Opinion
W.C. No. 4-793-307 W.C. No. 4-794-075.
June 18, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated January 28, 2010, that denied the claims for temporary total disability (TTD) benefits and payment of certain medical bills. We affirm.
In the claim designated as W.C. 4-793-307, the claimant alleged an occupational disease to his hands. The ALJ found that the claimant had proven by a preponderance of the evidence that he suffered an occupational disease of bilateral carpal tunnel syndrome(CTS). In the claim designated as W.C. 4-794-075 the claimant suffered an accidental industrial injury to his right foot on March 30, 2009. The ALJ determined that the claimant had failed to prove by a preponderance of the evidence that he was unable to return to the usual job commencing May 2, 2009, due to the effects of the right foot injury. Consequently, the ALJ concluded that the claimant was not disabled within the meaning of § 8-42-105 and thus not entitled to TTD benefits.
The ALJ found that Dr. Sarin and Dr. Tobey were authorized treating physicians for both injury claims. The ALJ found that the claimant sought treatment from Dr. Malabre for his right foot injury, but did not seek authorization to change authorized treating physicians. Dr. Malabre referred the claimant to Dr. Hainge. Dr. Hainge recommended an MRI of the claimant's right foot, which the claimant obtained on his own. The ALJ found that Dr. Malabre was not authorized. Consequently, the ALJ concluded that Dr. Malabre, Dr. Hainge and Penrad Imaging were unauthorized to treat either work injury. The claimant brings this appeal.
I.
The claimant first contends that the ALJ erred in failing to acknowledge work restrictions placed on him. We are not persuaded to interfere with the ALJ's order.
To prove entitlement to TTD the claimant must prove the industrial injury caused a "disability." Section 8-42-103(1); PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term "disability," as used in workers' compensation cases, connotes two elements. The first is "medical incapacity" evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant's inability to perform his or her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of "disability" may be evidenced by showing a complete inability to work, or by physical restrictions, which impair the claimant's ability effectively to perform the duties of his or her regular job. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595 (Colo. App. 1998).
Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). We must uphold the ALJ's determination if it is supported by substantial evidence. Section 8-43-301(8), C.R.S. This standard of review requires us to defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
The claimant argues that Dr. Hainge on July 20, 2009 placed him under sedentary work restrictions. The ALJ did find that on July 20, 2009 Dr. Hainge released the claimant to perform sedentary duties and to escalate to light duty. However, the ALJ also noted that Dr. Hainge did not explain this recommendation. The ALJ also made the following findings of fact regarding Dr. Hainge. Dr. Hainge first examined the claimant on May 6, 2009 and recommended well-supported shoes but imposed no restrictions. Exhibit 5 at 1-2. Dr. Hainge reexamined the claimant on June 19, 2009 but again imposed no work restrictions. Exhibit 5 at 3. Dr. Hainge had not imposed any work restrictions until July 20, 2009.
The ALJ then examined all of the other record medical evidence and found that it indicated that the claimant had no work restrictions, although he apparently suffered right foot pain that did not totally disable him. This other medical evidence included the opinions of Dr. Sarin, Dr. Tobey, Dr. Steinmetz and Dr. Zyzda. Dr. Zyzda found no pathology that would prevent the claimant from being active. Exhibit A at 2. Dr. Steinmetz recommended no work restrictions. Exhibit D at 6. The reports from Dr. Sarin do not contain work restrictions. Exhibit 1. The reports from Dr. Tobey contain no work restrictions. Exhibit 2.
In our view, the ALJ's determination that the claimant failed to prove by a preponderance of the evidence that he was temporarily totally disabled commencing May 2, 2009 due to his right foot injury is supported by substantial evidence. We are therefore bound by that determination. Section 8-43-301(8).
II.
The claimant next contends that the ALJ erred in determining that certain physicians were authorized. We are not persuaded that the ALJ committed reversible error.
The respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). "Authorization" refers to the physician's legal status to treat the injury at the respondents' expense. Popke v. Industrial Claim Appeals Office, 797 P.2d 677 (Colo. App. 1997). Under § 8-43-404(5)(a), C.R.S. the employer or insurer is afforded the right in the first instance to select a physician to treat the injury by providing a list of at least two physicians from which list an injured employee may select the physician who attends said injured employee. See Clark v. Avalanche Industries Inc., W. C. No. 4-471-863 (March 12, 2004). An employer is liable for medical expenses when, as part of the normal progression of authorized treatment, an authorized treating physician refers the claimant to other providers for additional services. Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985). If the claimant obtains unauthorized medical treatment, the respondent is not required to pay for it. Section 8-43-404(7), C.R.S; Yeck v. Industrial Claim Appeals Office, supra; Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
However, in order to assert the statutory right to designate a provider in the first instance, the employer has an obligation to name the treating physician forthwith upon receiving notice of the compensable injury. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 545 (Colo. App. 1987). The employer's failure to designate the authorized treating physicians by providing a list of proposed medical providers results in the right of selection passing to the claimant Section 8-43-404(5)(a)(I)(A). The employer's duty is triggered once the employer or insurer has some knowledge of facts that would lead a reasonably conscientious manager to believe the case may involve a claim for compensation. Bunch v. Industrial Claim Appeals Office, 148 P.3d 381 (Colo. App. 2006); Jones v. Adolph Coors Co., 689 P.2d 681 (Colo. App. 1984).
