Opinion
W.C. No. 4-761-223.
September 16, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) dated April 14, 2009, that found the right of selection of a medical provider had passed to the claimant and awarded certain benefits. We modify in part and otherwise affirm the order.
The claimant suffered a compensable injury on May 7, 2008. The ALJ determined that the right of selection of a medical provider passed to the claimant and she selected Karen Cain, D.C. The ALJ found that Dr. Cain is an authorized medical provider on two separate grounds. The ALJ first found that the respondents did not provide the claimant with two legitimate choices as required under W.C. Rule of Procedure 8-2, 7 Code Colo. Reg. 1101-3 (2009) and therefore the right to select an authorized treating physician (ATP) passed to the claimant. The ALJ also found that the right to select an ATP passed to the claimant because of refusal of designated physicians to treat for non-medical reasons.
The ALJ concluded that Dr. Cain was an authorized treating medical provider. The ALJ ordered the respondents to pay all of the costs for authorized treatment of the claimant's compensable injury, subject to the Division of Workers' Compensation Medical Fee Schedule. The respondents on appeal contend that applicable law and substantial evidence do not support the ALJ's order.
I.
The respondents first contend that the ALJ erred in determining that Dr. Cain was an authorized treating medical provider. The ALJ determined that there were alternative grounds for determining that Dr. Cain was authorized. The ALJ first found that Dr. Cain was authorized because the employer, when it received knowledge of the claimant's work-related claim, only furnished the claimant with one viable medical provider. Therefore, the ALJ determined that the right of selection passed to the claimant and she selected Dr. Cain.
The ALJ made the following relevant findings of fact on this issue. On May 23, 2008, the claimant called her supervisor and stated she had suffered a work-related injury. Subsequently, the claimant received a letter directing her to two facilities for treatment. Those two medical care providers were Dr. Ephraim and Concentra. The claimant initially attempted to schedule an appointment with Dr. Ephraim, but could not reach the doctor despite repeated attempts. The claimant had no choice but to seek medical care at the other listed option, which was Concentra. The claimant went to a Concentra facility and saw Dr. Rossi. Dr. Rossi diagnosed the claimant with a neck sprain and recommended a course of physical therapy. The claimant expressed concern to Dr. Rossi regarding his decision not to order any diagnostic imagining prior to recommending physical therapy because she was worried that the industrial accident might have disturbed fusion hardware in her back from prior treatment not related to the industrial accident. The claimant on a follow-up visit again expressed her concerns to Dr. Rossi who eventually told her that he did not wish to provide her further treatment and that she should get her care at another Concentra facility. After the follow-up visit with Dr. Rossi, the claimant contacted the insurer to receive directions as to where to receive treatment. She was directed to Dr. Andrick and the claimant saw him on the following day. Dr. Andrick diagnosed the claimant with severe cervical strain and recommended that she be evaluated by a neurosurgeon. Dr. Andrick directed the claimant to follow up with the workers' compensation carrier regarding further care. The workers' compensation carrier did not follow up on this recommendation, and since the June 18, 2008 visit with Dr. Andrick the workers' compensation carrier has not authorized further treatment.
A.
The ALJ's first basis for determining that Dr. Cain was authorized was that the respondents did not provide the claimant with two legitimate choices as required under Rule of Procedure 8-2, 7 Code Colo. Reg. 1101-3 (2009). The ALJ found that when the claimant contacted the employer regarding the unavailability of Dr. Ephraim, instead of remedying the situation and providing the claimant with an additional alternative to Concentra the employer simply insisted that if the claimant wanted to receive authorized treatment she had no choice but to go to a Concentra facility. Therefore, the ALJ determined that the right to select an ATP passed to the claimant pursuant to Rule of Procedure 8-2(d) and the claimant designated Dr. Cain as her ATP.
W.C. Rule of Procedure 8-2 deals with initial medical referrals and provides as follows:
(A) When an employer has notice of an on the job injury, the employer or insurer shall provide the injured worker with a written list in compliance with § 8-43-404(5)(a)(I)(A), that for purposes of this Rule 8 will be referred to as the designated provider list, from which the injured worker may select a physician or corporate medical provider.
