Opinion
W.C. No. 4-332-824
March 27, 2003
FINAL ORDER
The claimant pro se seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied his petition to reopen and the claim for certain medical benefits. We affirm.
The claimant suffered a work-related injury in 1997. The respondents designated Dr. Utt to treat the injury. On October 10, 1997, Dr. Utt placed the claimant at maximum medical improvement with 15 percent whole person impairment and recommended future medical treatment. The respondents filed a Final Admission of Liability dated January 19, 1998, which admitted liability for permanent partial disability consistent with Dr. Utt's rating and limited future medical benefits. The claimant did not timely object to the Final Admission and the claim was closed.
In 1998, the claimant began treating with Dr. Bowman, who referred him to Dr. Gebhard. The respondents declined to authorize Dr. Bowman to treat the injury. However, the respondents admit liability for the treatment of Dr. Gebhard and his referrals.
Relying on a medical report from Dr. Bowman, the claimant petitioned to reopen the claim and alleged a worsening of his condition from the industrial injury. The respondents refused voluntarily to reopen the claim.
At the commencement of the hearing before the ALJ on July 23, 2002, the respondents conceded the claimant is entitled to an award of future medical benefits not limited by the language in the 1998 Final Admission. The respondents also designated Dr. Sikka as an authorized treating physician for future medical treatment.
However, because the claimant did not submit copies of the medical expenses or medical reports from the treatment he received in 1998, the ALJ found the claimant failed to prove a causal connection between the unpaid medical expenses and the industrial injury. Therefore, the ALJ refused to hold the respondents responsible for disputed medical expenses, including the treatment by Dr. Bowman. Further, the ALJ determined the medical evidence offered by the claimant demonstrated "manifestation of the chronic nature of his compensable injury and not a worsening of his physical condition." Therefore, the ALJ determined the claimant failed to prove grounds to reopen the claim.
On appeal, the claimant contests some of the ALJ's findings of fact and conclusions of law. In particular, the claimant contends the ALJ erred in failing to find that Dr. Bowman is an authorized treating physician and that the claimant proved a worsening of his condition from the industrial injury. The claimant argues there is further evidence in the transcript to support these arguments.
The claimant also contends the ALJ erroneously failed to admit medical reports concerning his worsened condition and his 1998 treatment. In particular, the claimant contends the reports were not timely filed or exchanged with opposing counsel because he was unaware of the rules of procedure which govern the admission of medical records. Further, he contends he assumed that because he signed release of information forms for the respondents, that the respondents had copies of all relevant medical reports. We perceive no basis on which to disturb the ALJ's determination.
The claimant in a workers' compensation claim is expected to be prepared to present all of his evidence at the appointed hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). Further, the claimant is presumed to know applicable statutes and is required to act accordingly. Paul v. Industrial Commission, 632 P.2d 638 (Colo.App. 1981). Therefore, the claimant's ignorance of the applicable procedural rules which govern the exchange of medical reports does not afford grounds for appellate relief. See Manka v. Martin, 200 Colo. 160, [ 200 Colo. 260], 614 P.2d 875 (1980) ( pro se party is held to the same requirements as an attorney).
In any case, the party asserting error has the burden to present a record sufficient to prove the error. If the appealing party fails to provide an adequate record, the correctness of the ALJ's rulings must be presumed. See People v. Lawrence, __ P.3d __ (Colo.App. No. 99CA2431, December 6, 2001).
The claimant's petition to review designated the July 23 hearing transcript as part of the record on review. The claimant then requested a waiver of the cost of the transcript. However, the claimant later withdrew his request for a transcript under the indigency program. Consequently, no transcript has been provided. In the absence of a transcript, the record is legally insufficient to support the claimant's contention that the ALJ erroneously excluded certain medical records.
Next, the determination of whether to reopen a claim is discretionary with the ALJ. Osborne v. Industrial Commission, 725 P.2d 63 (Colo.App. 1986). We may not disturb the ALJ's determination in the absence of fraud or an abuse of discretion. Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). The standard on appeal of an alleged abuse of discretion is whether the ALJ's determination exceeds the bounds of reason, as where it is contrary to the evidence or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
In the absence of a transcript, we must presume the ALJ's pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Under these circumstances, we cannot say the ALJ abused his discretion in denying the petition to reopen. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo.App. 2002).
In addition, the respondents are only liable for authorized medical treatment which is reasonably 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 authority to treat the injury at the respondents' expense, and not the reasonableness of a particular treatment. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Under § 8-43-404(5), C.R.S. 2002, the respondents are afforded the right in the first instance to select a physician to treat the industrial injury. Once the respondents have exercised their right to select the treating physician, the claimant may not change physicians without permission from the insurer or an ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996). However, a physician who commences to treat the industrial injury upon a referral made in the "normal progression of authorized treatment" becomes an authorized treating physician. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
The ALJ found the claimant did not obtain approval from the respondents to treat with Dr. Bowman, and Dr. Utt did not refer the claimant to Dr. Bowman. (Finding of Fact 7). As stated above, we must accept these findings of fact. Further, these findings support the ALJ's conclusion that Dr. Bowman and his referrals are not authorized treating physicians. The respondents are only liable for treatment provided by the physicians they designate to treat the injury, or voluntarily agree to pay, such as Dr. Gebhard and his referrals.
The claimant's remaining arguments have been considered and are not persuasive.
The ALJ is only required to make specific findings on evidence found persuasive and determinative, and is under no obligation to expressly cite evidence he determined to be unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Here, the ALJ was not persuaded by Dr. Bowman's opinions. Consequently it is immaterial that the ALJ did not quote Dr. Bowman's entire May 4 report in Finding of Fact 11.
IT IS THEREFORE ORDERED that the ALJ's order dated August 12, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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. 2002. 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 March 27, 2003 to the following parties:
Thomas C. Smith, 814 Elberta Ave., Palisade, CO 81526
Town of Palisade, 175 W. 3rd St., Palisade, CO 81526
Judy Montoya, CIRSA, 3665 Cherry Creek North Drive, Denver, CO 80209
Fred Ritsema, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado