Opinion
W.C. No. 4-766-877.
November 6, 2009.
FINAL ORDER
The respondents seek review of an Order Pursuant to Remand of Administrative Law Judge Stuber (ALJ) dated August 4, 2009, that ordered the insurer to pay for certain medical treatment after April 18, 2008. We affirm.
It is undisputed that the claimant suffered an occupational disease to both her hands. The issue before the ALJ was authorization of medical care. The ALJ found that the treatment by Dr. Pise, Dr. Struck and Penrose Hospital before April 18, 2008 was unauthorized. The ALJ further found that the claimant provided notice on April 18, 2008 sufficient to cause a conscientious manager to believe that the claimant might have a compensable work injury. The ALJ determined that the treatment by Dr. Lund, Memorial Occupational Health Center, Dr. Pise, Dr. Struck and their referrals after April 18, 2008 was authorized and reasonably necessary to cure or relieve the effects of the claimant's occupational disease.
Generally, the employer or insurer has the right in the first instance to select the physician who attends the injured employee, but if the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician. See § 8-43-404(5)(a), C.R.S. 2009; see Vanadium Corp. of America v. Sargent 134 Colo. 555, 307 P.2d 454 (Colo. 1957). The issue here is whether the right of selection automatically passed to the claimant because the employer failed to designate an authorized physician following receipt of notice that would indicate to a reasonably conscientious manager that the case might involve a potential compensation claim. See Jones v. Adolph Coors Co., 689 P.2d 681 (Colo. App. 1984).
The respondents contend that the ALJ erred in determining that they had notice of a potentially compensable claim on April 18, 2009 and therefore the ALJ erred in ordering payment of medical bills after that date including payment for the surgery. The respondents, citing § 8-43-301(8) C.R.S. 2009, argue that the ALJ's finding is not supported by substantial evidence in the record.
Because the issue of whether the employer was placed on notice that would indicate to a reasonably conscientious manager that the case might involve a potential compensation claim is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8); See Wallace v. Stone Gate Homes, W. C. No. 4-650-504 (April 18, 2006) (the question of whether the employer was placed on notice sufficient to trigger its reporting duties is largely one of fact); see also Doughty v. Poudre Valley Health, W. C. No. 4-488-749 (January 13, 2003). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
The ALJ made the following pertinent findings of fact, with record support. The claimant began work for the employer on January 23, 2008. Tr. at 9. She initially did a lot of data entry work. Tr. at 10. The claimant complained about her keyboard and chair to the executive administrator for the employer. Tr. at 12-13. The claimant sought care from her own personal physician and was eventually referred to Dr. Struck who saw her on April 16, 2008. Tr. at 14. Dr. Struck noted that typing in poor ergonomic conditions aggravated the claimant's pain syndrome. Exhibit C at 9. Dr. Struck diagnosed possible bilateral carpal tunnel syndrome and gave the claimant a prescription for a workplace ergonomic evaluation. Exhibit at 10-11. It was at this point the claimant first realized that she had a possible workers' compensation claim. Tr. at 28. On April 18, 2008, the claimant delivered the prescription for an ergonomic evaluation to the executive administrator. Tr. at 29-30. The claimant did not report a work injury to her hands; she merely delivered the prescription for the ergonomic evaluation. Tr. at 29-30. The employer did not provide the requested ergonomic evaluation and at that time, did not refer the claimant for any medical treatment. Tr. at 29-30. The ALJ concluded that the April 18, 2008 notice from the claimant to the employer was sufficient to cause a reasonably conscientious manager to believe that the injuries to the claimant's hands might be compensable. In our view there is substantial evidence supporting the ALJ's determination that the employer had notice of a potentially compensable claim on April 18, 2009.
The respondents direct our attention to evidence in the record that the claimant made certain assertions that she was not bringing a workers' compensation claim. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding). We cannot say that the evidence pointed to by the respondents compelled the ALJ to conclude that the respondents did not have notice of a potentially compensable claim on April 18, 2008 as found by the ALJ.
The respondents also argue that the phrase "might involve a potential compensation claim" is "exceptionally" vague and fails to provide employers with a standard that can be reliably applied. However, we note that this standard is derived directly from a published opinion issued by the Colorado Court of Appeals. In Jones v. Adolph Coors Co. supra, the court quoted Larson, Workers' Compensation Law, in stating: "An employer is deemed notified of an injury when he 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 at 688 (emphasis added). The ALJ is bound by the published decisions of the Colorado Court of Appeals, as are we, and therefore we perceive no error in the ALJ's application of that standard. In our view the ALJ did not err in determining that the April 18, 2008 notice from the claimant to the employer was sufficient to cause a reasonably conscientious manager to believe that the claimant's bilateral hand injuries "might" be compensable.
IT IS THEREFORE ORDERED that the ALJ's order dated August 4, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant THIS PAGE INTENTIONALLY LEFT BLANK
NANCY L MILLER, WOODLAND PARK, CO, (Claimant).
POLICY STUDIES INC., Attn: BRUCE DANFELSER, DENVER, CO, (Employer).
CHUBB GROUP OF INSURANCE COMPANIES, Attn: SCOTT DANFELSER, ENGLEWOOD, CO, (Insurer).
LEE KINDER, LLC, Attn: KATHERINE M. LEE, ESQ., DENVER, CO, (For Respondents).