Opinion
W.C. No. 4-487-513
January 14, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant failed to prove she was injured in the "quasi-course of employment" and, therefore, denied and dismissed the claim for workers' compensation benefits. We affirm.
In 1995, the claimant suffered a compensable low back injury which was treated conservatively by Dr. Parker and Dr. Meinig. On August 9, 1996 Dr. Meinig placed the claimant at maximum medical improvement (MMI). On November 4, 1996, Dr. Parker agreed with Dr. Meinig's finding of MMI and released the claimant from treatment. The claim was subsequently closed by the respondent's filing of an uncontested final Admission of Liability for the payment of permanent partial disability benefits consistent with Dr. Meinig's medical impairment rating.
In the summer of 1998 the claimant began treating with her personal physician, Dr. Bloom, for complaints of low back and leg pain. Dr. Bloom referred the claimant to Dr. Phelps, who in turn, referred her to Dr. Murphy. In March 1999 the claimant underwent back surgery by Dr. Murphy. While driving home from a follow-up appointment with Dr. Murphy on March 27, 1999, the claimant suffered injuries in a motor vehicle accident. The March 27 injuries are the subject of this claim.
The ALJ rejected the claimant's contention that Dr. Parker referred her to Dr. Bloom for treatment of the 1995 injury. Under these circumstances, the ALJ determined the claimant was not returning from authorized medical treatment at the time of the motor vehicle accident. Therefore, the ALJ found the March 27 injuries were not compensable under the "quasi-course of employment" doctrine.
I.
On review the claimant contends the ALJ erred in finding Dr. Murphy is not an authorized treating physician. We perceive no error.
"Authorization" refers to the physician's legal status to treat the injury at the respondent's expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). A physician who commences treatment upon a referral made in the "normal progression of authorized treatment" becomes an authorized treating physician. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
The determination of whether there has been a referral in the "normal progression of authorized treatment" is a question of fact for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). We are bound by the ALJ's determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-4-301(8), C.R.S. 2001; Suetrack USA v. Industrial Claim Appeals Office, supra; Smith v. Aspen Skiing Company, W.C. No. 3-071-413, (December 21, 1993).
The claimant testified that when Dr. Parker placed her at MMI he did not make any follow-up appointments or say anything about follow-up care. However, she added that Dr. Parker told her to see her personal physician if she had any "flare-ups." (Tr. pp. 27, 44, 54).
Neither Dr. Meinig's medical records nor Dr. Parker's medical records contain a referral to Dr. Bloom. Dr. Meinig's clinic note dated August 9, 1996, stated "return p.r.n. worsening symptoms." Dr. Meinig's note dated November 28, 1996, instructed the claimant to follow up "in this clinic as needed for her symptoms." Similarly, Dr. Parker's last clinic note dated November 4, 1996, released the claimant from treatment with instructions to: "RTC only on an occasional basis and for expected flare-ups for medical management of pain." Further, the claimant does not cite any medical report from Dr. Bloom which tends to suggests he began treating the claimant on a referral from Dr. Parker. Accordingly, there is substantial evidence in the record from which the ALJ reasonably inferred that Dr. Parker did not refer the claimant to Dr. Bloom for additional treatment of the industrial injury and this finding supports the conclusion that Dr. Murphy is not an authorized treating physician. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998) (ALJ's plausible inferences binding on review); Greager v. Industrial Commission, supra.
II.
Alternatively, the claimant contends the motor vehicle injuries are compensable under the "quasi-course of employment" doctrine regardless of whether Dr. Murphy is an authorized provider. The claimant argues that the pertinent issue is whether the claimant was injured in the course of obtaining treatment to cure or relieve the effects of the original industrial injury. We disagree.
The "quasi-course of employment" doctrine provides that injuries which occur in the course of obtaining medical treatment for an industrial injury are compensable. 1 A. Larson, Workers' Compensation Law § 10.07 (2001). The rationale for the doctrine is that the employer is legally required to provide medical treatment to the injured employee, and the employee is legally required to submit to the treatment. Consequently, travel to and from authorized treatment is an implied condition of the employment contract and the risks of the travel become risks of the employment. Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993); Fischer-Muck v. Interim Healthcare of Southeastern Colorado, W.C. No. 4-113-829 (January 31, 2000); Ferrenburg v. Best Western Landmark Hotel, W.C. No. 4-357-688 et. al., (December 22, 2000).
In Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993), the court held that injuries sustained during an automobile accident while obtaining unauthorized medical treatment were not compensable under the "quasi-course of employment" doctrine. The court reasoned that in the absence of evidence that the treatment was authorized, the claimant's travel was not an "implied condition or expectation of the claimant's employment." 888 P.2d at 278; see also Kroupa v. Mercy Medical Center, W.C. No. 3-113-588 (January 7, 2002). Therefore, the injuries during travel to and from the treatment could not have been the proximate result of the original injury.
The claimant contends that Schreiber v. Brown Root, Inc., supra, was overruled by the court's subsequent decision in Employers Fire Insurance Company v. Lumbermen's Mutual Casualty Company, 964 P.2d 591 (Colo.App. 1998). Again, we disagree.
The primary focus of Employers was the distinction between injuries which result from a "weakened condition" caused by the original industrial injury, and injuries sustained while going to or coming from authorized medical treatment. The court concluded that if additional injuries result from a "weakened condition" stemming from the original industrial injury, the additional injuries are compensable because they are a natural, albeit not necessarily direct, result of the original injury. In contrast, injuries sustained when a claimant is traveling to or from authorized treatment are compensable not because they were "caused" by the prior industrial injury, but because the law required the employer to furnish medical services to the injured employee. Further, the court concluded that injuries while traveling to the office of an authorized physician would provide "the basis for a second claim." Consequently, the Employers court held that where the legal "cause" of the second injury is the employer's duty to provide medical treatment, the second injury is a separate compensable injury and not a compensable component of the original industrial injury.
However, Employers did not purport to consider or alter the principle that quasi-course of employment injuries while traveling to and from medical treatment are limited to travel to and from "authorized" treatment. Consequently, we are not persuaded Employers overruled the pertinent principle established in Schreiber.
Here, as in Schreiber, the ALJ determined the claimant was not returning from authorized medical treatment at the time of the March injuries. Consequently, as a matter of law the proximate cause of the injuries was not an implied condition of the employment contract stemming from the 1995 injury. Therefore, the ALJ did not err in finding that the claimant failed to prove the injuries are compensable under the "quasi-course of employment" doctrine.
The claimant's remaining arguments have been considered and do not alter our conclusions. We do not dispute that the claimant is free to seek treatment for the industrial injury at her own expense. However, we reject the claimant's contention that there is no risk of doing so. The claimant's failure to submit to medical treatment selected by the employer may result in the denial of temporary disability benefits. Section 8-43-404(3), C.R.S. 2001.
Further, under the current state of the law, "authorization" establishes the line of demarcation between compensable and non-compensable injuries during travel to medical treatment. Thus, even if we assumed the claimant was injured while returning from treatment with Dr. Murphy which was reasonable and necessary to treat the original injury, the result would be unchanged.
More importantly, where the claimant selects the provider, and thus, the employer has no input into the time, place and circumstances of the medical treatment, the claimant's travel to obtain such treatment is not adjunct to the terms of the employment out of which the original injury occurred. Accordingly, there is a logical basis to distinguish between injuries which occur during travel to or from "authorized" treatment and travel to obtain "unauthorized" treatment, regardless of whether the treatment is reasonable and necessary to cure or relieve the effects of the original industrial injury. Insofar as the claimant contends that the current state of the law violates equal protection guarantees under the United States Constitution, we have no authority to consider the claimant's argument. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated June 19, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. SocolofskyNOTICE
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. 2001. 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 January 14, 2002 to the following parties:
Barbara Fournier, 5102 Galley Rd., #410-AW, Colorado Springs, CO 80915
Jennifer Westbrook, El Paso School District No. 11, 1115 N. El Paso, Colorado Springs, CO 80903
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Gregory B. Cairns, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondent)
BY: A. Pendroy