W.C. No. 4-253-689Industrial Claim Appeals Office.
November 4, 1996
ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) insofar as the ALJ required them to pay for medical treatment provided by Dr. Neal and his referrals. We set aside the contested portion of the order in part, and remand the matter for the entry of a new order.
The claimant suffered a compensable back injury on April 17, 1995. It is undisputed that, in the first instance, the respondents designated the University Hospital to treat the claimant’s injury. Dr. Epling treated the injury from April through June 1995. When Dr. Epling left the hospital, she referred the claimant to Dr. Bender, who is not connected with the University Hospital. Dr. Bender examined the claimant in August 1995.
Thereafter, in a letter to the claimant’s counsel dated January 10, 1996 (erroneously dated January 10, 1995), the respondents stated:
“We have contacted Dr. Bender to schedule a follow-up appointment for Ms. Buhrmann but he has refused to continue to treat. Therefore, we have scheduled Ms. Buhrmann for an evaluation with Dr. Kathryn L. Mueller at University Hospital Student and Occupational Services. This appointment is set for Wednesday, January 24th, 1996 at 11 a.m.”
Crediting the claimant’s testimony and the January 10 correspondence, the ALJ determined that the claimant was left without an authorized treating physician after Dr. Bender refused to provide further treatment. Therefore, the ALJ found that the right of selection passed to the claimant, who selected her personal physician, Dr. Neal.
Accordingly, the ALJ determined that Dr. Neal and his referrals are authorized to treat the industrial injury. The ALJ also found that the treatment provided by Dr. Neal and his referrals was reasonable and necessary to cure or relieve the effects of the April 17 injury. Therefore, the ALJ ordered the respondents to pay for the medical treatment provided by these physicians.
On review, the respondents cite the claimant’s testimony that the respondents’ adjuster referred her to Dr. Dietz after Dr. Bender refused to treat her. Therefore, the respondents argue that the claimant was not left without an authorized treating physician.
The respondents also contend that the ALJ’s order is contrary to the applicable law. Particularly, the respondents contend that they exercised their initial right under §8-43-404(5), C.R.S. (1996 Cum. Supp.), to select a physician to treat the industrial injury, and argue that the claimant was not free to change physicians except with permission from the respondents or the ALJ. We disagree.
As stated by the respondents, once the respondents have timely designated an authorized treating physician, they are not liable for unauthorized, non-emergency medical treatment of the claimant. Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). However, § 8-43-404(5) implicitly contemplates that the respondents designate a physician who is willing to provide treatment See 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, or as here, a physician within the chain of referral of the respondents’ selection, refuses to treat the claimant, and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant. See Ruybal v. University Health Sciences Center, 768 P.2d 1259
(Colo.App. 1988); Teledyne Water Pic v. Industrial Claim Appeals Office, supra; Ragan v Dominion Services, Inc., W.C. No. 4-127-475, September 3, 1993.
Here, the ALJ found that the respondents only referred the claimant to Dr. Mueller for an “evaluation.” This is a plausible inference from the January 10 letter. Furthermore, this inference supports the ALJ’s finding that after Dr. Bender refused to treat the claimant, the respondents did not designate a new physician to treat the injuries.
In any case, once the right of selection passes to the claimant, the respondents may not “recapture” the right of selection by a subsequent referral. Cf. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). The claimant selected Dr. Neal to treat the industrial injury long before January 10, 1996. Consequently, it is immaterial whether the respondents’ January 10 letter could be interpreted as a designation of Dr. Mueller as the new treating physician.
In reaching this conclusion, we recognize the claimant’s testimony that the respondents referred her to Dr. Dietz after Dr. Bender refused to provide treatment. However, the record as a whole is subject to conflicting inferences concerning whether the respondents designated Dr. Dietz as the treating physician. The claimant testified that she was only referred to Dr. Dietz for an “evaluation.” (Tr. p. 14). Similarly Dr. Dietz’s report dated October 18, 1995 indicates that he saw the claimant for a “neurology consultation.” Further, the January 10 letter does not mention any referral to Dr. Dietz. Instead, the letter notifies the claimant that the respondents are referring her to Dr. Mueller as a result of Dr. Bender’s refusal to treat.
The ALJ found the January 10 letter persuasive, and implicitly resolved the conflicting evidence against the respondents to find that the respondents did not select Dr. Dietz as the new treating physician. We may not interfere with the ALJ’s resolution of the conflicts. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995) (where medical evidence subject to conflicting inferences, ALJ to resolve conflict). Consequently, we reject the respondents’ argument that the ALJ’s factual determinations are contrary to the evidence.
We also reject the respondents’ contention that the ALJ erroneously granted a retroactive change of physician See Consolidated Landscape v. Industrial Claim Appeals Office, 883 P.2d 571 (Colo.App. 1994) (change of provider is effective on the date of ALJ’s oral order). Where the respondents fail to provide a physician who is willing to treat the injury, and the right of selection passes to the claimant, the claimant is not required to obtain “permission” to select a new physician. Furthermore, the ALJ’s order is not based upon “permission” for a change of physician. Therefore, we need not consider the respondents’ arguments on this issue.
However, to the extent that the ALJ purported to authorize Dr Neal and his referrals retroactively to May 23, 1995, he erred. There is no dispute that, in the first instance, the respondents selected a provider to treat the claimant’s injury. Further, the ALJ’s findings reflect his determination that the “right of selection” did not pass to the claimant until after Dr. Bender refused to provide treatment. Consequently, the claimant was not free to select Dr. Neal to treat the industrial injury, and Dr. Neal was not the authorized treating physician prior to the date Dr. Bender refused to provide further treatment.
The record reveals that Dr. Neal began treating the industrial injury on May 23, 1995, and that Dr. Bender did not refuse to treat the claimant until sometime after his August 1995 examination. However, the ALJ did not make any specific findings concerning the date the claimant was left without an authorized treating physician, and the record is subject to conflicting inferences on that issue. (See Dr. Bender’s letter dated September 20, 1995). Under these circumstances, it is necessary to remand the matter for additional findings of fact and a further order.
On remand, the ALJ must determine the date that the respondents had notice that Dr. Bender refused to treat the claimant. Consistent with that determination, the ALJ shall then enter a new order concerning the date the respondents became liable for the treatment of Dr. Neal and his referrals. Within his discretion, the ALJ may hold an additional hearing to resolve this issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 13, 1996, is set aside insofar as the ALJ required the respondents to pay for medical treatment provided by Dr. Neal and his referrals retroactive to May 23, 1995, and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
Copies of this decision were mailed November 4, 1996 to the following parties:
Yvonne Buhrmann, 1530 Feltham Pl., Longmont, CO 80501
Yvonne Buhrmann, 1357 Emery, Longmont, CO 80501
University of Colorado, P.O. Box 438, Boulder, CO 80309-0438
Helen Baum, University of Colorado Insurance Pool, 4840 Pearl E. Circle, Ste. 103, Boulder, CO 80309
Jack Taussig, Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
BY: _______________________