Opinion
W.C. No. 4-357-814
November 30, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which required them to pay medical expenses incurred by the claimant with Dr. Johnson. We reverse.
On September 16, 1996, the claimant suffered a low back injury when he slipped off a bus step and fell against a door. The injury was treated by Dr. Ogrodnick at the Broadmoor Clinic. The Colorado Compensation Insurance Authority admitted liability for that injury in W.C. No. 4-311-981. On March 5, 1997, Dr. Ogrodnick placed the claimant at maximum medical improvement (MMI) with 5 percent whole person impairment. The claimant resumed his regular employment for the remainder of the school year.
On July 1, 1997, Great States Insurance Company became the insurer on the risk. When the claimant returned to work in August 1997, he noticed a gradual worsening of his back condition. The claimant alleged a new injury and alternatively petitioned to reopen W.C. No. 4-311-981. In October 1997, the claimant sought additional medical treatment. The respondents referred the claimant to the Colorado Center for Occupational Medicine (CCOM), where he was examined by Dr. Hine on October 16, 1997. The ALJ found the claimant reported that he had an exacerbation of his back condition while driving. The ALJ further found that Dr. Hine noted it was "unclear why" the claimant was at the clinic since he had been treating at the Broadmoor Clinic with Dr. Ogrodnick. However, Dr. Hine told the claimant he would have CCOM staff investigate how the case should be treated and that the claimant should call he next morning for clarification about how the case would be treated. The claimant did not call as instructed or return to CCOM for further treatment. Instead, the claimant continued to treat with Dr. Ogrodnick.
On his own, the claimant began treating with Dr. Johnson in January 1999. The respondents denied liability for the treatment.
In the interim, ALJ Corchado entered an order dated August 18, 1999, which determined the claimant's worsened back condition was the result of a new injury in the nature of an occupational disease, and not a natural progression of the 1996 injury. Therefore, ALJ Corchado held the respondents liable for temporary disability and medical benefits awarded on account of the worsened condition. The respondents appealed, and on August 8, 2000, we affirmed ALJ Corchado's order.
Thereafter, the respondents requested the claimant return to CCOM for further evaluation and treatment. The claimant was examined by Dr. Shoemaker at CCOM. Dr. Shoemaker noted that when Dr. Hine examined the claimant in 1997, Dr. Hine had "not really entered into a treatment relationship" with the claimant.
The ALJ found that Dr. Hine "failed" to provide treatment for the claimant's injury. However, expressly relying on Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988), the ALJ also determined Dr. Hine "refused to treat claimant for non- medical reasons and respondents did not provide another authorized physician willing to treat claimant." Under these circumstances, the ALJ determined the right to select a treating physician passed to the claimant, who selected Dr. Johnson to treat the injury. Therefore, the ALJ determined Dr. Johnson is an authorized treating physician and ordered the respondents to pay the medical expenses incurred by the claimant with Dr. Johnson. The respondents timely appealed.
On review, the respondents contend the ALJ erroneously determined Dr. Johnson is an authorized treating physician. We agree.
The applicable law is undisputed. The respondents are liable for all authorized medical treatment which is reasonably necessary to cure or relieve the effects of the industrial injury. Shims 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, and not necessarily for the reasonableness of a particular treatment. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
Under § 8-43-404(5), C.R.S. 2001, 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).
Section 8-43-404(5) implicitly contemplates that the respondents will designate a physician who is willing to provide treatment. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff'd., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication). Therefore, 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, supra; Teledyne Water Pic v. Industrial Claim Appeals Office, supra; Buhrmann v. University of Colorado Health Sciences Center, W.C. No. 4-253-689 (November 4, 1996).
Whether the 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. We must uphold the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2001.
Dr. Hine's medical reports are subject to conflicting inferences. At the time of the examination, Dr. Hine was under the impression the claimant was seeking maintenance treatment for the 1996 injury and therefore, Dr. Hine questioned why the claimant was referred to CCOM instead of returning to Dr. Ogrodnick at the Broadmoor Clinic. Dr. Hine's October 16, 1997, clinic note states:
"I told the [patient] that at this time there was some confusion regarding how his case was to be treated seeing that he had previously been treated for this injury at the Broadmoor Clinic. I asked him to call us in the AM for clarification. I recommended that he would likely benefit from some type of a lumbar support to be used with the school bus seat. I did not impose work restrictions at this time nor did I refer for P.T. or provide meds regarding maintenance of MMI."
Furthermore, on a "Report of Workability" also dated October 16, 1997, Dr. Hine wrote "pending authorization of treatment for maintenance of MMI."
The respondents' arguments notwithstanding, the ALJ reasonably inferred that Dr. Hine's action on October 16, 1997 amounted to a refusal to treat the claimant on that date. Further, the refusal was for non-medical reasons. However, we believe it is questionable whether the Dr. Hine's actions can reasonably be construed as constituting an overall refusal to provide treatment as contemplated by Ruybal v. University Health Sciences Center, supra.
In any event, we have previously held that, in cases were the designated treating physician refuses to treat the claimant for non-medical reasons, the respondents' duty to select a replacement physician arises immediately upon knowledge that the designated physician has refused to treat. Tellez v. Wal-Mart Stores Inc., W.C. No. 4-413-780 (July 20, 2000) ; Wesley v. King Soopers, W.C. No. 3-883-959 (November 22, 1999).
Here, there is no finding that the respondents knew Dr. Hine had "refused" to treat the injury. Furthermore, the claimant does not contend he ever requested further treatment from Dr. Hine or told the respondents that he believed Dr. Hine had refused to treat the injury. Neither does the claimant assert he ever requested the respondents to designate another physician. Under these circumstances, the record is legally insufficient to support a finding that the respondents' duty to designate a new physician was ever triggered. Consequently, we conclude the right of selection did not pass to the claimant, and Dr. Johnson is not authorized. Therefore, the ALJ erred in holding the respondents liable for the medical bills incurred by the claimant with Dr. Johnson.
In view of our disposition, we do not consider the respondents' remaining arguments in support of the petition to review. However, we note that Dr. Ogrodnick related the claimant's worsened condition to the 1996 injury and only determined MMI for the 1996 injury. Consequently, Dr. Ogrodnick's determination of MMI does not compel the conclusion that the disputed treatment was provided after the claimant reached MMI for the subject injury.
Furthermore, the respondents may not assert one position before the ALJ and another position on appeal. Consequently, we do not consider the respondents' contention that as a matter of law ALJ Corchado's order determined the claimant selected Dr. Ogrodnick to treat the injury. ( See Tr. p. 40).
IT IS THEREFORE ORDERED that the ALJ's order dated April 19, 2001, is reversed insofar as it required the respondents to pay medical benefits for treatment provided by Dr. Johnson.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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. 1999. 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 30, 2001 to the following parties:
Earnest Clemons, 1315 Richards Ave., Colorado Springs, CO 80906
Harrison School District No. 2, 1060 Harrison Rd., Colorado Springs, CO 80906-3543
Great States Insurance Company, c/o Linda Stithem, Western Guarantee Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80202
John V. FitzSimons, Esq., P. O. Box 2940, Colorado Springs, CO 80903 (For Claimant)
Patricia Jean Clisham, Esq. and Keith E. Mottram, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: A. Pendroy