IN THE MATTER OF THE CLAIM OF AFREDO VARGAS, Claimant, v. TETRA TECHNOLOGIES, and Employer, INSURANCE COMPANY OF NORTH AMERICA, Insurer, Respondents.

W.C. No. 4-771-845.Industrial Claim Appeals Office.
December 18, 2009.

ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 12, 2009, that determined the insurer was not liable for the costs of the care the claimant received from Dr. Yamamoto and that Dr. Steinmetz was an authorized treating physician. We dismiss without prejudice the claimant’s petition to review insofar as it seeks review of the ALJ’s order on the issue of Dr. Steinmetz’s designation as an authorized treating physician. Otherwise, we affirm the order.

The claimant sustained a serious compensable industrial injury to his lower left leg on September 15, 2008. While the claimant was in an intensive care unit (ICU) a representative of the employer showed the claimant a designated provider list and a picture of Dr. McNair and asked the claimant if he wanted to continue treatment with Dr. McNair. The designated provider list offered a choice between Dr. McNair and Dr. Steinmetz. The claimant stated that he did want to continue treatment with Dr. McNair and signed his name on a document that asked him to state his physician preference. The employer representative left a copy of the provider list with the claimant. Upon his release from the hospital, the insurer’s nurse case manager recommended Dr. Steinmetz and the claimant sought and received treatment from Dr. Steinmetz. Dr. Steinmetz provided an initial evaluation and referred the claimant to Dr. Lesnak for evaluation and management. On December 9, 2008, the claimant saw Dr. Yamamoto on his own for an initial examination. A referral to Dr. Yamamoto was not made by any of the claimant’s authorized treating physicians. Dr. Yamamoto noted the claimant’s counsel contact information at the top of his initial evaluation form.

Page 2

At the hearing, the claimant argued that the employer provided the designated provider list prematurely because he was still receiving emergency treatment. The ALJ determined that the claimant remained free after having seen Dr. Steinmetz to change to Dr. McNair under § 8-43-404(5)(a)(III). C.R.S. 2009. The ALJ concluded that both Dr. McNair and Dr. Steinmetz are authorized, as were their referrals. The ALJ concluded that Dr. Yamamoto was not authorized. The claimant brings this appeal.

I.
The claimant first contends that the ALJ erred in determining that § 8-43-404(5) C.R.S. 2009 and Rule of Procedure 8, 7 Code Colo. Reg. 1101-3 (2009) do not prohibit the respondents from providing a designation letter while the claimant is undergoing emergency treatment. The claimant further contends that § 8-43-404(5) and Rule 8 should be read to implicitly bar respondents from providing a designation letter in cases where a claimant is not competent to receive such a letter. We are not persuaded that the ALJ committed reversible error in his conclusion regarding Dr. Yamamoto’s authorization.

Section 8-43-404(5) provides that in all cases of injury, the employer or insurer shall provide a list of at least two physicians in the first instance, from which list an injured employee may select the physician who will attend him. 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. Rule 8(2) concerns initial medical referrals and in large part tracks § 8-43-404(5). Rule 8(2) provides that 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). If the employer fails to comply with this Rule 8-2, the injured worker may select an authorized treating physician.

In interpreting these provisions, we apply the ordinary rules of statutory construction. The purpose of statutory construction is to effect the legislative intent. Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings Weld County School District RE-12 v. Beemer, 955 P.2d 550 (Colo. 1998). The principles governing the interpretation of administrative regulations are the same as those concerning statutes. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo. App. 1995), affd. in part, revd. in part on other grounds, 946 P.2d 913 (Colo. 1997). In our view the language found in § 8-43-404(5)(a)(I)(A) and Rule 8-2 does not prohibit delivering a designation letter to an injured worker while he is receiving emergency care.

We acknowledge as argued by the claimant that Rule 8-2 does make specific provision for emergency situations. Rule 8-2(B) provides that

Page 3

In an emergency situation the injured worker shall be taken to any physician or medical facility that is able to provide the necessary care. When emergency care is no longer required the provisions of paragraph (A) of this rule apply.

The claimant urges that the plain meaning of this language is that in the case of medical emergencies, the requirements of Rule 8, specifically providing a designated provider list, must not be acted upon by respondents until the claimant is no longer receiving emergency treatment. We disagree.

In our view Rule 8-2(B) is a recognition of the exception for emergency treatment, to the general rule that the employer in the first instance selects the medical care provider. In Colorado, the court of appeals recognized an exception for emergency treatment to the employer’s right to choose the treating physician. See Sims v. Indus. Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). We do not view the emergency provision contained in Rule 8-2(B) as modifying the essential nature 8-43-404(5) which provides that the employer upon notice of an injury must timely provide a list of physicians to the injured employee or the right of selection passes to the employee. Rule 8-2(B) does not expressly change the time limits or obligations of the employer to provide a list of physicians in cases where the treatment was begun on an emergency basis. See Heinicke v. Industrial Claim Appeals Office 197 P.3d 220 (Colo. App. 2008) (in construing a statute or rule we must refrain from reading nonexistent provisions into it). Therefore, in the absence of express authority supporting the claimant’s position and in light of our reading of the rule, we decline to interfere with the ALJ’s order.

It is true that there may be questions regarding the capacity of an injured worker to understand and assent to a legal document when it is presented to the worker while he is being treated in an intensive care unit. Here, however, the respondents timely presented a designated provider list to the claimant. The designated provider list offered a choice between Dr. McNair and Dr. Stenimetz. The claimant signed the document and selected Dr. McNair. Exhibit A. However, the record could certainly be construed to raise questions regarding the claimant’s capacity. At the time the list of doctors was provided to him he had received four blood transfusions earlier in the day, had undergone surgery, was receiving oxygen, and had been give medications that are known to impact cognitive ability.

