Opinion
W.C. No. 4-421-960
September 18, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which found the claimant suffered a compensable injury from the aggravation of a pre-existing back condition and awarded workers' compensation benefits. The claimant contends the ALJ erred in finding that Dr. Mitchell and his referrals are not authorized treating physicians. We affirm.
The relevant facts are undisputed. On May 20, 1999, the claimant notified the employer he needed medical treatment for back pain. The employer did not refer the claimant to a medical provider. Consequently, the claimant sought emergency treatment at the Memorial Hospital. On June 8, 1999, the claimant was examined by his personal physician, Dr. Farag. Dr. Farag diagnosed a musculoskeletal strain, prescribed medications, released the claimant from work, and instructed the claimant to return for further treatment on June 16. The claimant obtained additional treatment from Dr. Farag on June 16. On July 20, 1999, the claimant was examined by Dr. Mitchell who recommended physical therapy and anti-inflammatory medications.
The ALJ found the claimant obtained compensable emergency treatment at the Memorial Hospital. The ALJ also found the employer failed to designate a physician for non-emergency treatment and, therefore, the ALJ determined the right to select a treating physical passed to the claimant who "chose" Dr. Farag. Further, the ALJ found the claimant was not free to change physicians to Dr. Mitchell, and Dr. Mitchell was not authorized in the normal chain of referrals. Consequently, the ALJ determined Dr. Mitchell and providers to whom he referred the claimant are not authorized.
On appeal, the claimant contends the ALJ misapplied the law in failing to find he selected Dr. Mitchell to provide non-emergency treatment of the industrial injury. The claimant contends he selected Dr. Mitchell and that Dr. Farag provided "interim" treatment until his first appointment with Dr. Mitchell. The claimant also contends that Dr. Farag's unauthorized treatment did not "deauthorize" Dr. Mitchell as the physician selected to treat the industrial injury. We reject these arguments.
Section 8-43-404(5)(a), C.R.S. 2000 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."
Once the right of selection is exercised the claimant may not change physicians without permission from the insurer or the ALJ. Yeck v. Industrial Claim Appeals Office, 966 P.2d 228 (Colo.App. 1999).
In this case, it is undisputed the employer failed to exercise its right to select the treating physician. Consequently, the right of selection passed to the claimant. The disputed issue is the identity of the physician "selected" by the claimant.
The rules of statutory construction require that statutes to be construed to give effect to the legislative intent. Industrial Claim Appeals Office v. Orth, 965 P.2d 1246 (Colo 1998). To discern the legislative intent we must look to the specific language of the statute and give words their plain and ordinary meanings. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993) ; Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). If the statutory language is clear, the statute must be enforced as written and it is unnecessary to resort to the rules of statutory construction. Kinder v. Industrial Claim Appeals Office, 976 P.2d 295 (Colo.App. 1999).
The term "select" is unambiguous. Webster's New College Dictionary (1995) defines the term "select" as referring to the act of making a choice or picking out a preference from among several possible alternatives. Thus, in the context of § 8-43-404(5), the claimant "selects" a physician when he demonstrates by words or conduct that he has chosen a physician to treat the industrial injury.
The courts have also held that the claimant does not "fully exercise" the right of selection unless the chosen physician is willing to treat the industrial injury. Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988). In Ruybal, the selected physician refused to treat for non-medical reasons, but referred the claimant to a particular psychologist for evaluation. The court held that the claimant's right of selection was incomplete until the claimant chose a psychologist for the evaluation.
Here, the claimant testified that after the initial emergency treatment he tried to see Dr. McCarthy. He stated that Dr. McCarthy refused to treat him without money or insurance coverage, and therefore, he "had to go to" his personal physician. (Tr. p. 76). He also stated that he tried to see Dr. Mitchell but didn't see him because "it took too long." (Tr. p. 75). It is undisputed the claimant finally saw Dr. Mitchell on July 20, 1999. However, the claimant did not present evidence concerning when he scheduled the July 20 appointment with Dr. Mitchell, nor did he offer other evidence demonstrating words or conduct indicating when he "chose" Dr. Mitchell.
Under these circumstances, the record did not compel the ALJ to find the claimant selected Dr. Mitchell to treat the injury. To the contrary, the evidence also supports an inference the claimant considered treating with Dr. Mitchell but, because he was not immediately available, selected Dr. Farag until he could change physicians to Dr. Mitchell. Under these circumstances, the record supports the ALJ's finding the claimant exercised his right of selection by commencing treatment with Dr. Farag, not Dr. Mitchell, and this finding supports the ALJ's order denying medical benefits for the treatment by Dr. Mitchell and his referrals. Section 8-43-301(8), C.R.S. 2000 (Panel must uphold findings supported by substantial evidence); Yeck v. Industrial Claim Appeals Office, supra.
The claimant argues that making an appointment with the chosen physician is sufficient to establish the selection of a physician. In support, the claimant relies on Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). The issue in Rogers was whether the employer could exercise its right of selection where it did not tender medical treatment upon notice of the injury, but offered medical services prior to the claimant's first appointment with the physician she selected. The court held the right of selection passed to the claimant when the employer did not tender the services of a physician on notice of the injury, and that the employer could not "recapture" that right. However, the court was not required to determine when the claimant's selection was complete and thus , Rogers is not dispositive of the issue presented here.
In any case, Rogers is factually distinguishable. In Rogers, the record contains evidence the claimant contacted a physician of her choice and arranged an appointment. She also advised the employer of the appointment with the chosen physician. Thus, unlike the circumstances, presented here, the Rogers record contained substantial evidence that the claimant picked one particular doctor to treat the injury.
Finally, we reject the claimant's contention Dr. Mitchell became an authorized treating physician "as of Claimant's first emergency room visit." Dr. Jamison referred the claimant to Dr. McCarthy. (May 20, 1999 Emergency Department Report). Further, the Emergency Department Note dated July 5, 1999, reflects that Dr. Strom referred the claimant to Dr. Farag for follow-up treatment. Consequently, the record is susceptible of conflicting inferences.
IT IS THEREFORE ORDERED that the ALJ's order dated December 21, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 September 18, 2000 to the following parties:
Anthony R. Squitieri, 3760 Knoll Ln., Apt. 37, Colorado Springs, CO 80917-8560
Tayco Screen Printing, Inc., 25 W. Las Vegas St., Colorado Springs, CO 80903-4217
Mid-Century Insurance Company, Tamarac II, 7535 E. Hampden Ave., #200, Denver, CO 80231
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Christian M. Lind, Esq., Orchard Place II — Suite 106, 5975 Greenwood Plaza Blvd., Greenwood Village, CO 80111 (For Respondents)
BY: A. Pendroy