Opinion
W.C. No. 4-315-053
October 14, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which determined that the claimant suffered compensable injuries and awarded benefits. We modify the award, and as modified, affirm the ALJ's order.
From conflicting evidence the ALJ found that the claimant sustained disabling injuries to his back and right lower extremity from heavy lifting and strenuous work-related activities between July 29 and August 2, 1996. Furthermore, the ALJ found that the claimant reported the injuries to the employer, but the employer failed to tender the services of a physician. Consequently, the ALJ found that Dr. Seybold, the physician selected by the claimant, is authorized to treat the injuries, and ordered the respondents to pay for the treatment by Dr. Seybold and his referrals. The ALJ also awarded the claimant temporary total disability benefits.
I.
On appeal, the respondents challenge the credibility of the claimant's testimony, and argue that the only "credible" evidence indicates that the claimant's injuries were caused during a 300-mile driving trip on August 3, 1996, which was unrelated to his work. In support, the respondents rely on the Air Force Academy Hospital emergency room report dated August 4, 1996, which contains a history reflecting the onset of back pain following a 300-mile road trip the day before. Consequently, the respondents contend that the claimant failed to sustain his burden to prove a compensable injury. We disagree.
To establish a compensable injury, the claimant must prove that his injuries "arose out of and in the course of" his employment. Section 8-41-301 C.R.S. 1997; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). This requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relationship and during an activity that had some connection with the employee's job-related functions. Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991).
Whether the claimant has sustained his burden of proof is a question of fact for resolution by the ALJ. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Therefore, we are bound by the ALJ's factual determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1997; Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Application of the substantial evidence test also requires that we defer to the ALJ's credibility determinations and her resolution of conflicts in the evidence. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Here, the evidence is susceptible of conflicting inferences concerning the cause of the claimant's injuries. The ALJ resolved the conflict by crediting the claimant's testimony.
The claimant stated that the hospital emergency room did not take a thorough history of his injuries. Contrary the emergency room report, the claimant testified that he experienced the onset of pain following repetitive lifting and moving activities at work between July 29 and August 2, 1996. He also stated that even though he was experiencing low back pain from the injuries on the morning of August 3, 1996, he went on a road trip with his family. However, he testified that he did not engage in any strenuous physical activities during the trip.
The claimant's testimony was buttressed by the testimony of his wife and son, and the equipment rental slips received as Claimant's Exhibits A and B. Further, the claimant's testimony is consistent with history contained in the medical reports of Dr. Seybold dated August 15, 1996, and Dr. Murk dated September 12, 1996. Therefore, we have no basis for concluding that the ALJ erred in crediting the claimant's testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (ALJ credibility determinations binding unless the credited testimony is rebutted by such hard, certain evidence that it would be an error as a matter of law to believe the testimony).
Moreover, the evidence the ALJ found credible constitutes substantial evidence supporting the ALJ's compensability determination. Accordingly, the fact that the record contains some evidence, which if credited, might support the inferences sought by the respondents does not afford us grounds to interfere with the ALJ's finding that the claimant sustained his burden to prove that his injuries arose out of and in the course of his employment. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
II.
The respondents also contend that the ALJ erroneously ordered them to pay for the treatment by Dr. Seybold and his referrals. We disagree.
As argued by the respondents, § 8-43-404(5), C.R.S. 1997, affords them a statutory right to select the authorized treating physician. Specifically, § 8-43-404(5)(a) provides that:
"the employer or insurer has the right in the first instance to select the physician who attends said injured employee. 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."
An employer has a duty to tender treatment as soon as "knowledge of the injury first comes to its attention." Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). The employer has sufficient information to trigger its duty to tender medical treatment when the employer has:
"some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim."
Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984). In this regard, oral notice is sufficient to trigger the employer's duty to designate a provider. 689 P.2d at 684.
Here, the ALJ found that the claimant reported his work-related injury to his employment supervisor, Mr. Pickrell, on August 15, 1996. (Finding of Fact 16). Further, the ALJ found that Mr. Pickrell did not tender the services of a physician at that time. Instead, Mr. Pickrell denied the work-relatedness of the injuries.
