Opinion
W.C. No. 4-292-534
May 10, 2001
FINAL ORDER
The respondents seek review an order of Administrative Law Judge Felter (ALJ) which determined that Dr. Parry is an authorized treating physician, and determined the respondents are liable for Dr. Parry's "evaluation, treatment and referrals." The respondents contend the ALJ's findings of fact are not supported by the evidence, and that the ALJ erred as a matter of law in determining that Dr. Parry became authorized as a result of a referral in the "normal progression of authorized treatment." The respondents also argue the ALJ's order exceeded the scope of the issues endorsed for hearing insofar as it determined the respondents are liable for Dr. Parry's "referrals." We affirm the order in part, and dismiss the petition to review without prejudice in part.
The claimant sustained a compensable injury on March 5, 1996. In October 1998, one of the claimant's treating physicians, Dr. Brown, performed surgery to correct the claimant's "thoracic outlet compression." In January 1999, Dr. Brown referred the claimant to Dr. Parry, a neurologist, to evaluate tinnitus and right upper extremity nerve compression.
The claimant was examined by Dr. Parry on March 16, 1999. Dr. Parry recommended a thermogram, counseling for depression, and prescribed various pain medications. Dr. Parry has continued to treat the claimant, and the ALJ found she has made "referrals for treatment."
The ALJ concluded that Dr. Brown's referral to Dr. Parry was made in the normal progression of authorized treatment, and Dr. Parry is authorized to treat the claimant. The ALJ rejected the respondents' contention that Dr. Brown referred the claimant to Dr. Parry for a single evaluation. In support of this determination, the ALJ found that two reports of Dr. Brown, dated April 29, 1999, and May 2, 2000, are the "most convincing evidence" that Dr. Brown referred the claimant to Dr Parry for evaluation and treatment. The ALJ also found there is no evidence that Dr. Brown has "in any way objected to ongoing treatment by Dr. Parry."
I.
On review, the respondents contend substantial evidence does not support the ALJ's determination that Dr. Brown referred the claimant to Dr. Parry in the normal progression of authorized treatment. The respondents specifically attack Finding of Fact 4 where the ALJ found that there is no evidence Dr. Brown objected to ongoing treatment by Dr. Parry, and where the ALJ found Dr. Parry provided reports to Dr. Brown. The respondents also dispute Finding of Fact 5 insofar as the ALJ found the deposition "statements of Dr. Brown did not clearly establish that the referral was for a one-time only evaluation." We find no error.
Treatment rendered as a result of a referral in the normal progression of authorized treatment is compensable. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). The question of whether a valid referral occurred is one of fact for determination by the ALJ. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). As the parties recognize, we have previously held that an authorized treating physician may limit the scope of a referral, or may make a general referral for treatment. The determination of whether the referral was limited or general is also a question of fact. Gamboa v. ARA Group, Inc., W.C. No. 4-106-924 (November 20, 1996).
Because these issues involve questions of fact, we must uphold the ALJ's order if support by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). To the extent the testimony of a medical expert contains internal inconsistencies, the ALJ may resolve them by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The respondents' argument notwithstanding, substantial evidence supports the ALJ's finding that Dr. Brown made a general referral for treatment, not a limited referral for an evaluation. As the ALJ expressly found, the report authored by Dr. Brown on April 29, 1999, and his written response to counsel's letter of May 2, 2000, support this determination. It is true that Dr. Brown made some statements in his deposition suggesting that the scope of the referral was limited. However, as the ALJ found in Finding of Fact 5, Dr. Brown's testimony was far from unequivocal. Dr. Brown testified that he regularly makes referrals to specialists, and admitted authoring the April 29 report. Further, Dr. Brown testified that he didn't have "any objection" to Dr. Parry referring the claimant to other providers, and he did not consider himself the claimant's "gatekeeper." (Brown Depo. pp. 18, 20).
We also conclude the record supports the disputed portions of Finding of Fact 4. As the ALJ found, there is no evidence Dr. Brown "objected" to the ongoing treatment provided by Dr. Parry in the sense that he attempted to interfere with it, or raised verbal or written protests. Although there is evidence that Dr. Brown disagreed with some of Dr. Parry's treatment recommendations, he did not register an active objection to the treatment or, so far as the record reveals, encourage the respondents to deny liability for Dr. Parry's treatment. Indeed, in response to counsel's May 2, 2000, letter, Dr. Brown indicated the claimant should be treated by Dr. Parry. Finally, as the claimant argues, the record establishes that Dr. Parry mailed several reports to Dr. Brown subsequent to Dr. Brown's deposition. (See Claimant's Exhibit 5 containing reports of Dr. Parry which were sent to Dr. Brown).
II.
The respondents next contend the ALJ erred as a matter of law in finding that Dr. Brown referred the claimant to Dr. Parry in the normal progression of authorized treatment. In support of this argument respondents point out the ALJ found that Dr. Brown referred the claimant to Dr. Parry because "Dr. Parry was already familiar" with the claimant. We disagree.
In City of Durango v. Dunagan, 939 P.2d 496, 500 (Colo.App. 1997), the court held "the mere fact that the claimant requested that the authorized treating physician make a referral does not mean that said referral is outside the scope of the normal progression of treatment." To the contrary, the legal test is whether the treating physician exercised independent medical judgment in making the referral, and resolution of that question is one of fact for determination by the ALJ. City of Durango v. Dunagan, supra.
Here, the record contains ample evidence to support the ALJ's determination that Dr. Brown exercised independent judgment concerning the referral to Dr. Parry. Dr. Brown testified referral to a neurologist was necessary to assess a possible "double crush" injury to the claimant's right upper extremity. Under these circumstances, the mere fact that the claimant suggested a particular physician, Dr. Parry, does not negate the ALJ's factual determination that Dr. Brown exercised his independent medical judgment in making the referral. City of Durango v. Dunagan, supra.
Insofar as the respondents reiterate the argument that the referral was limited in scope, we disagree for the reasons stated in Part I above.
III.
Finally, the respondents argue the ALJ erred in determining the respondents are liable for Dr. Parry's "referrals." However, read in its totality, the ALJ did not order the respondents to pay for any particular treatment rendered by providers to whom Dr. Parry referred the claimant. Consequently, we conclude this portion of the order does not require the respondents to pay for any specific medical benefits, and is not final and reviewable. Section 8-43-301(2), C.R.S. 2000; Poole v. Rocky Mountain Nurses, W.C. No. 4-349-438 (April 13, 1998). Therefore, this portion of the petition to review must be dismissed without prejudice.
IT IS THEREFORE ORDERED that the ALJ's order dated October 26, 2000, is affirmed insofar as it ordered the respondents to pay for the evaluation and treatments rendered by Dr. Parry.
IT IS FURTHER ORDERED that the petition to review is dismissed without prejudice insofar as it determines the respondents are liable for "referrals" made by Dr. Parry.
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. 2000. 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 May 10, 2001 to the following parties:
James Rosson, 6131 Xavier Ct., Arvada, CO 80003
Owens Minor, Inc., 4800 Cox Rd., Gen Allen, VA 23060
American Protection Insurance Company, Dawn Kaup, Lumbermens Mutual, P. O. Box 5347, Denver, CO 80217-5347
Douglas R. Phillips, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy