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Story v. Indus. Claim Appeals Office

Colorado Court of Appeals. Division III Ruland and Briggs, JJ., concur
Dec 7, 1995
910 P.2d 80 (Colo. App. 1995)

Summary

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.

Summary of this case from IN RE LOY v. UNIVERSITY OF COLORADO, W.C. No

Opinion

No. 95CA0446

Decided December 7, 1995

Review of Order from the Industrial Claim Appeals Office of the State of Colorado WC No. 4135838

ORDER AFFIRMED IN PART, SET ASIDE IN PART, AND CAUSE REMANDED WITH DIRECTIONS

Jon C. Thomas, P.C., Jon C. Thomas, Colorado Springs, Colorado, for Petitioner

Jones, Waters, Bennett, Hessel Cross, L.L.C., Chad J. Hessel, Colorado Springs, Colorado, for Respondents Fresh Express and Mid-Century Insurance Co.

No Appearance for Respondent The Industrial Claim Appeals Office of the State of Colorado


Beverly Story (claimant) seeks review of an order of the Industrial Claim Appeals Panel (Panel) which set aside an order allowing her to change treating physicians. We affirm in part, set aside in part, and remand with directions.

On April 24, 1992, while working at Fresh Express (employer), claimant sustained an admitted cervical muscle strain when her head and neck became stuck in a conveyor belt. Claimant was taken to a clinic for treatment and, over the course of nine months, returned to that same clinic periodically to receive additional treatments, including physical therapy.

On December 15, 1992, one of claimant's treating physicians, Dr. Bergland, placed her at maximum medical improvement (MMI) and released her to her former employment with no evidence of permanent impairment.

Prompted by recurring pain in her neck and head, on April 12, 1993, claimant requested additional medical benefits and a change in treating physicians. On August 3, 1993, claimant sought a hearing on her requests and, thereafter, filed a motion to endorse the additional issue of whether she was "in need of additional treatment" because she "ha[d] not reached maximum medical improvement."

A hearing was set originally for November 3, 1993, but did not take place. However, on January 25, 1994, claimant renewed her request for the hearing and this time also specifically raised the issue of whether temporary total disability benefits should be reinstated.

At the hearing conducted on May 2, 1994, claimant called as a witness Dr. Timothy O. Hall who testified that, in his opinion, claimant had not reached MMI and could benefit from additional treatment to return her to "optimum wellness." Based largely on the testimony of Dr. Hall, the Administrative Law Judge (ALJ) concluded that claimant had established she was in need of continued medical care and was unable to return to gainful employment absent an increase in her physical functioning. Based upon these findings, the ALJ concluded that claimant had made a "proper showing" for a change of physicians to Dr. Hall who was to "provide the ongoing reasonable and necessary care to claimant. . . ."

Employer and its insurer sought review of the ALJ's order and the Panel set the order aside. The Panel concluded the ALJ had, in effect, determined that claimant had not reached MMI, but had exceeded her jurisdiction in making such a determination because no independent medical examination (IME) was conducted as required under § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.). Claimant now seeks review of the Panel's order.

Claimant contends that, upon a proper showing, she is entitled to a change in treating physicians at any time, even after reaching MMI, and that the Panel, therefore, erred in setting aside the ALJ's order. We 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. See Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988); Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). However, to the extent claimant was seeking a change in physicians to obtain treatment for purposes of further curing her injury, i.e., reaching MMI, or to obtain reinstatement of temporary total disability benefits, we conclude that the Panel was correct in setting aside the ALJ's order.

Section 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.) covers requests to change physicians and provides that "upon proper showing to the division, the employee may procure its permission at any time to have a physician of the employee's selection attend said employee. . . ." (emphasis added) Based upon the plain language of this section, we see no reason why a claimant would be precluded from seeking or obtaining a change in physicians after having reached MMI. See also Grover v. Industrial Commission, supra (claimant may be entitled to medical benefits after reaching MMI if there is substantial evidence in the record to support such benefits).

At the hearing before the ALJ, no findings were entered concerning whether claimant had presented substantial evidence that future medical treatment was necessary to relieve the effects of her industrial injury or to prevent future deterioration of her work-related condition. See Grover v. Industrial Commission, supra; Milco Construction v. Cowan, supra. Further, the Grover requirements for such findings were not met by the ALJ's reference to Dr. Hall's testimony that: "Claimant needed to have a short regime of physical therapy and . . . some work hardening to return to her optimum wellness."

We agree with the Panel that claimant's request to change physicians amounted to a constructive challenge of her treating physician's determination that she had reached MMI and was subject to the provisions of § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp.). That section, which applies to injuries occurring on or after July 1, 1991, sets forth the procedures by which one may challenge an authorized treating physician's finding of MMI and provides as follows:

The authorized treating physician who has provided the primary care shall determine when the injured employee reaches maximum medical improvement as defined in section 8-40-201 (11.5). If either party disputes the authorized treating physician's finding of maximum medical improvement, the parties may select an independent medical examiner by mutual agreement. The finding of such independent medical examiner shall be binding on the parties and on the division. If the parties are unable to mutually agree on the selection of an independent medical examiner, the division shall select an independent medical examiner from a list of independent medical examiners maintained by the division. The finding of such independent medical examiner regarding maximum medical improvement shall be overcome only by clear and convincing evidence. A hearing on this matter shall not take place until the finding of the independent medical examiner selected by the director has been filed with the division. (emphasis added)

Section 8-42-107(8)(b) requires an IME prior to any hearing disputing the validity of the authorized treating physician's finding of MMI. We conclude that, absent such an IME, an ALJ has no jurisdiction to resolve such a dispute.

