Opinion
W.C. No. 4-697-010.
July 5, 2007.
FINAL ORDER
The respondents seek review of a supplemental order of Administrative Law Judge Friend (ALJ) dated March 12, 2007, that determined the claim was compensable and found the insurer liable for the cost of certain medical care. We affirm the order in part and reverse in part.
The ALJ's pertinent findings of fact are as follows. On August 15, 2006, the claimant injured his finger while training with a nail gun. The clamant felt the injury was not significant and continued to work. On August 18, 2006 his finger was swollen and he went to the emergency room at Littleton Adventist Hospital without reporting an accident or need for medical treatment to the employer. The employer referred the claimant to Concentra for medical care. The claimant contacted Concentra for an appointment and was told that they did not have a claim number. The claimant called the insurer who referred the claimant to the Division of Workers' Compensation. Concentra refused to treat the claimant for a non-medical reason and the insurer was aware of the refusal and did not refer the claimant to a medical care provider who was willing and able to treat the claimant. The ALJ concluded that the claim was compensable and the treatment at Littleton Adventist Hospital was emergency treatment, and therefore the insurer was liable for the cost of that treatment. The claimant was free to select his own treating physician because the insurer had not referred the claimant to a medical care provider who was willing to treat the claimant. The claimant sought treatment from Dr. Mordick and Dr. Kearns and the ALJ found the insurer liable for such treatment. We note that at times the parties used name Concentra interchangeably with the name Centura.
On appeal the respondents first contend that it was reversible error for the ALJ to find that the treatment at the Littleton Adventist Hospital was emergency treatment and so the liability of the insurer.
In Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990), the court held that in cases of medical emergency the claimant need not seek authorization from the employer or insurer before obtaining medical treatment from an unauthorized provider. The question of whether a bona fide emergency exists is one of fact and is dependent on the circumstances of the particular case. Timko v. Cub Foods W. C. No. 3-969-031 (June 29, 2005). Therefore, as with all factual questions, we must uphold the ALJ's resolution of this issue if it is supported by substantial evidence. § 8-43-301(8), C.R.S. 2006.
The ALJ recognized that the claimant did not think it was an emergency when he went to the emergency room. Tr. 18. However, we note that the record contains evidence that a "vet tech" noticed the claimant's finger at a job interview and advised him to seek medical treatment at an emergency room. Tr. at 12, 14. Moreover, the ALJ found that the diagnosis was of a potentially serious infection and that intravenous antibiotics were administered. In this regard the claimant testified that the providers at the emergency room administered three intravenous treatments, took x-rays, and that "the wound was opened and cleaned." Tr. at 16. The claimant then obtained treatment from Dr. Mordick, who prescribed antibiotics, splinted the finger, and then provided further treatment when the wound failed to heal. Tr. at 16. The claimant further testified that the laboratory determined that he had a "staph" infection. Tr. at 16. Although originally he went to the emergency room because his finger was swollen, he was "concerned," and he was advised to seek immediate treatment, when he arrived, the "medical people" examined his finger and "noticed something was wrong." Tr. at 23. Given this factual record, the ALJ found that the treatment he received at the emergency room was a limb threatening emergency. The employer has a policy that in the event of a life threatening or limb threatening emergency, the insured employee will be sent to the nearest emergency medical facility. Exhibit B. An emergency exception is not necessarily limited to situations where life is threatened. Bunch v. Industrial Claim Appeals Office of State of Colorado, 148 P.3d 381 (Colo.App. 2006). In our view the ALJ's findings that the claimant's condition required prompt attention and that the medical treatment at the hospital was emergent in nature are plausible inferences from the factual record. Under these circumstances we are not persuaded to interfere with the ALJ's finding that there was a medical emergency and that the treatment was emergency treatment.
The respondents next contend that there was not substantial evidence to support the ALJ's determination that the insurer was advised of a refusal by Concentra to treat the claimant. On this issue the ALJ entered the following conclusion:
Following the emergency treatment, claimant reported the injury to Employer and was referred to Concentra for treatment. Concentra refused to treat Claimant because no claim had been filed, a non-medical reason. Claimant contacted Insurer, who referred Claimant to the Division of Workers' Compensation, and not to a medical provider who was willing to treat Claimant. Claimant was free to select his own treating physician.
