W.C. No. 4-268-198Industrial Claim Appeals Office.
November 26, 1996
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which determined that three physicians were authorized, and ordered them to pay medical benefits. We affirm.
The ALJ found that the claimant sustained a compensable occupational disease involving her left upper extremity, with a date of onset of May 8, 1995. The claimant was first examined by Dr. Major on May 19, 1995. Dr. Major diagnosed “flexor tenosynovitis,” prescribed a hand splint, and imposed restrictions against repetitive motion. The claimant was next seen by Dr. Charbonneau on June 12, 1995. Dr. Charbonneau agreed with Dr. Major’s diagnosis. The claimant was then seen by Dr. Oligmueller on June 16, 1995. He also recommended a splint and imposed restrictions.
The ALJ concluded that all three physicians who examined the claimant were authorized to treat her. In support of this determination, the ALJ stated that, “because respondent-insurer contested Claimant’s claim, Claimant was entitled to seek medical treatment from a doctor she chose and to referral doctors, pursuant to statute.” The ALJ also determined that all of the treatment provided by these physicians was related to the injury, and was “reasonably and necessarily incurred.”
I.
On review, the respondents first contend that the ALJ erred in determining that Dr. Charbonneau and Dr. Oligmueller were authorized physicians. The respondents point out that the claimant admitted that the respondents designated Dr. Major as the treating physician, and that she was examined by Dr. Major. Consequently, the respondents assert that the claimant was not free to retain the services of Dr. Charbonneau and Dr. Oligmueller, regardless of the fact that the respondents contested the claim. We find no error.
As the respondents argue, § 8-43-404(5)(a), C.R.S. (1996 Cum. Supp.), gave them the right in the first instance to select the treating physician. Consequently, the claimant was not entitled to change physicians, or obtain the services of additional physicians, without obtaining the consent of the insurer or obtaining permission from the Division. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). This is true despite the fact that the respondents contested liability for the claim. Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
However, the respondents are liable for expenses incurred to the extent the authorized treating physician referred the claimant to other providers in the normal progression of authorized treatment. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995); Greager v. Industrial Commission,701 P.2d 168 (Colo.App. 1985). Moreover, the respondents must designate a physician who is willing to treat the claimant based on his or her best medical judgment, and will not refuse treatment for economic reasons. Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988).
Here, the ALJ erred insofar as he held that the respondents’ decision to contest the claim automatically entitled the claimant to select a physician of her own choosing. Pickett v. Colorado State Hospital, supra. However, we conclude that the findings and the record otherwise support the award of benefits.
The respondents concede that Dr. Major was the claimant’s initial authorized treating physician. (Respondent’s brief p. 2, 4). Further, it is undisputed that Dr. Major referred the claimant to Dr. Charbonneau for further treatment. (Physician’s Report, Dr. Major, May 19, 1995). Moreover, respondents do not dispute that, on June 12, 1995, Dr. Charbonneau noted that the respondents were denying liability and advised the claimant that she was “certainly free to seek medical care from whomever she sees fit to see, as it is coming out of her personal insurance benefits.” (Charbonneau office note, June 12, 1995). Thereafter, the claimant consulted Dr. Oligmueller.
Under these circumstances, it is apparent that Dr. Charbonneau became an authorized treating physician based upon Dr. Major’s referral. Further, Dr. Oligmueller became authorized either because of Dr. Charbonneau’s general referral, or because Dr. Charbonneau declined to treat the claimant for non-medical reasons and advised the claimant to seek treatment elsewhere. The ALJ implicitly recognized as much by stating that the claimant was entitled to treatment not only from the doctor she “chose,” but also “referral doctors.” For these reasons, we conclude that the record supports the ALJ’s determination that Dr. Charbonneau and Dr. Oligmueller are authorized treating physicians.
II.
The respondents next contend that there is insufficient evidence to support the ALJ’s findings that the claimant’s need for medical treatment was related to the injury, and that the treatment was reasonable and necessary. As a related argument, the respondents assert that the ALJ’s findings are too indefinite concerning which treatments he found to be reasonable and necessary. These arguments are without merit.
The question of whether a need for medical treatment is causally connected to the industrial injury is one of fact for resolution by the ALJ. F. R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ assertions notwithstanding, the claimant’s testimony concerning the nature of her work, taken with the medical evidence cited by the ALJ, constitutes substantial evidence that the need for treatment was caused by repetitive motion disease incurred in the workplace. The ALJ credited the claimant’s testimony concerning the repetitive nature of her work. Moreover, Dr. Major’s report of October 25, 1995, indicates that, in view of the claimant’s history, her condition is “likely related to repetitive motion” which she experienced at work. The fact that some evidence in the record might support a contrary finding and conclusion is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Further, the ALJ’s findings concerning the reasonableness and necessity of the treatments provided by the physicians are not insufficient. To the contrary, it is apparent from the entirety of the ALJ’s order that he credited the opinions of Dr. Major, Dr. Charbonneau, and Dr. Oligmueller concerning the appropriate treatment and care of the claimant’s injury. Because the medical evidence amply supports the ALJ’s determination that these treatments were reasonable and necessary, it must be upheld on review. Suetrack USA v. Industrial Claim Appeals Office, supra,
(determination of whether services are reasonably needed is a question of fact).
IT IS THEREFORE ORDERED that the ALJ’s order dated April 26, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed November 26, 1996 to the following parties:
Cathy C. Roberts, 2421 14th Ave., Greeley, CO 80631
StarPak, Inc., Attn: Kevin Cory, 237 22nd St., Greeley, CO 80631
Liberty Mutual Fire Ins., Attn: Michelle Montoya, P.O. Box 3539, Englewood, CO 80155-3539
Raymond A. Melton, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For the Respondents)
John Hoyman, Esq., and Bob Ring, Esq., 1115 Eleventh Ave., Greeley, CO 80631
(For the Claimant)
By: ___________________________