Claim Appeals Office of the State of Colorado WC No.
Simpson Eldredge Hersh & Jardine, P.C., Nickolas D.
Fogel, Nelson Boyle, Stephan J. Marsh, Englewood, Colorado,
Appearance for Respondent Industrial Claim Appeals Office
Ruegsegger Simmons Smith & Stern, LLC, Michele Stark
Carey, Denver, Colorado, for Respondents Eberl's Claim
Service and Liberty Mutual Insurance
1 In this workers' compensation action, Judy Berthold
(claimant) challenges an order of the Industrial Claim
Appeals Office (Panel). To resolve claimant's challenge,
we must consider the effect of her approved request to begin
treatment with a new physician. Specifically, did her
treatment with her newly approved physician automatically
terminate her first physician's status as an authorized
treating physician (ATP)? The answer matters because her
first physician opined that claimant had reached maximum
medical improvement (MMI) after claimant had begun
treating with her new physician. If her first physician was
no longer an ATP at the time of this MMI finding,
claimant's employer could not properly rely on that
2 To answer the broader query, we must address two subsidiary
questions of first impression. First, does newly enacted
section 8-43-404(5)(a)(VI)(B), C.R.S. 2017 - which
automatically terminates the relationship between an ATP and
an injured worker upon treatment with a new ATP - apply
retroactively to a request to change physicians made
before the statutory provision took effect? Second,
if it does not apply retroactively, does the termination
provision contained in section 8-43-404(5)(a)(IV) apply to
all changes of physician or is it limited to changes made
under section 8-43-404(5)(a)(III) "within ninety days
after the date of the injury"?
3 We hold that the termination provision of section
8-43-404(5)(a)(VI)(B) applies only to a request to change a
treating physician made after the effective date of that
provision. We further hold that section 8-43-404(5)(a)(IV)
applies only to changes of physician obtained under section
8-43-404(5)(a)(III). Because claimant's request to change
her physician predated section 8-43-404(5)(a)(VI)(B), and
because the request was not granted under section
8-43-404(5)(a)(III), her treatment with her new physician did
not automatically terminate her first physician's status
as an ATP. We therefore affirm the Panel's order.
Factual and Procedural History
4 Claimant worked as a property damage adjuster for
Eberl's Claim Service (employer). In June 2014, she
sustained injuries from falling off a roof she was inspecting
5 After the accident, claimant received medical care from Dr.
Anjmun Sharma, an ATP. Several months later, claimant
requested and received permission to begin treatment with Dr.
William Miller. Dr. Miller evaluated her for the first time
in February 2015. Yet, even after the agreed-upon change of
claimant's physician, employer periodically sent her to
Dr. Sharma for "demand appointments."
6 In January 2016, Dr. Sharma saw claimant and reported that
she "was noncompliant in presenting for functional
capacity evaluation and noncompliant in her completion of
this task. I have, therefore, assigned maximum medical
improvement [MMI] date as of 01/22/2016 with this report
serving as the final dictated report for this claim."
Dr. Miller, however, disagreed with Dr. Sharma's MMI
determination, criticizing it for lacking "medicolegal
sense." Despite this disagreement between medical
practitioners, employer filed a final admission of liability
(FAL) based on Dr. Sharma's MMI conclusion.
7 Claimant challenged the FAL's validity on the ground
that, under section 8-43-404(5)(a)(IV)(C), Dr. Miller's
assumption of her care in February 2015 automatically
terminated Dr. Sharma's status as her ATP, rendering him
unqualified to issue an MMI finding. As a result, she argued,
the FAL was invalid and she was entitled to continuing
temporary total disability benefits. Employer countered that
section 8-43-404(5)(a)(IV)(C)'s automatic termination
provision applied only to so-called "one-time"
changes of physician permitted by section
8-43-404(5)(a)(III). And claimant's change of physician
did not satisfy section 8-43-404(5)(a)(III).
8 The administrative law judge agreed with claimant, finding
that Dr. Sharma's status as claimant's ATP terminated
when she began treating with Dr. Miller, per section
8-43-404(5)(a)(IV)(C). The Panel reached the opposite
conclusion, however, and agreed with employer that section
8-43-404(5)(a)(IV)(C) applied only if the worker sought a
change of physician under section 8-43-404(5)(a)(III). The
Panel further held that the termination provision in section
8-43-404(5)(a)(VI)(B), enacted in 2016, did not apply either
because that provision was not in effect when claimant
9 Claimant contends that employer erred in relying on Dr.
Sharma's MMI finding when issuing the FAL because Dr.
Sharma was no longer an ATP at the time of his MMI
determination. She presents two theories in support: (1) her
treating relationship with Dr. Sharma was automatically
terminated by section 8-43-404(5)(a)(IV) because it applies
to all changes of physician; and (2) even if section
8-43-404(5)(a)(IV) does not apply to her change of physician,
her relationship with Dr. Sharma was nonetheless terminated
by recently amended section 8-43-404(5)(a)(VI).
10 Because claimant concedes that her physician change
occurred under section 8-43-404(5)(a)(VI), we begin by
assessing whether the new termination provision of
sub-subparagraph (VI)(B) applies to claimant's change.
Does the Termination Provision Added to Section
8-43-404(5)(a)(VI) in 2016 Apply to Claimant's Change of
11 In 2016, the General Assembly amended section
8-43-404(5)(a)(VI) to add, among other things, a provision
automatically terminating an injured worker's
relationship with an ATP once the worker begins treating with
a new ATP. Claimant argues that the legislative declaration
accompanying this amendment requires it to apply to all
workers' compensation claims and, thus, it should apply
to all changes of physician regardless of the date of the
change. Claimant is mistaken. Even where an amendment to the
workers' compensation law applies to a claim regardless
of the date of injury, the amendment does not necessarily
apply to all transactions within that claim. Instead, the
amendment applies only to transactions occurring
after the amendment's effective date unless the
legislature clearly directs otherwise, which the legislature
did not do in the amendment at issue.
Relevant Statutory Provisions
12 In 2014, when claimant sustained her work-related injury,
the Workers' Compensation Act (Act) provided a means of
changing physicians under section 8-43-404(5)(a)(VI):
In addition to the one-time change of physician allowed in
subparagraph (III) of this paragraph (a), upon written
request to the insurance carrier or to the employer's
authorized representative if self-insured, an injured
employee may procure written permission to have a personal
physician or chiropractor treat the employee. If permission
is neither granted nor refused within twenty days, the
employer or insurance carrier shall be deemed to have waived
any objection to the employee's request. Objection shall
be in writing and shall be deposited in the United States
mail or hand-delivered to the employee within twenty days.
§ 8-43-404(5)(a)(VI), C.R.S. 2014. Notably, this version
of subparagraph (VI), the mechanics of which had not changed
since the Act's 1990 reenactment, did not contain a
provision terminating a claimant's relationship with a
prior ATP upon a claimant's examination with a new ATP.
Consequently, the Panel had held that the mere selection or
designation of a new ATP under subparagraph (VI) did not have
the effect of "deauthorizing" the previously
authorized ATP. Jeppsen v. Huerfano Med. Ctr., W.C.
No. 4-440-444, 2003 WL ...