4-561-605 (2005). RYAN K. RADWAY (FINAL ORDER).

• Case Date: March 30, 2005
• Court: Colorado

Colorado Workers Compensation 2005. 4-561-605 (2005). RYAN K. RADWAY (FINAL ORDER) INDUSTRIAL CLAIM APPEALS OFFICEW. C. No. 4-561-605IN THE MATTER OF THE CLAIM OF RYAN K. RADWAY, Claimant, v. LETSON ENTERPRISES, INC., Employer, and FIRE INSURANCE EXCHANGE, Insurer, Respondents.FINAL ORDERThe claimant seeks review of an order of Administrative Law Judge Klein (ALJ). The claimant contends the ALJ erred in finding that the need for medical treatment was caused by the claimant's post-injury activities. The claimant also contends the ALJ erred in finding the respondents are not liable for penalties based on violation of the rule of procedure concerning prior authorization for medical treatment, and for dictating medical treatment in violation of § 8-43-503(3), C.R.S. 2004. We affirm the denial of medical benefits and remand for entry of a new order concerning penalties. The claimant sustained a compensable back injury on November 5, 2002, and on December 18, 2002, underwent surgery to repair a ruptured disc at L3-4. By January 9, 2003, the surgeon reported the claimant had no complaints and was increasing his activities. In September 2003 the claimant was examined by Dr. Williams, an authorized treating physician (ATP). The claimant reported morning stiffness and pain when rolling over in bed, and he was given a prescription for physical therapy. In December 2003 the claimant reported that his low back pain no longer resolved by the end of the day and he could not ski or "do sports." The ATP reported the claimant had ongoing pain, was not stabilized and needed a new MRI of the low back. RYAN K. RADWAY W.C. No. 4-561-605 Page On January 6, 2004, after the MRI, the ATP reexamined the claimant and referred him to Dr. Gronseth "for a second opinion in consultation about what else might be considered at this point." On January 12, 2004, the insurance adjuster wrote to the ATP and expressed concern, in light of information that the adjuster received from the employer, that the claimant's post-surgical recreational activities might be the cause of his symptoms. On January 13, 2004, the employer authored a letter to the adjuster stating that to his knowledge the claimant skied, biked and climbed several fourteen thousand foot mountains "during the past year." On January 22, 2004, the adjuster forwarded the employer's letter to the ATP, and requested that the ATP reexamine the claimant and address the cause of his symptoms before ordering a referral to another physician. The ATP did not respond to the adjuster's inquiries until May 18, 2004, and only after an April 30, 2004, inquiry from the respondents' counsel. On May 18 the ATP expressed the view the claimant's symptoms are related to the industrial injury. Meanwhile, on January 29, 2004, a second reading of the January MRI indicated the presence of mild facet arthropathy at L3-4 and "more significantly at L5-S1." On January 30, 2004, the ATP again examined the claimant and referred him to Dr. Siegel "for consideration of whether or not facet joint arthritis could contribute and whether or not a thermal procedure on his disc might be of benefit." The referral to Dr. Siegel was forwarded to the adjuster on March 4, 2004, but the ALJ found the adjuster did not "independently advise" the claimant that Siegel was not authorized until June 11, 2004. The respondents obtained a medical records review by Dr. Brodie. In a report dated June 24, 2004, Dr. Brodie opined as a matter of medical probability that the worsening of the claimant's back symptoms resulted from "axial loading forces" caused by the claimant's post-surgical "recreational and sports activities." Crediting the medical opinion of Dr. Brodie over that of the ATP, and based on the appearance of "new symptoms" in September 2004 and "new pathology" at L4-5 L5-S1, the ALJ found the claimant's need for treatment was caused by the claimant's "extraordinary" recreational activities after surgery, not the November 2002 industrial injury. Consequently, the ALJ denied the claimant's request for the prescribed medical examination by Dr. Siegel. The ALJ also denied the claim for penalties under § 8-43-304(1), C.R.S. 2004, based on an alleged violation of Rules of Procedure XVI (I) and (J), 7 Code Colo. Reg. 1101-3 at 78-79, governing prior authorization for...