IN THE MATTER OF THE CLAIM OF SIBYL A. RIES, Claimant, v. SUBWAY OF CHERRY CREEK, INC., Employer, and TRUCK INSURANCE EXCHANGE, Insurer, Respondents.

W.C. No. 4-674-408.Industrial Claim Appeals Office.
January 12, 2011.

ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated August 16, 2010, that denied the claimant’s request for surgery and for change of physician to Dr. Leibowitz. We affirm the order in part, set aside in part, and remand for further proceedings.

The claimant suffered an industrial injury in 2007. The claimant was placed at maximum medical improvement (MMI) on September 30, 2008 by Dr. Castro. The claimant returned to Dr. Castro in 2009 with complaints of hand pain. Dr. Castro referred the claimant to Dr. Brian for a consultation. Dr. Brian recommended a redo-fusion of the claimant’s left wrist and fingers. The respondents filed an application for hearing on the issue of the reasonableness and necessity of the proposed surgery. In January of 2010 the claimant decided to relocate to Florida. Dr. Castro gave the claimant a referral list for physicians in Florida. The claimant exhausted the referral list and then went through a phone book and found Dr. Leibowitz who agreed to take her as a patient.

The ALJ found the surgery prescribed by Dr. Brian was not reasonable and necessary and therefore denied it. The ALJ denied the claimant’s request for change of physician to Dr. Leibowitz. The claimant brings this appeal requesting that the case be remanded with instructions to determine the issue of whether there was a proper referral, or in the alternative, whether the right of selection passed to the claimant after the respondents failed to provide a treating physician in Florida. The claimant further requests that the denial of medical treatment consisting of surgery to her right wrist be reversed.

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I.
The claimant contends that the ALJ erred in crediting the opinion of Dr. Griggs in denying the claimant’s request for surgery. The ALJ found that the opinions of Dr. Griggs were credible and persuasive. The ALJ was not persuaded by the opinions expressed by Dr. Brian that the claimant should undergo a redo-fusion of the claimant’s wrist.

The claimant, citing to sections of the report prepared by Dr. Griggs and portions of her own testimony, argues that the record does not support the ALJ’s finding that Dr. Griggs opined that an additional surgery was not reasonably necessary. We acknowledge that in his report, when asked about the additional surgery, Dr. Griggs stated that he would have to see the patient personally and look at her x-rays to make a determination and could not specially comment on the request for the surgery. Exhibit J at 3. Nevertheless Dr. Griggs, in the same report, concluded that he did not think that the additional surgery would likely be helpful for the patient. Exhibit J at 3.

We further acknowledge that in his testimony Dr. Griggs did state that he did not know what to say regarding further surgery. Griggs Depo. at 11, 17, 23. However, Dr. Griggs did go on to state that he could say that the claimant had two failed surgeries already and he did not think that a third surgery would make things better. Griggs Depo. at 11. Additionally, in response to a question to clarify why he would not endorse another surgery unless he could see the patient, Dr. Griggs testified that his opinion was based on the fact that the claimant had two prior surgeries and continued pain and before recommending surgery he would seek another opinion. Griggs Depo. at 24-25.

We note that the claimant also underwent a Division-sponsored independent medical examination (DIME) on February 3, 2009. The DIME physician agreed that the claimant was at MMI on September 30, 2008. The DIME physician, although recommending certain maintenance treatment, did not indicate that the claimant was in need of additional surgery. Exhibit A at 9.

The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). In our view, the ALJ’s determination that Dr. Griggs opined that an additional surgery was not reasonably necessary is supported by substantial evidence in the record and so is binding on us. Section 8-43-301(8), C.R.S. We perceive no reversible error in the ALJ’s determination to deny the claimant’s request for a third wrist surgery because it had not been demonstrated to be reasonable and necessary.

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II.
The claimant contends that the ALJ erred in deciding the issue of change of physician, which was not set for hearing or litigated by the parties. The claimant contends that the ALJ incorrectly analyzed the claim under § 8-43-404(5)(a) C.R.S., which discusses the process for requesting a change of physician. The claimant requests that the matter be remanded to the ALJ with instructions to determine the issue of whether there was a proper referral. We are not persuaded that a remand on this ground is necessary.

We recognize that when a claimant must relocate to another state, and her treating physician refers her for additional care in the new state in the “normal progression of authorized treatment,” the physician to whom the claimant is referred is authorized Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985). We further recognize that the ALJ did discuss the issue of requesting a change of physician under § 8-43-404(5)(a) C.R.S.

