Opinion
W.C. No. 4-489-603
September 10, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which found the claimant sustained a compensable injury on December 31, 2000, and awarded temporary disability and medical benefits. The respondents also dispute the ALJ's finding that the claimant was referred to her surgeon by an authorized physician. We affirm.
The claimant was employed as a waitress at a restaurant and bar in Grand County, Colorado. She filed a claim for benefits alleging compensable injuries to her left upper extremity and neck on December 30, 2000, and December 31, 2000.
The ALJ found the claimant slipped in the snow and injured her left shoulder after work on December 30. However, the ALJ determined this injury was not compensable, and that determination is not now challenged. The claimant did not seek medical attention as a result of this incident.
The ALJ further found the claimant returned to work on December 31 and aggravated her left shoulder condition. This injury occurred when a bucket of ice, which the claimant was carrying, "slipped and jerked on her left arm." Thereafter, the claimant did not return to work because of her pain, and she moved to Nebraska to live near her mother.
The claimant first sought medical treatment on January 22, 2001, when she was seen at the emergency room in Alliance, Nebraska. The admitting physician was Dr. Forney, and the claimant was examined by Dr. Forney's physician assistant, Steve Rolls. After the claimant was examined by Dr. Boyer on January 29, she received additional treatment by Dr. Forney and P.A. Rolls commencing January 30, 2001. The ALJ further found that Dr. Forney referred the claimant to a Colorado surgeon, Dr. Turner, who subsequently rendered "primary treatment" to the claimant. (Finding of Fact 10). In March 2001 Dr. Turner diagnosed a herniated cervical disc, and he performed surgery in September 2001.
The ALJ concluded that the "events of December 30 and 31, 2000 contributed" to the claimant's condition, and the December 31 injury involved a "significant aggravation" of the "previous condition." (Finding of Fact 11). In support of this determination the ALJ credited the claimant's testimony that she felt an immediate increase in pain after the ice bucket slipped and pulled her arm. The ALJ also relied on the facts that the claimant did not seek immediate treatment after the December 30 incident, and the claimant was unable to return to work after December 31.
Concerning authorization for medical treatment, the ALJ found the respondents were not aware of the claimant's need for medical treatment until March 8, 2001, when they filed a first report in response to receiving the claim for benefits. However, at that time, the respondents did not designate a provider, and the ALJ concluded the respondents acquiesced in treatment by the physicians selected by the claimant. The ALJ also found Dr. Forney referred the claimant to Dr. Turner.
I.
On review the respondents contend the record lacks substantial evidence to support the ALJ's finding the claimant sustained a compensable aggravation of a preexisting condition on December 31. The respondents argue the ALJ was compelled to find the claimant's disability and need for treatment were legally caused by the December 30 incident. We are not persuaded.
In H H Warehouse v. Vicory, 805 P.2d 1167,1169 (Colo.App. 1990), the court held the presence of a preexisting condition does not disqualify a claim for workers' compensation benefits if the industrial injury "aggravates, accelerates, or combines with the disease or infirmity to produce the disability for which" benefits are sought. Under this standard, the industrial injury need not be the sole cause of the disability as long as there is a direct causal relationship between the industrial injury and the resulting disability. See Seifried v. Industrial Commission, 736 P.2d 1262 (Colo.App. 1986).
The question of whether the claimant proved a direct causal relationship between the industrial injury and the disability and need for treatment is one of fact for determination by the ALJ. Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001). Because the issue is factual, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). In this regard, we note that causation need not be proven by medical evidence, and circumstantial evidence may be found sufficient. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Applying these principles here, we conclude the record contains substantial evidence to support the ALJ's finding that the December 31 injury produced a compensable aggravation of the claimant's preexisting condition. As the ALJ found, the claimant did not seek immediate medical attention after she fell on December 30. Moreover, the claimant returned to work on December 31 and was apparently able to perform her duties, albeit with pain. It was only after the bucket slipped causing a sudden increase in pain that the claimant was unable to return to work. Further, as the ALJ found, the claimant's medical records contain several references to the events of December 31 when discussing the claimant's medical history. Under these circumstances, the ALJ plausibly inferred the December 31 event played a causative role in the claimant's subsequent disability and need for treatment. Seifried v. Industrial Commission, supra. The fact the evidence might support a contrary conclusion affords no basis for relief on appeal.
II.
The respondents next contend the ALJ erred in finding that Dr. Forney "referred" the claimant to Dr. Turner. In support of this contention, the respondents contend the claimant's selection of Dr. Turner resulted from a "recommendation" by Dr. Forney, not a "referral." We disagree.
If, in the "normal progression" of treatment, an authorized physician refers the claimant to a second provider, the second provider is considered authorized to render treatment. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). The mere fact the claimant requests a referral does not remove the referral from the "normal progression" of treatment if the referring physician exercises independent judgment regarding the advisability of the referral. The existence of a valid referral is a question of fact for the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Here, the respondents do not dispute that Dr. Forney was authorized to treat the claimant, but focus on the legality of Dr. Forney's "referral" to Dr. Turner. It may be, as the respondents argue, that the claimant suggested to Dr. Forney that he make a referral to Dr. Turner. However, substantial evidence supports the ALJ's implicit determination that the referral was a product of Dr. Forney's independent medical judgment. Dr. Forney's notes reflect that on February 9, 2001, he called the claimant and advised her that he considered Dr. Turner to be a "fine physician and excellent surgeon" to treat her possible herniated disc. Moreover, on February 15, 2001, Dr. Forney exercised his judgment and issued a written referral to Dr. Turner requesting a "consult" regarding the claimant's condition. Under these circumstances, the ALJ reasonably concluded there was a valid referral and that Dr. Turner is in the authorized chain of treatment.
IT IS THEREFORE ORDERED that the ALJ's order dated February 13, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain _________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is 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 Street, Tower 3, Suite 350, Denver, CO. 80202.
Copies of this decision were mailed September 10, 2002 to the following parties:
Elissa Holcomb Walling, 1800 Jarvis Ave., Oxon Hill, M.D. 20745
Big Ray's Chop House, 10188 U.S. Highway 34, P. O. Box 40, Grand Lake, CO. 80447
Superior National Insurance Company, P. O. Box 1240, Rancho Cordova, CA 95741-1240
Jan Horger, Kemper Insurance, 26541 Agoura Rd., Calabassas, CA 91302
Jess M. Perez, Esq., 1102 5th St., #A, Greeley, CO. 80631 (For Claimant)
Ted A. Krumreich, Esq., 950 17th St., 21st Floor, Denver, CO. 80202 (For Respondents)
By: A. Hurtado