Section 8-43-404 (5) (a) (I) (A) C.R.S. 2009, provides: "In all cases of injury, the employer or insurer shall provide a list of at least two physicians or two corporate medical providers or at least one physician and one corporate medical provider, where available, in the first instance, from which list an injured employee may select the physician who attends said injured employee." Here the ALJ reasoned that the right to select an ATP had passed to the claimant because the unavailability of Dr. Ephraim rendered the employer's list of two physicians ineffective pursuant to Rule of Procedure 8-2(d). Therefore, the ALJ determined that the treatment by Dr. Cain was authorized. However, in our view, even if the right of selection had passed to the claimant at the point that Dr. Ephraim was unavailable the salient point is that she sought treatment with Dr. Rossi.
We acknowledge that it has long been held in Colorado that the right of selection passes to the claimant if the employer or insurer fails to tender care "at the time of the injury." Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo. App. 1987). Moreover, it is still provided in 8-43-404 (5) (a) (I) (A) that 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. However, in our view even if the employer initially waived the right pursuant to § 8-43-404 (5)(a)(I)(A) in the "first instance" to choose the treating physicians by failing to provide a list of two physicians, such waiver does not preclude it from having any right to object to or participate in subsequent changes of physician. See Tournier v. City and County of Denver, W. C. No. 3-892-574, 3-894-603, 3-921-234 (April 30, 1997).
Section 8-43-404(5)(a)(I)(A) provides a detailed procedure for requesting a change of physician after the initial designated physician has been selected. In addition, the Workers' Compensation Rules of Procedure also outline the steps to be taken. Rule 8-2 provides that an injured worker may request a one-time change of authorized treating physician. The new physician must be a physician on the designated provider list or provide medical services for a designated corporate medical provider on the list. The medical provider(s) to whom the injured worker may change is determined by the designated provider list given to the injured worker pursuant to Rule 8-2. Rule of Procedure 8-2(D) provides that if the employer fails to comply with this Rule 8-2, the injured worker may select an ATP of the worker's choosing.
The courts of Colorado have construed procedures for change of physician as applying even if the employer or insurer waived its right to select the initial treating physician. Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973), is illustrative. In Pickett, the claimant was initially treated by a physician of her own choosing. However, she subsequently retained the services of additional physicians without obtaining approval from the insurer or the division. In those circumstances, the court held that the respondents were not liable for the treatment provided by the additional physicians. Relying on the predecessor to § 8-43-404(5)(a), the court stated the following:
The Workmen's Compensation Act does not permit an injured employee to change physicians or to employ additional physicians without notice to his employer or its insurer and consent of the Division of Labor. When an injured employee incurs unauthorized medical expenses, the employer or its insurer is not liable for such expenses. [Citations omitted.] The claimant was properly denied benefits for medical expenses she incurred without proper authorization.
Pickett, 32 Colo. App. at 285, 513 P.2d at 229-30.
It follows that even assuming that the right to designate a physician was waived by the respondents for failure to list the names of two physicians willing to treat pursuant to 8-43-404(5)(a)(I)(A) and Rule of Procedure 8, that waiver does not vitiate the requirement that subsequent changes of physician be approved in accordance with the detailed procedure for requesting a change of physician after the initial designated physician has been selected contained in 8-43-404(5)(a)(I)(A). Consequently, in our view, the ALJ erred in determining that the Dr. Cain was authorized by the respondents' alleged failure to comply with 8-43-404(5)(a)(I)(A).
B.
However, the ALJ also determined on an alternative ground that the right to choose the ATP reverted to the claimant and she validly designated Dr. Cain. The ALJ additionally found that after Dr. Rossi refused to treat the claimant for non-medical reasons the claimant sought direction from the carrier as to where she could receive treatment. The claimant was directed to Dr. Andrick. Dr. Andrick noted that the claimant might need to see a neurosurgeon. Dr. Andrick told her to contact the carrier for further instructions regarding future care. The ALJ determined that Dr. Andrick did not want to further treat the claimant due to a non-medical reason. The ALJ further found that despite the fact that the carrier was aware that Dr. Andrick would provide no further treatment, it did nothing to direct the claimant to any other provider. The ALJ determined that the right to appoint necessarily fell back to the claimant. The ALJ found that the respondents failed to effectively appoint a new ATP after Dr. Rossi refused to treat for non-medical reasons, and the right to appoint reverted to the claimant. We are not persuaded by the respondents' arguments that the ALJ committed reversible error under this alternative ground in determining that Dr. Cain was authorized.
The respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). "Authorization" refers to the physician's legal status to treat the injury at the respondents' expense. Popke v. Industrial Claim Appeals Office, 797 P.2d 677 (Colo. App. 1997). Under § 8-43-404(5)(a), C.R.S. 2009 the employer or insurer is afforded the right in the first instance to provide a list of at least two physicians from which list the injured employee may select the physician who attends her. However, § 8-43-404(5)(a) 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), affd, 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); Ragan v Dominion Services, Inc., W.C. No. 4-127-475, (September 3, 1993).
Whether the ATP refused to treat the claimant for non-medical reasons, whether the insurer had notice of the refusal to treat, and whether the insurer "forthwith" designated a physician who was willing to treat the claimant are questions of fact for resolution by the ALJ. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000); Ruybal v. University Health Sciences Center, supra; Medina v. La Jar a Potato Growers, W.C. No. 4-128-326 (June 1, 1998). Because these questions are factual in nature, we are bound by the ALJ's determinations in this regard if they are supported by substantial evidence in the record. 38-43-304(8), C.R.S. 2009; City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 2003). This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
Here the claimant testified that she had a conflict with Dr. Rossi and he basically told her he could not work with or treat her anymore. Tr. (12/31/2008) at 56. The human resource representative of the employer set up an appointment for her to see Dr. Andrick. Tr. (12/31/2008) at 57. The claimant testified that after she saw Dr. Andrick she did not receive any other medical care from the insurance carrier. Tr. (12/31/2008) at 57. The respondents contend that there was no credible evidence that Dr. Andrick told the claimant to contact the carrier for further instructions regarding future care. However, Dr. Andrick's records indicate that the claimant may need to see a neurosurgeon and contain the statement that "work comp admin for RMC will arrange the care." Exhibit F at 93. In our view the evidence can bear the interpretation that after Dr. Rossi refused to treat for a nonmedical reason the claimant saw Dr. Andrick, who opined the claimant might need further medical treatment, but the claimant did not receive nor was she offered any further medical treatment. Dr. Andrick's record indicating that the administration would arrange for care indicates that the insurer had notice that further care was needed. Therefore, the ALJ made a plausible inference that the claimant was refused medical treatment for a non-medical reason and the insurer had notice of the refusal to treat, but failed to forthwith designate a physician who was willing to treat the claimant. In our view, there is substantial evidence in the record supporting the ALJ's determination that the right of selection had passed to the claimant.
II. The claimant in her brief in opposition has conceded that the respondents should only be responsible for some of Dr. Cain's chiropractic treatment. The claimant acknowledges that the respondents are correct in arguing under § 8-42-101(3)(a)(III), C.R.S. 2009 that they are only responsible for reimbursing the claimant for 12 treatments. The claimant requests that we modify ALJ Felter's April 14, 2009 order to reflect this. Therefore, we so modify the order.
The respondents also contend that the ALJ erred in ordering payment of "all authorized medical treatment" related to the claimant's compensable injury, without an associated qualification that the medical treatment must be reasonable and necessary. We are not persuaded to disturb the ALJ's order on this basis.
We note that the ALJ found that all the Claimant's medical care and treatment "as reflected in the evidence was and is reasonably necessary." The ALJ also reserved for future decision any and all issues not determined by the order. As we read the ALJ's order, he has directed the respondents to pay for all the claimant's past medical care and treatment, which he had already found to be reasonably necessary. We do not read that order as divesting the ALJ of jurisdiction over the issue of the reasonableness and necessity of ongoing medical treatment. See Hanna v. Print Expediters Inc., 77 P.3d 863, 866 (Colo. App. 2003) (once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the employer's right to contest compensability, reasonableness, or necessity); see also, Martin v. Cobre Tire/ Bridgestone Firestone W. C. No. 4-453-804 (October 4, 2004) (the respondents always have the right to challenge the reasonableness and relatedness of ongoing medical treatment). Therefore, except for the stipulated modification we decline to interfere with the ALJ's order regarding medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated April 14, 2009 is modified to reflect that the respondents are only responsible for reimbursing the claimant for 12 of Dr. Cain's chiropractic treatments.
IT IS FURTHER ORDERED that the ALJ's order dated April 14, 2009 is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
DIANE MILLER, ENGLEWOOD, CO, (Claimant).
ACE AMERICAN INSURANCE CO., Attn: LAURIE IVERSON, C/O: SPECIALTY RISK SERVICES, DENVER, CO, (Insurer).
BUESCHER, GOLDHAMMER, KELMAN DODGEE, PC, Attn: NAOMI Y. PERREIRA, ESQ., DENVER, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD A BOVARNICK, ESQ., DENVER, CO, (For Respondents).