However, here the ALJ specifically found that Dr. Castro’s letter of February 16, 2010 was not a proper referral because the preponderance of the evidence showed that the claimant selected Dr. Leibowitz and was not referred to the physician. Therefore we do not agree with the claimant that the matter must be remanded to the ALJ with instructions to determine the issue of whether there was a proper referral. It is clear to us that the ALJ has made such a determination.

III.
The claimant next contends that the ALJ erred in determining that Dr. Leibowitz was not within the chain of referral. We are not persuaded that the ALJ committed reversible error.

The ALJ made the following findings of fact. The claimant was placed at MMI by Dr. Castro on September 30, 2008. In January of 2010 the claimant decided to relocate to Florida, specifically, the Fort Myers area. On February 16, 2010 the claimant requested that Dr. Castro refer her to a physician in the Fort Myers, Florida area. The claimant did not inform the respondents of her intentions to relocate out of state. By the end of January the claimant had exhausted the referral list given to her by Dr. Castro. The claimant went through a phone book and found a Dr. Leibowitz who agreed to take her as a patient. The claimant did not seek assistance from respondents on this matter. Dr. Castro wrote a letter to Dr. Leibowitz dated February 16, 2010. The claimant does not specifically challenge these findings.

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The ALJ concluded that Dr. Castro’s letter of February 16, 2010 was not a proper referral because the preponderance of the evidence showed that the claimant selected Dr. Leibowitz and was not referred to the physician. Exhibit 11. In our view this is a reasonable inference made from Dr. Castro’s letter and surrounding circumstances. The record contains substantial evidence supporting the ALJ’s finding that Dr. Leibowitz did not become an authorized treating physician in the normal chain of referrals by Dr. Castro for treatment. City of Durango v. Dunagan, 939 P.2d 496 (Colo. App. 1997); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo. App. 1995) (existence of valid referral is a question of fact). We are therefore bound by the ALJ’s determination. Section 8-43-301(8), C.R.S.

IV.
The claimant next contends that the ALJ erred in failing to address the issue of whether the right of selection passed to the claimant. The claimant argues that the evidence shows that the respondents were aware of the claimant’s planned move to Florida as early as February 2, 2010 but to the date of the hearing the claimant still did not have a treating physician in Florida. The claimant requests that the case be remanded for the ALJ to decide whether the right of selection had passed to the claimant after the respondents failed to provide a treating physician in Florida.

The employer or insurer has the right in the first instance to select the physician to attend the injured employee. Section 8-43-404(5)(a), C.R.S. If the employer or insurer exercises its right to select the treating physician, the claimant may not change physicians or employ additional physicians without obtaining permission from the employer, insurer, or an ALJ. However, if the employer fails timely to tender the services of a physician, the right of selection passes to the claimant and the claimant is entitled to have the physician she selects be an authorized treating physician. Rogers v. Industrial Claim Appeals Office, 746
P.2d 565 (Colo. App. 1987).

Here, the ALJ made the following relevant findings of fact. The claimant had not made a proper showing for a change of the authorized treating physician (ATP) to Dr. Leibowitz that she had found on her own. The claimant did not follow the statutory procedure to request a change of physician. Dr. Castro’s letter of February 16, 2010 was not a proper referral because the preponderance of the evidence shows that the claimant selected Dr. Leibowitz and was not referred to the physician. Dr. Castro wrote a letter to Dr. Leibowitz indicating he would take over the claimant’s care. The claimant sent a letter dated March 1, 2010 to the respondents attaching a copy of Dr. Castro’s letter and requesting a change of physician to Dr. Leibowitz. In her letter the claimant did not specify where in Florida she was relocating. The claimant was aware that she was going to relocate to Florida, but by her own admission, did not inform respondents of her intentions. The letter of March 1, 2010 was a letter of intent to change physicians, not a

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request for a change of physician. The claimant was scheduled to see Dr. Leo prior to relocating to Florida. Due to car trouble, the claimant did not attend the appointment and relocated to Florida prior to rescheduling with Dr. Leo. The claimant did not reschedule the appointment with Dr. Leo and proceeded to relocate to Florida. The respondents on March 16, 2010 properly denied the claimant’s request for a change of physician. On May 17, 2010 the respondents made an appointment for the claimant with Dr. Mehalik in Fort Myers. The respondents had shown that they properly designated a physician in Florida who was willing to treat the claimant. The respondents did not deny care rendered by Dr. Castro or Ms. Kearney while the claimant has resided in Florida. Therefore, the ALJ denied the request for a change to Dr. Leibowitz.