Conclusions of Law at 4, § 6.
Section 8-43-404 (5) C.R.S. 2006, implicitly contemplates that the respondent 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 respondent refuses to treat the claimant for non-medical reasons, and the respondent fails 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); Ragan v Dominion Services, Inc., W.C. No. 4-127-475, (September 3, 1993).
Whether the authorized treating physician refused to treat the claimant for non-medical reasons, whether the claimant notified the respondent of his request for treatment prior to his selection of a treating physician, and whether the respondent designated a physician who was willing to treat the condition are questions of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra; See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000); Medina v. La Jara Potato Growers, W.C. No. 4-128-326 (June 1, 1998).
Here, we agree with the respondent that the record does not contain substantial evidence to support the ALJ's finding that the insurer was aware of the refusal by Concentra to treat the claimant for a non-medical reason. The only evidence the claimant points us to on this issue and the only evidence we have discovered is as follows:
Q All right. And did you contact Centura?
A Yes ma'am, I did. They asked for a claim number. I told them I did not have one. They said that there was supposed to be one filed with the company. They called — told me to call Pinnacol Assurance. The same response. They asked for an injury report number. Told me — and I told them I didn't have one. They automatically gave me to work — or the labor board, workmen's comp. The same response. The woman told me that even though the fact that I said I was fine, and I'm going by what everyone has told me, under the law that they were supposed to file a claim. The woman at comp sent me the paperwork and I filed it. She sent it to me. I received it several days later and I filed it immediately and sent it back to them.
From this testimony the claimant contends that the ALJ could reasonably infer notice to Pinnacol of Concentra's failure to treat. We agree that the ALJ could accept this testimony as evidence that the insurer was on notice that there was a claim. However, even if we assume, without deciding, the request of Concentra for the claim number constitutes a refusal to treat, in our opinion this limited testimony would not permit an inference that the insurer was given notice that Concentra had refused to treat the claimant for a non-medical reason. Even when viewed in the light most favorable to the claimant, the record does not contain substantial evidence from which the ALJ could reasonably infer that at the relevant time the claimant told the insurer anything about medical treatment and certainly not that Concentra had refused to treat for a non-medical reason. The evidence, as a matter of law is insufficient to remove the question of whether the insurer had knowledge of Concentra's refusal to treat for non-medical reasons from the realm of conjecture and mere possibilities. Given this record, we do not view it as a reasonable inference from the record that the insurer had notice that Concentra refused to treat the claimant for non-medical reasons. Indeed, the most that can be inferred from the claimant's limited testimony is that he telephoned the insurer seeking information about obtaining a claim number, and that he was referred to the Division. In our opinion, this exchange did not provide to the insurer a reasonable opportunity to evaluate the authorized treating physician's "refusal" to treat the claimant and to designate another provider instead. Consequently the award of the ALJ cannot be upheld. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951).
Because the record contains no evidence supporting the ALJ's finding that the insurer had notice of the refusal to treat, it was error to conclude that the right of selection passed to the claimant. Further, since the insurer's failure to designate another physician was the basis of the ALJ's conclusion that the right of selection passed to the claimant, the error cannot be viewed as harmless. Conclusions of Law § 4 § 6 at 4. Because there is no evidence that the insurer was given notice that Concentra had refused to treat the claimant for a non-medical reason, the insurer's obligation to appoint a new treating physician did not arise and the right of selection did not pass to the claimant. 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); Ragan v Dominion Services, Inc., supra.
Consequently, the ALJ erred in finding that the insurer was liable for the costs of the care the claimant received from Dr. Mordick and Dr. Kearns. Therefore, the ALJ's award of medical benefits from Dr. Mordick and Dr. Kearns must be reversed. In view of our disposition we do not consider the respondents' further arguments.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated March 12, 2007, is reversed insofar as it ordered that the insurer is liable for the cost of the medical care that the claimant received from Dr. Mordick and Dr. Kearns.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
Scott D. Drumm, CO, Benchmark Sales Agency d/b/a Custom Windows Becky Richards, CO, Pinnacol Assurance Harvey D. Flewelling, Esq., CO, Ewing Ewing, PC Mary Ewing, Esq., CO, (For Claimant).
Ruegsegger, Simons, Smith Stern LLC Ryan McManis, Esq., Denver, CO, (For Respondents).