Opinion
W.C. No. 4-415-403
June 16, 2004
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ Harr) which found the claimant waived her right to a Division-sponsored independent medical examination (DIME) and, therefore, determined the claim was closed on the issues of maximum medical improvement (MMI) and permanent impairment. We affirm.
This matter has been previously before us and a brief procedural history is necessary to understand the issues on review. The claimant suffered an admitted injury on December 29, 1998. The respondents referred the claimant to a provider who referred the claimant to Dr. Fall.
On September 2, 1999 Dr. Fall placed the claimant MMI with no permanent impairment. The respondents filed a Final Admission of Liability (FAL) consistent with Dr. Fall's opinions. The claimant objected to the FAL and argued that Dr. Fall was not an authorized treating physician (ATP) in September 1999 because the respondents gave the claimant permission to treat with a physician selected by the claimant. On March 7, 2000, ALJ Henk rejected the claimant's argument and determined that Dr. Fall was an ATP.
The claimant also requested a DIME, which was scheduled for March 9, 2000. The claimant did not attend the DIME and requested a continuance to raise the money to pay the cost of the DIME. When the claimant did not reschedule the DIME, the respondents argued the claimant waived her right to a DIME and requested an order closing the claim. In an order dated January 3, 2001, ALJ Corchado determined there was no waiver.
The respondents then applied for a pre-hearing conference. In an order dated January 26, 2001, a Prehearing Administrative Law Judge (PALJ) ordered the claimant to reset the DIME within 60 days. When the claimant failed to reset the DIME the respondent moved for an order closing the claim for lack of prosecution. An ALJ entered summary judgment granting the respondents' motion. However, on appeal we concluded the order was a denial of due process and, therefore, set aside the order.
The respondents then applied for a hearing on the issue. Based upon the evidence presented at a hearing on January 30, 2003, ALJ Harr determined the respondents sustained their burden to prove the claimant's conduct manifested an intent to relinquish her right to a DIME. In support ALJ Harr found the claimant was not medically incompetent from complying with the PALJ's order, the claimant had income to pay the cost of the DIME, and the claimant never applied for indigent status. Therefore, ALJ Harr denied the claimant's request to proceed with the DIME and determined the claim was closed on the issues of MMI and permanent impairment. The claimant timely petitioned for review of the order.
I.
The claimant's petition to review contains general allegations of error. See § 8-43-301(8), C.R.S. 2003. The claimant also renews her contention that the respondents' FAL is invalid because Dr. Fall could not have been an ATP for purposes of making the initial determination of MMI. Further, the claimant contends ALJ Harr erroneously redetermined the waiver issue which was previously decided favorably to the claimant and a PALJ "can't overrule" an ALJ. However, the claimant has not filed a brief in support of the petition to review and consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
First, we reject the claimant's contention ALJ Henk erred in finding Dr. Fall was an ATP for purposes of determining MMI under § 8-42-107(8)(b)(I), C.R.S. 2003. The respondents are liable for all authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). "Authorization" refers to the physician's legal status to treat the injury at the respondents' expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Accordingly, where the employer directs the claimant to a particular physician and agrees to pay for the medical expenses incurred by the claimant with a particular physician, the physician is necessarily an "authorized" physician. Granger v. Penrose Hospital, W.C. No. 4-351-885 (July 20, 1999).
In Granger v. Penrose Hospital, supra, the insurer designated a treating physician who examined the claimant on only one or two occasions before the insurer agreed to a change of physician. The new physician treated the claimant until the claimant was reexamined by the insurer's designated provider who placed the claimant at MMI. The insurer relied on that determination of MMI to file a final admission for the termination of temporary disability benefits. On review, we rejected an argument that the insurer's designated provider was "deauthorized" following the approved change of physician. Rather, we concluded the insurer's approval for a change of physician merely added another physician to the list of physicians who were legally authorized to treat the injury at the insurer' s expense. See also Chapman v. The Spectranetics Corp., W.C. No. 4-162-568 (May 30, 1997); Matthews v. United Parcel Service, W.C. No. 4-325-652 (December 15, 1997). The claimant's arguments to do not persuade us to depart from our conclusions in Granger, Chapman and Matthews.
We perceive no appreciable difference between the facts in Granger and the circumstances presented here. The record reveals Dr. Fall became an ATP following a referral from the insurer's designated provider. Dr. Fall treated the claimant in March and April 1999 until the claimant obtained permission to treat with Dr. Haney. Thereafter, Dr. Haney treated the claimant until September 2, 1999 when Dr. Fall reexamined the claimant and determined the claimant to be at MMI. Although the claimant elected to treated exclusively with Dr. Haney due to her dissatisfaction with Dr. Fall, the testimony of Dr. Fall contains substantial evidence that Dr. Fall remained authorized and willing to "treat" the claimant through September 2, 1999, when he placed the claimant at MMI. (Tr. January 11, 2000, pp. 107, 108). Under these circumstances, we perceive no error in ALJ Henk's finding that Dr. Fall was an ATP as of September 2, 1999.
It follows that because Dr. Fall was an ATP the respondents were entitled to rely on Dr. Fall's opinion of MMI to terminate temporary disability benefits. Section 8-42-105(3)(a), C.R.S. 2003. Indeed the respondents were required to either file the FAL consistent with Dr. Fall's opinions or request a DIME. See Rules of Procedure, Part IV(N)(4)(a), 7 Code Colo. Reg. 1101-3 at 6.02.
Next, we disagree with the claimant's contention that ALJ Corchado's order resolved the issue considered by the PALJ. ALJ Corchado determined that as of January 3, 2001, the evidence did not establish the claimant intended to waive her right to a DIME. However, ALJ Corchado did not purport to determine whether the claimant could in the future demonstrate an intent to waive the DIME. Thus, the PALJ's order directing the claimant to reset the DIME within 60 days does not "overrule" the order of ALJ Corchado.
The claimant's remaining allegations have been considered and do not establish grounds which afford us a basis to interfere with the ALJ's order. Under 8-43-301(8) we are precluded from disturbing the ALJ's order unless the ALJ's findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ's findings, the findings do not support the order, or the order is not supported by the applicable law.
Waiver is the intentional relinquishment of a known right which may be established by conduct which evidences a parties intent to relinquish the right. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). The party asserting waiver bears the burden of proof. Johnson v. Industrial Commission, supra.
We have reviewed the record and the ALJ's findings of fact. The ALJ's findings are supported by substantial evidence in the record and the findings support the conclusion the claimant waived her right to a DIME. Johnson v. Industrial Commission, supra. Therefore, the ALJ did not err in finding the issues of MMI and permanent impairment were closed absent an order reopening the claim. See Lobato v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 02CA1145, June 5, 2003); Town of Ignacio v. Industrial Claim Appeals Office, 70 P.3d 513 (Colo.App. 2002)
IT IS THEREFORE ORDERED that the order of ALJ Harr dated June 4, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
An action to modify or vacate this Order may be commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 16, 2004 to the following parties:
Nancy Sholund, 992 S. Dearborn Way, #4, Aurora, CO 80012
Argenbright Security, 6795 E. Tennessee Ave., #150, Denver, CO 80224-1608
Zurich Insurance Company, c/o Linda Lutge, Frank Gates USA, P. O. Box 9300, Albuquerque, NM 87119
Chris L. Ingold, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Marsha A. Kitch, Esq., 1202 Bergen Pkwy., #311, Evergreen, CO 80439 (For Respondents)
BY: A. Hurtado