The question of whether the respondents failed to timely tender the services of a physician and the right of selection passes to the claimant and the claimant is entitled to have the physician she selects be an authorized treating physician is a question of fact for resolution by the ALJ. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo. App. 1988); Buhrmann v. University of Colorado Health Sciences Center, W.C. No. 4-253-689 (November 4, 1996); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), affd, Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo. App. 92CA0643, December 24, 1992) (not selected for publication).

Here, the claimant argues that the evidence showed the respondents were aware of the claimant’s planned move to Florida as early as February 2, 2010 as demonstrated by a copy of a letter by Dr. Castro dated January 5, 2010 sent to the claimant on that date. Exhibit 8. We note that Dr. Castro’s January 5, 2010 letter indicates that the claimant planned to ultimately move to Florida and that Dr. Castro had given her some referral sources, but that Dr. Castro would continue to see the claimant in her clinic as that transition occurred. The claimant’s attorney wrote a letter dated March 1, 2010 enclosing a copy of Dr. Castro’s letter of February 16, 2010 “referring” the claimant to Dr. Leibowitz in Florida and asking that Dr. Leibowitz be authorized as soon as possible. Exhibit 13. The ALJ found that the respondents on March 16, 2010 properly denied the claimant’s request for a change of physician.

The essential issue in a case involving whether the right of selection passes to the claimant and the claimant is entitled to have the physician she selects be an authorized treating physician is whether the respondents failed to timely tender the services of a physician. The claimant contends that to the date of the hearing on June 9, 2010 the claimant still did not have a treating physician in Florida. However, the ALJ found that on May 17, 2010 the respondents made an appointment for the claimant with Dr. Mehalik in Fort Myers and that the respondents had shown that they properly designated a physician in Florida who was willing to treat the claimant. Exhibit 19.

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In our opinion a remand is necessary even though the ALJ has found that the respondents had properly designated a physician in Florida. If the claimant obtained unauthorized medical treatment, it is clear that the respondents are not required to pay for it. Section 8-43-404(7), C.R.S.; Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973). However, in order to assert the statutory right to designate a provider in the first instance, the respondents have an obligation to name the treating physician forthwith. Rogers v. Industrial Claim Appeals Office, supra. The respondents’ failure to designate the authorized treating physician results in the right of selection passing to the claimant. Id. Here, the respondents’ duty to designate a medical provider in Florida was triggered once the employer or insurer has some knowledge of facts that would lead a reasonably conscientious manager to believe that the claimant was relocating to Florida and would require treatment in Florida Bunch v. Industrial Claim Appeals Office of State of Colorado, 148 P.3d 381 (Colo. App. 2006); Jones v. Adolph Coors Co., 689 P.2d 681 (Colo. App. 1984) (the respondents’ duty is triggered once the employer or insurer has some knowledge of facts that would lead a reasonably conscientious manager to believe the case may involve a claim for compensation).

The resolution of when the respondents’ duty to designate a medical provider in Florida is one of fact for resolution by the ALJ. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo. App. 1997). We have no fact finding ability. Rather, as with all factual questions, we must uphold the ALJ’s findings concerning these questions if supported by substantial evidence in the record. § 8-43-301(8), C.R.S.

Accordingly, we must remand the matter for the ALJ’s determination on the narrow issue of whether the respondents timely designated a medical provider in Florida once the employer or insurer had some knowledge of facts that would lead a reasonably conscientious person to believe that the claimant was relocating to Florida and would require treatment in Florida.

IT IS THEREFORE ORDERED that the ALJ’s order dated August 16, 2010 is set aside insofar as it failed to determine whether the respondents promptly designated a medical provider in Florida once the employer or insurer had some knowledge of facts that would lead a reasonably conscientious person to believe that the claimant was relocating to Florida and would require treatment in Florida. The matter is remanded for entry of a new order on this issue in accordance with the views expressed herein on this issue.

IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

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SIBYL A RIES, NORTH FT MYERS, FL, (Claimant).

SUBWAY OF CHERRY CREEK, INC., ENGLEWOOD, CO, (Employer).

TRUCK INSURANCE EXCHANGE, Attn: TAMMY DeWALT, CLAIMS ADJUSTER, C/O: FARMERS INSURANCE, OKLAHOMA CITY, OK, (Insurer).

PEPE J. MENDEZ ASSOCIATES, PC, Attn: ELSA MARTINEZ-TENREIRO, ESQ., DENVER, CO, (For Claimant).

VARNELL ASSOCIATES, Attn: JOE M. ESPINOSA, ESQ., DENVER, CO, (For Respondents).

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