W.C. No. 4-264-157Industrial Claim Appeals Office.
August 28, 2001
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which required them to pay for medical expenses incurred by the claimant with Dr. Pero and his referrals and reinstated the claimant’s application for a Division-sponsored independent medical examination (DIME). We dismiss the appeal of the order reinstating the DIME request, set aside the award of medical benefits and remand.
In March 1995 the claimant suffered a compensable injury. The respondents designated Dr. Bergland to treat the injury. On December 14, 1999, Dr. Bergland placed the claimant at maximum medical improvement (MMI) and released the claimant from treatment.
On March 16, 2000, the claimant sought additional treatment from Dr. Bergland. It is undisputed Dr. Bergland refused to examine the claimant for non-medical reasons. As a result, the claimant began treating with Dr. Pero on March 29, 2000. The respondents refused to pay for the treatment provided by Dr. Pero and his referrals on grounds Dr. Pero was not an authorized treating physician.
The ALJ determined that because Dr. Bergland refused to treat the claimant for non- medical reasons, the claimant was free to select a new treating physician. Furthermore, the ALJ determined that the treatment provided by Dr. Pero and his referrals was reasonable and necessary to treat the industrial injury. Therefore, the ALJ ordered the respondents to pay for the disputed treatment. The respondents timely appealed.
The record reveals the claimant also applied for a DIME to dispute Dr. Bergland’s finding of MMI. On March 30, 2000, a Prehearing Administrative Law Judge struck the DIME request on grounds it was untimely. In the order on review, the ALJ reinstated the claimant’s application for a DIME.
I.
The respondents contend the ALJ erroneously ordered the payment of treatment provided by Dr. Pero and his referrals. We agree and, therefore, we set aside the award of medical benefits.
The respondents are only liable for emergency and authorized treatment. Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). Section 8-43-404(5), C.R.S. 2000, affords the respondents the right, in the first instance, to select a physician to treat the industrial injury. Once the respondents have exercised their right to select the treating physician, the claimant may not change physicians without permission from the insurer or an ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996). However, § 8-43-404(5) contemplates the respondents 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) aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication). 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 to treat the injury. 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).
We have also held that in cases where the designated treating physician refuses to treat the claimant for non-medical reasons, the right of first selection does not instantaneously pass to the claimant. Rather, the respondents are entitled to a reasonable period of time to select a replacement physician and the duty to tender the services of a substitute physician does not arise until the respondents are aware the designated physician refused to provide treatment for non-medical reasons. See Bilyeu v. Babcock Wilcox, Inc,. W.C. No. 4-349-701 et. al (July 24, 2001); Tellez v. Wal-Mart Stores Inc., W.C. No. 4-413-780
(July 20, 2000); Wesley v. King Soopers, W.C. No. 3-883-959 (November 22, 1999); cf. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987) (statute contemplates that medical treatment be tendered forthwith upon notice of an injury). We adhere to our previous conclusions.
Our decision in Buhrmann v. University of Colorado Health Sciences Center, supra, is not authority to the contrary. In that case we stated that where the designated physician refuses to treat for non-medical reasons, “and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant.” (Emphasis added).
The questions of when the respondents became aware of the treating physician’s refusal to treat, and whether the respondents then timely designated a substitute physician are factual determinations for the ALJ. See Ruybal v. University Health Sciences Center, supra. Furthermore, the ALJ’s findings are binding if supported by substantial evidence in the record. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
Here, the ALJ did not make any findings of fact concerning when, if ever, the respondents became aware that Dr. Bergland refused to treat the claimant for non-medical reasons. Neither did the ALJ determine whether the respondents timely directed the claimant to return to Dr. Bergland for authorized treatment. Under these circumstances, the ALJ’s findings are insufficient to ascertain whether the ALJ erroneously required the respondents to pay the disputed medical treatment. Consequently, we remand the matter for additional findings which resolve the pertinent issues. Based upon those determinations the ALJ shall enter a new order concerning the respondents’ liability for the treatment provided by Dr. Pero and his referrals.
II.
The respondents also contend the ALJ erroneously overturned the PALJ’s order to strike the claimant’s application for a DIME. We conclude the ALJ’s order reinstating the DIME request is not currently subject to review.
Section 8-43-301(2), C.R.S. 2000, provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Interlocutory orders are reviewable when appealed incident to a final order. American Express v. Industrial Commission, 712 P.2d 1132
(Colo.App. 1985). This is true because the legislative purpose underlying the restrictions on appellate review is to avoid piecemeal litigation. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
We have repeatedly held that orders granting DIMEs are not subject to review because they do not award or deny any benefit or penalty within the meaning of the Workers’ Compensation Act. See American Express v. Industrial Commission, supra; Parra v. Sonnenalp Properties, Inc., W.C. No. 3-108-875, (May 17, 1994); Martinez v. CIGNA Insurance,
W.C. No. 4-153-571, (April 21, 1994). Rather, a DIME conducted pursuant to a dispute concerning the treating physician’s finding of MMI serves an evidentiary function. Adams v. Sunburst Properties and Financial Corp.,
W.C. No. 4-261-472 (September 24, 1996).
Here, the ALJ reinstated the claimant’s application for a DIME on the issue of MMI. However, the ALJ did not award or deny any disability or medical benefits based upon the pendency of the DIME. Neither did the ALJ award or deny any penalty. Consequently, this portion of the ALJ’s order is interlocutory and not currently subject to review. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986) (order may be partially final and partially not final).
IT IS THEREFORE ORDERED that the ALJ’s order dated January 18, 2001, is set aside insofar as it determined Dr. Pero is an authorized treating physician and required the respondents to pay the costs of medical treatment provided by Dr. Pero and his referrals. That matter is remanded to the ALJ for a new order on the issue of medical benefits which is consistent with the views expressed herein.
IT IS FURTHER THEREFORE ORDERED that the respondents’ petition to review the ALJ’s order reinstating the claimant’s application for a DIME is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
An action to modify or vacate this Order may be 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 August 28, 2001 to the following parties:
Dennis Rogan, 1620 McArthur, Colorado Springs, CO 80909
Glenn Mickelson, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Sandy Parrott, Liberty Mutual Insurance, P. O. Box 168208, Irving, TX 75016-8208
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq., 1675 Larimer St., #710, Denver, CO 80202 (For Respondents)
BY: A. Pendroy