The respondents do not contest liability for the medical benefits connected with Dr. Sarin's or Dr. Tobey's treatment. This liability apparently resulted from the respondents' failure to supply the claimant with a list of possible physicians pursuant to § 8-43-404(5). As we understand the claimant's argument, he contends that because the respondents made no medical referral he was free to choose to be treated by Dr. Hainge and Dr. Malabre even after receiving treatment by Dr. Sarin and Dr. Tobey. He contends this is true even without the respondents' agreement or without requesting a change of physician from Dr. Sarin or Dr. Tobey. The ALJ specifically found that the claimant did not seek authorization to change authorized treating physicians after being treated by Dr. Sarin.
As noted above § 8-43-404 (5)(a)(I)(A) provides that if the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician or chiropractor. However, in our view even if an employer initially waived the right pursuant to § 8-43-404 (5)(a)(I)(A) in the "first instance" to designate the treating physicians, such waiver does not preclude it from having any right to object to or participate in subsequent changes of physician. Miller v. Rescare, W.C. No. 4-761-223 (September 16, 2009), aff'd. Rescare, Inc. v. Industrial Claim Appeals Office, No. 09CA2048 (Colo. App. June 3, 2010) (not selected for publication), see Tournier v. City and County of Denver, W. C. No. 3-892-574, 3-894-603, 3-921-234 (April 30, 1997).
The courts of Colorado have construed procedures for change of physician as applying even if the employer or insurer waived its right to select the initial treating physician. Pickett v. Colorado State Hospital, supra, is illustrative. In Pickett, the claimant was initially treated by a physician of her own choosing. However, she subsequently retained the services of additional physicians without obtaining approval from the insurer or the division. In those circumstances, the court held that the respondents were not liable for the treatment provided by the additional physicians. Relying on the predecessor to § 8-43-404(5)(a), the court stated the following:
The Workmen's Compensation Act does not permit an injured employee to change physicians or to employ additional physicians without notice to his employer or its insurer and consent of the Division of Labor. When an injured employee incurs unauthorized medical expenses, the employer or its insurer is not liable for such expenses. [Citations omitted.] The claimant was properly denied benefits for medical expenses she incurred without proper authorization.
Pickett, 32 Colo. App. at 285, 513 P.2d at 229-30.
It follows that even though it appears uncontested that the right to designate a physician was waived by the respondents that waiver does not vitiate the requirement that subsequent changes of physician be approved in accordance with the detailed procedure for requesting a change of physician after the initial designated physician has been selected contained in § 8-43-404(5)(a)(I)(A). Consequently, in our view, the ALJ did not err in determining that that the treatment by Dr. Malabre, Dr. Hainge, and Penrad Imaging was unauthorized.
A physician's status as "authorized" and, relatedly, whether particular treatment was provided by an authorized physician are generally questions of fact for resolution by the ALJ. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997). Accordingly, as with all factual questions, we must uphold the ALJ's findings concerning these questions if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. Insofar as the evidence is in conflict or subject to contrary inferences, it is the ALJ's sole responsibility to weigh the evidence and resolve those conflicts, and we must defer to the ALJ's determinations. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo. App. 1995).
On the issue of authorization of medical care, the ALJ made the following findings of fact. The claimant was not referred by the respondents to a physician for either his right foot injury or his CTS. The claimant was impliedly authorized to choose his own authorized treating physician. The claimant chose Dr. Sarin, who actively evaluated and treated both conditions. Dr. Sarin referred the claimant to Dr. Tobey, who is also authorized. The claimant subsequently chose to be treated by Dr. Malabre, but did not seek authorization to change authorized treating physicians. Dr. Malabre then referred the claimant to Dr. Hainge. Dr. Hainge subsequently recommended the right foot MRI, which the claimant obtained on his own. In our view, these factual findings are supported by substantial evidence consisting of testimony in the transcript. Tr. 62 70-71 75-79.
The ALJ concluded that all of the treatment by Dr. Malabre, Dr. Hainge, and Penrad Imaging was unauthorized. Here, in our view, the ALJ could reasonably infer from the factual record that the treatment by Dr. Malabre, Dr. Hainge, and Penrad Imaging was unauthorized. Therefore, we are bound by that finding.
IT IS THEREFORE ORDERED that the ALJ's order dated January 28, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
Curt Rriksciun
____________________________________
Thomas Schrant
JIMMIE R PATTON, COLORADO SPRINGS, CO, (Claimant).
ZURICH NORTH AMERICA, Attn: ALLEN HECKER, SCHAUMBERG, IL, (Insurer).
THE KITCH LAW FIRM, Attn: MICHELLE L. PRINCE, ESQ., C/O: THE CENTER AT EVERGREEN, EVERGREEN, CO, (For Respondents).