Opinion
W.C. No. 4-544-125
May 15, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied medical benefits for treatment by Dr. Higginbotham. The claimant contends the ALJ erred in finding Dr. Higginbotham is not an authorized treating physician. We disagree and, therefore, affirm.
On August 29, 2002, the claimant suffered a work-related injury to his low back. The employer referred the claimant to Dr. Bergland for treatment. Dr. Bergland diagnosed a lumbar strain and prescribed treatment in the form of physical therapy and medication. The claimant underwent physical therapy in April and May 2002. On June 4 Dr. Bergland's office referred the claimant for an MRI. Based on the results of the MRI, the claimant was then referred to Dr. Ridings who examined the claimant on June 25 and diagnosed a resolving lumbar strain. However, Dr. Ridings recommended additional physical therapy. On July 2, 2002, Dr. Bergland's office released the claimant to a trial period of regular employment.
Although the respondents ultimately admitted liability for the injury, they filed a Notice of Contest on July 9, 2002. After receiving the Notice, the claimant became concerned he might be financially responsible for Dr. Bergland's treatment. The ALJ found the claimant's attorney subsequently told Dr. Bergland's office that the respondents refused to pay Dr. Bergland's bill and, in response, Dr. Bergland's office indicated the claimant should probably cancel his next scheduled appointment. Thereafter the claimant's attorney wrote the respondents' attorney and requested confirmation the respondents would pay for the MRI and the medical expenses incurred with Dr. Bergland and Dr. Riding. The letter indicated that if the respondents did not guarantee payment within 48 hours the claimant would select a new treating physician.
When the claimant's attorney did not receive a satisfactory response to his letter, the attorney notified the respondents that the claimant selected Dr. Higginbotham as the authorized treating physician. A few weeks later the claimant began treating with Dr. Higginbotham.
Under these circumstances, the ALJ determined the claimant failed to prove Dr. Bergland refused to provide further treatment for a non-medical reason. Rather, the ALJ determined the claimant's attorney inferred that Dr. Bergland would refuse treatment if the respondents refused to pay the bills. However, the ALJ found the statements by claimant's counsel were incorrect. Consequently, the ALJ determined the right of selection never passed to the claimant and the respondents did not give the claimant implied permission to treat with Dr. Higginbotham. Therefore, the ALJ found Dr. Higginbotham is not an authorized treatment physician and refused to hold the respondents liable for Dr. Higginbotham's treatment of the industrial injury.
On review, the claimant contends the record compels a finding that Dr. Bergland refused to treat the claimant for financial reasons upon learning that the claimant and the respondents were unwilling to guarantee payment. We disagree.
Respondents are liable for all 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. 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). Furthermore, it is now well established that the respondents' right to select the treating physician exists irrespective of whether the respondents deny liability for the injury. See Yeck v. Industrial Claim Appeals Office, 966 P.2d 228 (Colo.App. 1999); Dominguez v. Monfort Colorado, W.C. No. 3-857-241 (February 27, 1991), aff'd, on other grounds, Monfort of Colorado v. Industrial Claim Appeals Office, (Colo.App. No. 91CA0378, December 12, 1991) (not selected for publication). However, if the physician selected by the respondents refuses to treat the claimant for non-medical reasons, and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988) ; Teledyne Water Pic v. Industrial Claim Appeals Office, Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff'd, Teledyne Waterpik v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992).
Whether an authorized treating physician has refused to treat the claimant for non- medical reasons is a question of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra. The ALJ's resolution is binding on appeal if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002.
Substantial evidence is that quantum of probative evidence which a rational fact- finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Under the substantial evidence standard we must review the evidence in the light most favorable to the prevailing party, and accept the ALJ's resolution of conflicts in the evidence, as well as the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Buhrmann v. University Health Science Center, W.C. No. 4-253-689 (November 4, 1996).
In Yeck v. Industrial Claim Appeals Office, supra, the claimant sustained a compensable back injury and the employer selected a treating physician who administered care. When the claimant stated he felt "fine" the authorized provider placed the claimant at maximum medical improvement. However, the claimant later testified he was not fine and sought further treatment from a physician of his choosing. An ALJ found the authorized provider did not refuse to treat the claimant. Therefore, the ALJ held the claimant was not free to select a new treating physician.
On appeal the court rejected an argument that § 8-43-404(5)(a) is not applicable where the insurer denies liability and the claimant may have to pay for such treatment if the claim is not found to be compensable. Instead, the court held that the respondents retain an interest in being apprised of the course of treatment for which they might ultimately be held liable, even though they initially deny liability for the claim. Yeck v. Industrial Claim Appeals Office, 996 P.2d at 229. Consequently, the court held that the insurer may deny liability and retain the right to select a treating physician in the event they later admit liability or are found liable for the injury. Ibid at 229. Further, the court concluded that concerns over the denial of a claim are adequately addressed by the expedited hearing provisions of § 8-43-203(1)(a), C.R.S. 2002.
Here, there is nothing in Dr. Bergland's medical reports which suggests he refused to treat the claimant. Further, the claimant admitted he did not personally inquire whether Dr. Bergland would treat him without a guarantee of payment. (Tr. p. 11). Rather, the claimant stated that he decided he did not want to continue to treat with Dr. Bergland and elected to treat with a doctor who would be paid by his group health insurance, if the respondents were not going to guarantee payment of Dr. Bergland's bills. (Tr. pp. 12-13). Similarly, the letter from the claimant's attorney to the respondent's attorney dated July 19 does not allege Dr. Bergland refused to treat the claimant. To the contrary, the letter indicated the claimant's attorney was going to "presume" that the authorized treating physicians would refuse to provide further treatment if the respondents did not guarantee payment within 48 hours of receipt of the letter. (Respondents' Hearing Exhibits 7). Under these circumstances, there is substantial evidence to support the ALJ's finding that the claimant failed to prove Dr. Bergland refused to provide treatment.
Moreover, the ALJ's findings support the conclusion the right to select a treating physician never passed to the claimant. Therefore, the ALJ did not err in failing to hold the respondents liable for Dr. Higginbotham's medical bills.
IT IS THEREFORE ORDERED that the ALJ's order dated November 7, 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 May 15, 2003 to the following parties:
Matthew Dufresne, 2816 Hayman Terrace, Colorado Springs, CO 80910
Corby Young, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Sandi Goldberg, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016-8208
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq. and Susan A. Kraemer, Esq., 6750 Stapleton South Drive, #200, Denver, CO 80216 (For Respondents)
BY: A. Hurtado