Opinion
W.C. No. 4-365-429
November 7, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied the claimant's request for additional permanent partial disability benefits and penalties against the respondents' attorney. We affirm.
The claimant suffered compensable injuries to his thoracic spine, right shoulder and right arm. The claimant alleged that as a result of the injuries he developed Reflex Sympathetic Dystrophy (RSD) in the right and left upper extremities and contends he requires additional treatment for the RSD.
The claimant underwent a Division-sponsored independent medical examination (DIME). The DIME physician diagnosed a right thoracic strain with myofascial pain in the upper right quadrant, and right ulnar neuritis. However, the DIME physician ruled out a diagnosis of RSD. Consequently, the DIME physician placed the claimant at maximum medical improvement (MMI) and assigned 8 percent whole person impairment based on 4 percent impairment to the thoracic spine and 4 percent for right ulnar nerve paresthesias.
The respondents filed a Final Admission of Liability for the payment of permanent partial disability benefits consistent with the DIME physician's rating. The claimant timely objected and applied for a hearing to overcome the DIME physician's findings on MMI and medical impairment.
On conflicting medical evidence the ALJ found the claimant does not have RSD and that the left sided symptomatology is not causally related to the industrial injury. Based on these findings, the ALJ determined the claimant failed to sustain his burden to overcome the DIME physician's opinions. Therefore, the ALJ approved the respondents' Final Admission of Liability on the issue of permanent partial disability benefits.
The ALJ also rejected the claimant's allegation that the respondents' attorneys violated § 8-43-503(3), C.R.S. 2002, and the principles announced in Simms v. District Court, 908 P.2d 520 (1996), by sending a letter to Dr. Holen. Therefore, the ALJ denied the claimant's request for penalties.
I. A.
On review the claimant contends the ALJ erred in failing to find the claimant developed RSD as a consequence of the industrial injury. Therefore, the claimant contends the ALJ erred in finding the claimant failed to overcome the DIME physician's findings of MMI and medical impairment. We disagree.
Section 8-42-107(8)(c), C.R.S. 2002, provides the DIME physician's "finding" of medical impairment, including a "finding that there is no permanent medical impairment" may be overcome only by clear and convincing evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). "Clear and convincing evidence" is evidence which is stronger than a preponderance, is unmistakable and is free from serious or substantial doubt . DiLeo v. Koltnow, 200 Colo. 119, 613 P.2d 318 (1980); Page v. Clark, 197 Colo. 306, 592 P.2d 792 (1979).
It is also well established that the DIME process requires to physician to diagnosis the injury and determine all losses caused by the industrial injury. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000); Wackenhut Corporation v. Industrial Claim Appeals Office, 17 P.3d 202 (Colo.App. 2000). Thus, the DIME physician's determination that the industrial injury has not caused a particular medical condition must also be overcome by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002); Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 590).
Whether the DIME physician's medical impairment rating has been overcome by clear and convincing evidence is a question of fact for the ALJ. Metro Moving Storage Co. v. Gussert, supra. Accordingly, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d at 415.
Contrary to the claimant's contention, the ALJ was not required to afford greater weight to the opinions of treating physicians than the DIME physician. To the contrary, the DIME physician's opinion is presumed to be correct unless overcome by clear and convincing evidence and the ALJ is only required to defer to the treating physician's opinions in the absence of a DIME. Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998); Postlewait v. Midwest Barricade, 905 P.2d 21 (Colo.App. 1995); Metro Moving Storage Co. v. Gussert, supra.
Here, the ALJ credited the DIME physician's report that confirmatory testing failed to support a diagnosis of RSD. The DIME physician's opinions are buttressed by the June 6 and July 5, 2001 medical reports of Dr. Worwag and the deposition testimony of Dr. Hart, and Dr. Ring. (Dr. Ring depo. pp. 5, 11, 16, 30, 47; Dr. Hart depo. pp. 66, 77, 78). We have no authority to substitute our judgment for that of the ALJ concerning the credibility of the various medical experts or the resolution of conflicting expert testimony. Cordova v. Industrial Claim Appeals Office, supra; Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Therefore, we cannot say the ALJ erroneously found the claimant does not have RSD. Thus, it is immaterial the medical records contain some medical evidence which, if credited, might support a finding that the claimant demonstrated a positive result on one or two confirmatory tests for RSD. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The claimant's further arguments on this issue have been considered and do not alter our conclusions. Moreover, the ALJ's determination that the claimant failed to prove he has RSD supports the conclusion the DIME physician did not err in failing to include an impairment rating for RSD.
B.
Next, MMI is defined as the point in time when the claimant's condition is "stable and no further treatment is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 2002; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). As argued by the claimant, MMI is inconsistent with a recommendation for further treatment which has a reasonable prospect of improving the claimant's condition from the industrial injury. See Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995).
Because the record supports the ALJ's determination that the claimant failed to prove he has RSD, evidence that some of the treating physicians have recommended further treatment for RSD is legally insufficient to overcome the DIME physician's opinion that the claimant is at MMI. It follows the ALJ could, and did, find the claimant failed to present clear and convincing evidence the DIME physician erred in placing him at MMI.
II.
The claimant also contends the ALJ erred in failing to impose penalties against the respondents' attorney. Again we disagree.
A.
