows. The Division of Workers' Compensation provided the parties with three physicians from which to choose pursuant to the respondents' request for a second DIME. The parties each struck the name of a physician, leaving Dr. Aschberger to perform the DIME. The claimant sought relief from attending a DIME conducted by Dr. Aschberger on the ground of a conflict of interest based on his membership in the respondent insurer's SelectNet physician referral system and because he provided services to the insurer as a medical advisor. The claimant further asserted that Dr. Aschberger, in his capacity as a medical advisor, violated an administrative rule regarding communications between a DIME physician and a party. Neither Dr. Aschberger nor the insurer disclosed his status as a SelectNet provider or medical advisor to the insurer prior to his selection to conduct the DIME.
The SelectNet program includes about 2,800 physicians who contract with the insurer to treat workers' compensation injuries at a discounted rate. Dr. Aschberger has been a member of SelectNet since its inception. Dr. Aschberger has also contracted with the insurer to serve as a medical advisor and consults with adjusters at the insurer's offices concerning medical issues and reviewed the medical care of other providers and their impairment ratings. Dr. Aschberger performs these services one-half day a month and receives $600 a day as compensation. Referrals through SelectNet account for about 25 percent of Dr. Aschberger's income.
Dr. Aschberger considers SelectNet to be a system established to "insure the efficient flow of patients," rather than to advocate the insurer's interests. He testified that his opinions as a medical advisor to the insurer are objective and, also, that the insurer never made the rendering of favorable opinions a condition of his status as a Selectnet provider or medical advisor. Dr. Aschberger would not change his opinion based on the insurer's status as a party and does not consider himself to have a conflict of interest. The ALJ found Dr. Aschberger's testimony to be credible.
Dr. Aschberger's contracts regarding SelectNet and his work as a medical advisor do not require that he render DIME opinions favorable to the insurer. Instead, the contracts require that he exercise his independent, professional judgment. No persuasive or credible evidence indicates that the insurer ever conditioned its contractual relations with Dr. Aschberger on the issuance of medical opinions in its favor. Dr. Aschberger never discussed the claimant's case with any representative of the insurer and the insurer never approached him about it.
Dr. Aschberger's practice is located in a Concentra clinic and he receives about 60 percent of his business from referrals through Concentra physicians. He disqualifies himself from conducting DIMEs involving such physicians because Concentra is his primary source of referrals and he does not wish to "anger" Concentra physicians by questioning their decisions.
The ALJ was not persuaded that Dr. Aschberger had a direct or substantial interest in the claimant's case based on his financial relationship with the insurer, including his status as a SelectNet physician and medical advisor to the insurer. The ALJ determined that the claimant had not established that Dr. Aschberger had a direct or substantial financial interest in his case. The ALJ was not persuaded that Dr. Aschberger had either an actual or apparent conflict of interest under the circumstances. He therefore denied the claimant's request for a protective order.
The claimant appealed ALJ Cain's order, which we dismissed for lack of a final order pursuant to § 8-43-301(2), C.R.S. 2007. The claimant underwent a DIME with Dr. Aschberger and then sought to overcome his opinion. ALJ Friend entered an order on September 20, 2007, finding that the claimant had failed to overcome Dr. Aschberger's opinion by clear and convincing evidence and ordering the respondent insurer to pay the claimant permanent partial disability benefits based upon Dr. Aschberger's impairment rating.
I.
The claimant asserts on appeal that ALJ Friend erred by denying him the opportunity to present evidence in support of his position that Dr. Aschberger's opinion was impaired by apparent or actual conflicts of interest. However, we find no error in the ALJ's determination that the claimant failed to overcome Dr. Aschbergers' DIME opinion. Under § 8-42-107(8)(c), C.R.S. 2007, the DIME physician's medical impairment rating 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, 415 (Colo.App. 1995). Consequently, to overcome the DIME physician's medical impairment rating there must be evidence establishing that the DIME physician's determination is incorrect and this evidence must be unmistakable and free from serious or substantial doubt. DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980).
The ALJ expressly advised the claimant's counsel that the claimant could challenge Dr. Aschberger's opinion, but not "his status as the DIME physician," which the ALJ construed to have been previously determined by ALJ Cain. Tr. at 6-7. The claimant advised the ALJ that he had no evidence to offer and could not overcome the DIME physician's opinion by clear and convincing evidence. Tr. at 7. He also referred to the issue of conflicts of interest. Tr. at 7-8. However, the claimant did not endeavor to present evidence of alleged bias or conflicts of interest in order to overcome the DIME physician's opinion, and we do not understand the ALJ to have prevented him from presenting evidence regarding alleged bias or conflicts of interest as such matters may pertain to the issue of overcoming the DIME physician's opinion. We therefore find no error in the ALJ's determination that the claimant failed to meet his burden to overcome the DIME physician's opinion.
II.
The claimant also challenges the order of ALJ Cain who, based on his findings, concluded that Dr. Aschberger's relationships with the insurer through SelectNet and by serving as a medical advisor to the insurer in other cases did not create an actual or apparent conflict of interest. The ALJ also determined that Dr. Aschberger's relationship with the insurer did not violate any administrative regulations governing communications of a DIME physician. The claimant's primary argument in support of his contentions is that Dr. Aschberger's affiliation with the insurer through both SelectNet (which accounts for about one-quarter of his income) and his work as a medical advisor constitutes a conflict of interest that disqualifies him from conducting a DIME in any case in which the insurer is a party.
The claimant's arguments are similar to those made in Benuishis v. Cheyenne Mountain Zoological Society, W.C. No. 4-312-807 (February 23, 2007), a case in which the DIME physician earned about one-third of his income through SelectNet and his services as a medical advisor to the insurer. In that case, we upheld an ALJ's determination that the DIME physician did not have a conflict of interest. In support of our decision we, like the ALJ in this matter, referred to the panel's decision in Robertson v. Chicago Creek Roads, Inc., W.C. No. 4-388-293 (April 3, 2001). In Robertson, the DIME physician also participated in SelectNet and served on a physician advisory panel for the insurer; however, he was not shown to have a "financial stake" in the outcome of the particular case at hand or any significant communications with the insurer about the claim. The panel rejected the claimant's challenges to the DIME physician's autonomy under the circumstances. We decline to depart from the reasoning of these prior cases.
IT IS THEREFORE ORDERED that the order of ALJ Cain dated July 24, 2006, and the order of ALJ Friend dated September 20, 2007, are affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
DALE RUFF, MANASSA, CO, (Claimant).
CITY OF MANASSA, Attn: EVELYN TIBBITS, MANASSA, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, DENVER, CO, (Insurer).
STEVEN U. MULLENS PC, Attn: STEVEN U. MULLENS, CO SPRINGS, CO, (For Claimant).
RUEGSEGGER, SIMONS, Attn: LISA SIMONS, C/O: SMITH STERN, DENVER, CO, (For Respondents).