Opinion
W.C. No. 4-408-646.
October 8, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined that injuries sustained by the claimant en route from an independent medical examination (IME) are compensable under the quasi-course of employment doctrine and awarded additional temporary disability and medical benefits. We reverse the ALJ's conclusion and set aside the award.
In May 1998 the claimant suffered a compensable cervical injury. In October 2002 the treating physician determined the claimant to be at maximum medical improvement (MMI) with 23 percent whole person impairment but no impairment from a psychological component of the injury. The respondents filed a Final Admission of Liability (FAL) consistent with the treating physician's finding of MMI and medical impairment rating. The claimant objected to the FAL and requested a Division-sponsored IME. The claimant also applied for a hearing on the issues of permanent total disability and permanent partial disability (PPD).
Thereafter, the respondents scheduled an appointment with a physician of their own choosing (IME) for January 21, 2003, and requested the IME physician issue an opinion concerning the causal relationship between the claimant's alleged psychological impairment and the industrial injury. The claimant suffered multiple injuries in a one car motor vehicle accident while driving home from the IME.
The ALJ found that the travel to the IME was an implied part of the claimant's employment contract because an IME "involves identification of medical issues which may lead to medical treatment," for which the respondents are liable under the Workers' Compensation Act (Act). Therefore, the ALJ determined the claimant's attendance at the IME fell within the claimant's quasi-course of employment, and that the resulting injuries were a compensable consequence of the original industrial injury. The ALJ's order awarded additional temporary disability and medical benefits on account of the January 21 injuries.
On review the respondents contend, inter alia, that travel to an IME is not a quasi-course of employment activity. We agree.
The quasi-course of employment doctrine applies to injuries sustained in the course of authorized medical treatment. The theoretical basis for the doctrine is that because the Act requires the employer to provide medical treatment and the claimant to submit to it, a "trip to the doctor's office becomes an implied part of the employment contract," and such injuries during travel to authorized medical treatment are considered to be within the range of compensable consequences of the original industrial injury. Price Mine Service v. Industrial Claim Appeals Office, 64 P.3d 936, 938 (Colo.App. 2003); Excel Corp. v. Industrial Claim Appeals Office, 860 P.2d 1393, 1395 (Colo.App. 1993). Thus, the doctrine attenuates the "usual requisites of compensability" involving the time and place limitations of employment. Price Mine Service v. Industrial Claim Appeals Office, 64 P.3d at 938. However, courts have declined to apply the quasi-course doctrine where there is "some added factor weakening the causal connection" between the injuries and the employment, including cases where "the purpose of the trip was not treatment by a doctor, but examination for purposes of a workers' compensation claim." 1 Larson's Workers' Compensation Law, § 10.07 (2003).
Furthermore, in Jarosinski v. Industrial Claim Appeals Office, 62 P.2d 1082 (Colo.App. 2002), the court held that problems resulting from a claimant's negative psychological reaction to the litigation process are distinguishable from the type of injuries covered by the quasi-course of employment doctrine. The court ruled that when the claimant is presenting evidence and making argument in support of the claim the claimant "is not performing an activity which may fairly be characterized as service or activity inherent in the employment contract," but is instead "exercising the right to make a claim." Id. at 1085. In other words, the court held that if the element of a contractual obligation is missing, the resulting injuries are not compensable under the quasi-course of employment doctrine. Id. at 1085.
The Jarosinski court reasoned that if "litigation stress" type injuries are compensable, respondents would be required to calculate, to the extent they are able, whether the benefits of successful litigation are likely to outweigh the potential costs if the claimant experiences a psychological reaction to an adverse ruling. As a consequence, "respondents might forgo the presentation of valid defenses and drive up employers' costs of procuring workers' compensation insurance," which would be contrary to the statutory purposes of assuring the quick and efficient delivery of benefits at a reasonable cost to the employer. Id. at 1085; 8-40-102(1), C.R.S. 2003.
Accordingly, in Turner v. Waste Management of Colorado, W.C. No. 4-463-547 (September 24, 2003), we held that a claimant's injuries sustained while driving home after attending a vocational evaluation scheduled by the employer were not compensable consequences of the original industrial injury. Instead, we concluded that the "contractual obligation" element of the quasi-course doctrine was absent and the vocational evaluation was part of the litigation process. Furthermore, we noted that respondents may be inclined to forego the use of vocational experts when travel is required if the scope of compensable consequences of an industrial injury includes injuries sustained during travel to meet with vocational experts. Because this would be contrary to the legislative purpose of § 8-40-102, we conclude injuries sustained while attending a vocational evaluation are beyond the scope of the quasi-course of employment doctrine.