Section 8-43-503(3) states that no representative of the employer or insurer shall "dictate to any physician the type or duration of treatment" to be provided. The rules of statutory construction require that statutes be construed to give effect to the legislative intent. Spracklin v. Industrial Claim Appeals Office, __P.3d __ (Colo.App. No. 02CA0274, October 24, 2002). To discern the intent of the General Assembly, we must first examine the language of the statute. If the statutory language is clear and unambiguous, the statute must be applied as written, and it is unnecessary, to resort to other rules of statutory construction. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001).
Webster's II New College Dictionary (1995) defines the term "dictate" as the process of issuing "orders or commands." Application of this definition to § 8-43-503(3) leads to no absurdity. Thus, we conclude § 8-43-503(3) precludes a representative of the insurer from issuing commands to a treating physician concerning the type of treatment to be provided to the claimant.
Our construction of the statute is consistent with Provo v. Industrial Claim Appeals Office, ___ P.3d ___(Colo.App. No. 01CA1239, September 12, 2002), where the respondents' attorneys advised the insurer to contest the reasonableness of chiropractic treatment provided to the claimant. The court concluded that although the respondents' attorneys recommended the insurer not pay medical bills, "there was no indication" the attorneys "dictated any action or inaction by any physician." Consequently, the court held the claimant failed to prove the attorneys violated § 8-43-503(3). See also Brodeur v. Industrial Claim Appeals Office (Colo.App. No. 01CA06353, December 6, 2001) (not selected for publication) (no violation of § 8-43-503(3) where respondents exercised their right to contest reasonableness/relatedness of treatment and claimant failed to prove the refusal to pay for treatment was a bad faith means of dictating course of treatment).
Here, the respondents' attorney sent Dr. Holen a letter dated October 17, 2001. The letter stated that the purpose was to provide Dr. Holen "some background information regarding" the claimant's medical history. The letter described the claimant's history of requesting narcotic prescriptions for treatment of the industrial injury. The ALJ recognized that the letter may have been written to prejudice Dr. Holen against the claimant or "for some other less than laudable purpose." However, the letter did not direct Dr. Holen provide a particular treatment, or prohibit him from providing any particular treatment including narcotics. Under these circumstances, the ALJ reasonably inferred the letter did not purport to "dictate" or order any course of treatment in violation of § 8-43-503(3). (Conclusions of Law 4).
B.
We note that permitted discovery is workers' compensation claims is limited to one set of interrogatories and approved depositions. Rules of Procedure, Part VII(E), 7 Code Colo. Reg. 1101-3. Nevertheless, even if we assume, arguendo, that the principles announced in Samms v. District Court, supra, are applicable to this claim, and their violation is subject to penalties under § 8-43-304(1), C.R.S. 2002, § 8-43-210; Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (C.R.C.P. apply insofar as not inconsistent with the procedural or statutory provisions of the Workers' Compensation Act], we agree with the ALJ's determination the claimant failed to prove a violation of the principles discussed in Samms.
Samms involved a medical malpractice claim in which the claimant alleged physical and mental injuries caused by the defendant's failure to diagnose and treat a heart condition. During discovery, the defendant's attorney sought informal interviews with the plaintiff's treating physicians. The court held that when a plaintiff alleges a physical or mental injury as the basis for a claim of damages, the patient impliedly waives the physician-patient privilege with respect to the alleged medical or mental condition. Id at 524. However, the court added that the claimant does not waive the physician-patient privilege with respect to "all his or her personal medical matters" and, concluded that discovery must not invade medical issues which remain protected by the physician-patient privilege. Id. at 525; citing Clark v. District Court, 668 P.2d 3, 10 (Colo. 1983). Therefore, the court held that an informal interview with the plaintiff's treating physician is permissible discovery as long as the plaintiff is given reasonable advance notice of any proposed interview so that the plaintiff has an opportunity to attend the interview, and ensure that the interview is limited to matters not subject to the physician-patient privilege, or seek a protective order.
In this case, the ALJ found the claimant's attorney was provided a copy of the October 17 letter at the same time it was mailed to Dr. Holen. Under these circumstances, the ALJ determined the letter complied with the Samms requirement that opposing counsel have reasonable notice of any proposed interview with the treating physician.
Insofar as the letter invited Dr. Holen to contact the respondents' attorney if he had "any questions," there is no finding or evidence that Dr. Holen did contact the respondents' attorney. ( See Tr. pp. 16-18). Consequently, the record supports the ALJ's determination that mailing a copy of the letter to claimant's counsel at the same time it was mailed to Dr. Holen afforded the claimant adequate advance opportunity to take appropriate action to ensure Dr. Holen did not disclose privileged information if he subsequently contacted the respondents' attorney with questions. Further, there is no indication that any privileged information was provided. Thus, we agree with the ALJ that in the absence of any other contact by the respondents' attorney, the claimant failed to prove a violation of Samms which would support the imposition of penalties.
IT IS THEREFORE ORDERED that the ALJ's order dated April 5, 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. 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 ___________November 7, 2002 _________to the following parties:
Robert York, P. O. Box 3171, Grand Junction, CO 81502
Administrator, Larchwood Inns, 2845 N. 15th, Grand Junction, CO 81506
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
J. Keith Killian, Esq. and Amy K. Eaton, Esq., P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
Brad Miller, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Hurtado