As noted above, here, claimant's request to change physicians was, in part, a constructive challenge of Dr. Bergland's determination that she had reached MMI on December 15, 1992. Because no IME was conducted or submitted prior to the hearing as required by § 8-42-107(8)(b), to the extent claimant's request to change physicians was for purposes of obtaining treatment to further cure her injury, to reach MMI, or to obtain reinstatement of temporary total disability benefits, the ALJ exceeded her jurisdiction and authority in granting the request.

Accordingly, the Panel's order setting aside the change in physicians is affirmed to the extent that the ALJ's order authorized medical treatment to bring claimant to MMI. However, the Panel's order is set aside and the cause is remanded for a determination of and entry of findings, appropriately within the ALJ's jurisdiction, as to whether claimant demonstrated that future medical treatment is necessary to relieve the effects of her industrial injury or to prevent further deterioration of her work-related condition.

JUDGE RULAND and JUDGE BRIGGS concur.


Summaries of

Story v. Indus. Claim Appeals Office

Colorado Court of Appeals. Division III Ruland and Briggs, JJ., concur
Dec 7, 1995
910 P.2d 80 (Colo. App. 1995)

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.

Summary of this case from IN RE LOY v. UNIVERSITY OF COLORADO, W.C. No

In Story, the court held that the DIME physician's determination of MMI did not preclude a change of physician order where only Grover medical benefits were sought.

Summary of this case from In re Wilkinson v. Wal-Mart, W.C. No

In Story, supra, the Court of Appeals held that where the claimant disputes the validity of the primary treating physician's determination of MMI, the ALJ lacks jurisdiction to resolve the issue without an IME under § 8-42-107(8)(b).

Summary of this case from In re Archuleta v. Eastman Kodak, W.C. No

In Sims v. Industrial Claim Appeals Office, supra, the court held that when a claimant seeks emergency treatment, the emergency room physician does not become an authorized provider.

Summary of this case from In re Haakinson, W.C. No

In Story, the court concluded that a request for a change of physicians to obtain further treatment for the purpose of reaching MMI, constitutes a "constructive challenge" to the treating physician's finding of MMI. Consequently, the Story court held the ALJ "had no jurisdiction" to consider the claimant's request for a change of provider in the absence of an DIME to contest the treating physician's finding of MMI. 910 P.2d at 82.

Summary of this case from In re Jr., W.C. No

In Story, the court concluded that a claimant's request for a change of physicians to obtain further treatment for the purpose of reaching MMI, was a "constructive challenge" to the treating physician's prior finding of MMI. Under these circumstances, the court held that the ALJ "had no jurisdiction" to consider the request because no party had requested an IME to contest the treating physician's finding of MMI. 910 P.2d at 82.

Summary of this case from In re Smith, W.C. No

In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court held that these IME provisions are "jurisdictional".

Summary of this case from In re Freeman, W.C. No

In Story, the court concluded that a claimant's request for a change of physicians to obtain further treatment for the purpose of reaching MMI, was a "constructive challenge" to the treating physician's prior finding of MMI. Under those circumstances, the court held that the ALJ "had no jurisdiction" to consider the request because no party had requested an IME to contest the treating physician's finding of MMI. 910 P.2d at 82.

Summary of this case from In re Guyn-Smart, W.C. No

In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court concluded that, in the absence of an IME, the ALJ has no jurisdiction to resolve a dispute concerning the accuracy of the treating physician's MMI determination.

Summary of this case from In re Powell, W.C. No

In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court of appeals held that a party may not circumvent the IME procedures of § 8-42-107(8)(b) by obtaining a change of physician subsequent to the date the treating physician opines that the claimant has reached MMI. The court reasoned that, to the extent a claimant seeks a change in physicians to obtain treatment for purposes of curing the injury, the claimant is making a "constructive challenge" to the authorized treating physician's determination of MMI. Thus, an IME is mandated by the statute.

Summary of this case from In re Bouvier, W.C. No

In Story the insurer filed a Final Admission of Liability in accordance with the primary treating physician's opinion that the claimant reached MMI. The claimant objected to the Final Admission but did not request an IME. Rather, the claimant requested additional medical benefits for purposes of achieving MMI and a change of provider.

Summary of this case from In re Chestnut, W.C. No

In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the Court of Appeals held that where the claimant disputes the validity of the primary treating physician's determination of MMI, the ALJ lacks jurisdiction to resolve the issue without an IME under § 8-42-107(8)(b).

Summary of this case from In re Chestnut, W.C. No

In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court of appeals interpreted § 8-42-107(8)(b) to mean that once the authorized treating physician has issued an opinion concerning MMI, a claimant may not seek a change of physician for the purpose of disputing the original treating physician's opinion concerning MMI. To the contrary, once the treating physician issues an opinion that the claimant has reached MMI, the claimant must follow the IME procedure if she wishes to challenge the treating physician's opinion and obtain additional temporary total disability benefits.

Summary of this case from In re Wood, W.C. No
Case details for

Story v. Indus. Claim Appeals Office

Case Details

Full title:Beverly Story, Petitioner, v. The Industrial Claim Appeals Office of the…

Court:Colorado Court of Appeals. Division III Ruland and Briggs, JJ., concur

Date published: Dec 7, 1995

Citations

910 P.2d 80 (Colo. App. 1995)

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