In our view, the appropriate question is not whether the respondents were permitted under the applicable law to designate doctors at that time, but rather the effect of the potential invalidity of the claimant’s selection of a physician from the designation of physicians. See generally Delsas ex rel. Delsas v. Centex Home Equity Co. LLC, 186 P3d. 141(contracts executed by mentally incapacitated people are voidable). In this

Page 4

regard, we note that the claimant was not without recourse if he later believed that his selection of a physician from the list of designated physicians was improvident based on his incapacity.

There are different provisions in the Act under which the claimant may obtain a change in the designated physician. Section 8-43-404(5)(a)(III) provides that an employee may obtain a one-time change in the designated authorized treating physician by providing proper notice and providing the new physician is on the employer’s designated list. There is no allegation that the claimant sought this one-time change in designated authorized treating physician other than the discussion he had with the insurer’s nurse case manager who referred him to Dr. Steinmetz who was the other physician on the designated provider list with Dr. McNair. We note that the ALJ found that the respondents did not seek to bind the claimant to his choice stated in the ICU of Dr. McNair. Instead the respondents have not objected to treatment by either Dr. Steinmetz or Dr. McNair. The ALJ determined that the claimant may seek treatment from one or both of these authorized providers and their chain of referrals.

In addition to the one-time change of physician provided for under § 8-43-404(5)(a)(III), upon written request to the insurance carrier an injured employee may procure written permission to have a personal physician treat him under § 8-43-404(5)(a)(VI). Here, there is no allegation that the claimant sought a change of authorized physician by writing to the insurer or employer pursuant to 8-43-404(5)(a) (VI) C.R.S. 2009 and requesting a change.

Further a claimant under § 8-43-404(5)(a) (VI) may upon the proper showing to the Division procure the Division’s permission at any time to have a physician of the employee’s selection treat him. It does not appear that the claimant sought to procure the Division’s permission to have a physician of his own selection treat him. Section 8-43-404(5)(a) (VI).

Instead of seeking to change physicians based upon his alleged lack of capacity the claimant chose to obtain treatment from Dr. Yamamoto on his own. Dr. Yamamoto then noted in his report that while the claimant had been seeing Dr. Steinmetz and Dr. Lesnak, the primary care had been transferred to him and the claimant need not return to Dr. Steinmetz or Dr. Lesnak. Under these circumstances, we are not persuaded that Dr. Yamamoto was authorized. We therefore decline to interfere with the ALJ’s order that the insurer is not liable for the cost of the care the claimant received from Dr. Yamamoto.

II.
The claimant next argues that the ALJ erred in failing to admit Exhibit 111, which was the claimant’s letter to the respondents notifying them of his designation of Dr. Yamamoto

Page 5

pursuant to Rule 8-2(B). We are unable to find Exhibit 111 in the record. Ordinarily this would require a remand for completion of the record.

However, here the claimant has not argued that any error in the exclusion of Exhibit 111 affected any substantial right See CRE 103(a) (error may not be predicated on the exclusion of evidence unless a substantial right of the party is affected); § 8-43-310, C.R.S. 2006 (harmless error standard for review of workers’ compensation cases). Moreover, in our view no substantial right was affected.

In reaching our determination we assume, without deciding, that Exhibit 111 is exactly as represented by the claimant. We further assume, without deciding, that the ALJ erred in not admitting it into evidence. However, on the issue of authorization of Dr. Yamamoto, the fact that the claimant notified the respondents of his designation of Dr. Yamamoto as his treating physician would only be relevant if the right of selection had passed to the claimant. As noted above we disagree with the claimant that the Act and the rules of procedure prohibit the respondents from providing a designation letter while the claimant is undergoing emergency treatment. Under these circumstances, any error regarding the admission of Exhibit 111 was harmless and will be disregarded. See § 8-43-310 C.R.S. 2009; Bodensieck v. Industrial Claim Appeals Office 183 P.3d 684 (Colo. App. 2008).

III.
The claimant finally argues that even if the ALJ’s order regarding authorization was correct he nevertheless erred in determining that Dr. Steinmetz was an authorized treating physician. This determination may have an impact in the future on issues where the opinion of an authorized treating physician affects the claimant’s receipt of compensation or benefits, such as whether he is at maximum medical improvement.

However, the ALJ’s finding concerning whether Dr. Steinmetz was an authorized treating physician did not result in the denial of any benefits or penalties, nor does it require the payment of any benefits or penalties. There is no contention that the claimant has been denied medical treatment by Dr. Steinmetz, Dr. McNair or any of their referrals. Therefore, this portion of the ALJ’s order is not final and appealable under § 8-43-301(2), C.R.S. 2009. Our jurisdiction is statutory and we may not consider the issue at this time. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843, 846 (Colo. App. 1989) (order may be partially final and reviewable and partially interlocutory).

IT IS THEREFORE ORDERED that the claimant’s petition to review the ALJ’s order dated June 12, 2009, on the issue of Dr. Steinmetz’s designation as an authorized treating physician is dismissed without prejudice.

Page 6

IT IS THEREFORE FURTHER ORDERED that the ALJ’s order June 12, 2009 is otherwise affirmed affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

Page 7

AFREDO VARGAS, THORNTON, CO, (Claimant).

INSURANCE COMPANY OF NORTH AMERICA, Attn: MR. WES JOHNSON, C/O: ESIS, TAMPA, FL, (Insurer).

BUESCHER, GOLDHAMMER, KELMAN DODGE, PC, Attn: NAOMI Y. PERERA, ESQ./SHELLY DODGE, ESQ., DENVER, CO, (For Claimant).

CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD A BOVARNICK, ESQ., DENVER, CO, (For Respondents).