We applied the same principles in Ince v. Southwest Memorial Hospital, W.C. No. 4-535-488 (April 19, 2004), where the claimant alleged bilateral upper extremity injuries from driving to a DIME examination. In so doing, we concluded that a DIME is not properly characterized as "medical treatment" which respondents are required to provide and the claimant is required to accept as part of the implied contractual arrangement created by the Act. Rather, the DIME serves an evidentiary function in the process of litigation disputes over MMI and PPD. It follows that a claimant's attendance at a DIME and related travel is not part of the contractual relationship but instead is related to the litigation process as described in Jarosinski v. Industrial Claim Appeals Office, supra.
The fact that an IME physician may make treatment recommendations which ultimately lead to additional treatment is immaterial. Rather, the purpose of the examination is dispositive. Indeed, in Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993), the court held that where the medical provider is unauthorized, injuries sustained while traveling to and from the provider are not compensable even if the purpose of the appointment is to obtain "treatment" for the industrial injury.
The claimant's arguments do not persuade us to depart from our conclusions in Turner and Ince. Neither do we find any significant legal distinction between those cases and the facts presented here. The respondents filed a FAL which asserted the claimant reached MMI from her medical and psychological injuries with no permanent psychological impairment. MMI exists when the claimant's condition is stable and no further treatment will improve that condition. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Thus, the respondents' FAL expressly asserted the claimant did not require any further medical treatment for the industrial injury. Under these circumstances, the record fails to support the ALJ's implicit determination that the IME fell within "medical treatment" the respondents were required to provide. Rather, the procedural status of the claim compels the conclusion the IME was scheduled as part of the litigation process to defend the claimant's request for additional compensation. Consequently, the ALJ erred in finding that the claimant's travel to the IME was within the claimant's quasi-course of employment. See Jarosinski v. Industrial Claim Appeals Office, supra. Therefore, we reverse the ALJ's finding that the January 21 injuries are compensable and the consequent award of benefits.
The claimant's remaining arguments on this issue have been considered and are not persuasive. The claimant points out that although the respondents voluntarily requested the IME, she was required to attend the IME or risk the suspension of benefits. Under these circumstances, the claimant argues her attendance at the IME was inherently part of the contractual obligations underlying her employment relationship. We rejected a similar argument in Turner after acknowledging that respondents are not required to provide vocational services but claimants are required to attend vocational evaluations or risk the suspension of benefits. See Section 8-43-404(4), C.R.S. 2003; 1987 Colo. Sess. Laws, ch. 51 at 387-394. The mere fact that the Act authorizes certain sanctions for failing to cooperate with the litigation process does not bring all activities associated with litigation of a claim within the quasi-course of employment doctrine as that concept has been defined by the courts.
Moreover, we reject the claimant's contention that the facts presented here are essentially identical to the circumstances in Employers Fire Insurance Co. v. Lumbermen's Mutual Casualty Co., 964 P.2d 591 (Colo.App. 1998). In Employers Fire Insurance Co. v. Lumbermen's Mutual Casualty C., supra, the claimant suffered injuries in a motor vehicle accident while traveling "to the office of a doctor selected by his employer for an examination and possible rating for permanent disability." Id. at 593. The court concluded that because "the injuries would have provided the basis for a second" claim for workers' compensation benefits, the injuries were not compensable consequences of the original injury under the quasi-course of employment doctrine.
We note that § 8-43-404(5), C.R.S. 2003, affords the employer the right to select the physician who will treat the injuries and make the initial determination of permanent impairment [ see § 8-42-107(8)(c), C.R.S. 2003]. Thus, the court's statement of facts in Employers Fire is insufficient to ascertain whether the injuries occurred while the claimant was traveling to an IME or an appointment with an authorized treating physician.
In any case, Jarosinski v. Industrial Claim Appeals Office, 62 P.3d at 1086, limits the holding of Employers Fire to injuries arising out of the employer's implied contractual obligation to provide medical treatment. Consequently, we reject the claimant's contention that Employers Fire stands for the proposition that injuries sustained during travel to an IME fall within the quasi-course of employment doctrine.
In view of our disposition we need not consider the respondents' further arguments. Therefore, we do not consider the contention that the claimant's injuries occurred during a personal deviation because the claimant was not authorized to drive to or from the IME appointment. Moreover, because the ALJ erred in finding the injuries compensable he erroneously ordered the respondents to pay additional temporary disability and medical benefits on account of the January 21 injuries.
IT IS THEREFORE ORDERED that the ALJ's order dated February 26, 2004 is reversed. The request for workers' compensation benefits for injuries sustained on January 21, 2003, is denied and dismissed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
LaVonda Trover, Clifton, CO, Coors Ceramics, Grand Junction, CO, Gayle Trottnow, Royal SunAlliance, Greenwood Village, CO, Margo Bowling, Allstate Insurance Company, Englewood, CO, Joanna C. Jensen, Esq., Grand Junction, CO, (For Claimant).
Sam D. Starritt, Esq., Grand Junction, CO, (For Respondents Coors Ceramics and Royal SunAlliance).
Jeffrey S. Wittebort, Esq., Centennial, CO, (For Intervenor).