The ALJ's findings are supported by the testimony of the claimant and the claimant's son. Thus, we have no basis for disturbing them on review. Moreover, the findings support the conclusion that the respondents failed to tender the services of a physician at the time of the injury. Therefore, the ALJ did not err in concluding that the right of selection passed to the claimant, who selected Dr. Seybold.
However, the respondents argue they were not required to refer the claimant to a physician on August 15, 1996, because the claimant signed a form acknowledging the employer's predesignation of "Readicare" as the authorized provider. Again, we disagree.
It is true that in some cases a general notification of the authorized provider by use of a signed form or by written notice posted at the employer's premises may be sufficient to establish that the employer has tendered the services of a physician "at the time of the injury." See Broadmoor Hotel v. Industrial Claim Appeals Office (Colo.App. No. 92CA1635, May 27, 1993) (not selected for publication). The question of whether the employer's predesignation is sufficient is dependent on the particular circumstances of the case. Broadmoor Hotel v. Industrial Claim Appeals Office, supra. In Broadmoor, the court upheld an ALJ's determination that the employer failed to tender the services of a physician, where the injured worker did not recall signing the predesignation document or seeing a posted notice at the employer's premises, and the employer did not refer the injured worker to the predesignated provider upon notice of the injured worker's industrial injury.
Admittedly, the record contains evidence that the claimant signed a Fireman's Fund "Workers' Compensation Employee Notice" form on December 28, 1994, which instructed injured employees to seek treatment at the "closest designated provider location" listed on the reverse side of the form. (Claimant's Exhibit D). Further, the claimant admitted that the designated provider was Readicare. (Tr. p. 32). However, he stated that subsequent to December 28, 1994, the respondents changed workers' compensation carriers from Fireman's Fund to Business Insurance Company and a new form was then issued. (Tr. pp. 33).
Under these circumstances, the ALJ found that it was unclear whether the change of insurers affected the respondents' prior designation of Readicare. (Discussion and Conclusions of Law 5). Consequently, the ALJ implicitly determined that the December 28, 1994 predesignation was not a sufficient tender of medical services on August 15, 1996.
Moreover, the ALJ found that the claimant kept Mr. Pickrell informed of his medical condition, and the names of the doctors who were treating his injuries. However, the ALJ found that "at no time" did Mr. Pickrell object to the claimant's treatment with Dr. Seybold or refer the claimant to a different physician. (Finding of Fact 30). There is substantial evidence to support these findings, and they support the ALJ's inference that the respondents impliedly conveyed an impression to the claimant that he was authorized to select the treating physician, and acquiesced to the claimant's treatment with Dr. Seybold. See Brickel v. Business Machines, Inc., 817 P.2d 536 (Colo.App. 1990); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
To the extent that the respondents have other arguments, they have been considered and do not alter our conclusions. Therefore, the ALJ did not err in ordering the respondents to pay for the treatment by Dr. Seybold and his referrals.
Nevertheless, the respondents contend that they are not liable for any treatment before August 15, 1996, the date the ALJ found that the claimant reported his industrial injuries. The claimant concedes this argument. Therefore, we modify the ALJ's order accordingly.
IT IS THEREFORE ORDERED that the ALJ's order dated February 26, 1997, is modified to require the respondents to pay for all medical expenses incurred by the claimant on or after August 15, 1996, for reasonable and necessary treatment of his industrial injuries, including but not limited to treatment from Dr. Seybold, Mountain Neurosurgical Associations, Dr. Murk, Dr. Murphy, Penrose-St. Francis Healthcare System and treatment associated with lumbar epidural injections.
IT IS FURTHER ORDERED that as specifically modified above, the ALJ's order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Kathy E. Dean
___________________________________ Bill WhitacreNOTICE 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed October 14, 1997 to the following parties:
Towomi J. Shoblo, 1210 Moffat Circle, Colorado Springs, CO 80915
TP Enterprises, Inc., P.O. Box 441041, Aurora, CO 80044
LMC Resources Inc., 650 S. Cherry St., Ste. 1110, Glendale, CO 80222
Business Insurance Co., P.O. Box 101630, 2000 S. Colorado Blvd., Denver, CO 80250
Paul H. Haller, Esq., P.O. Box 636, Colorado Springs, CO 80901 (For the Claimant)
James R. Clifton, Esq. Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., Ste. 400 Denver, CO 80227 (For the Respondents)
BY: _______________________