W.C. Nos. 4-436-946 4-461-420Industrial Claim Appeals Office.
September 26, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) insofar as the order denied medical benefits. We affirm.
The ALJ found the claimant suffered a compensable injury on May 2, 2000, while employed by Wisner Mechanical. That evening, the claimant sought treatment from Dr. Rainer. Following that appointment, the claimant faxed a report of injury to the employer.
The ALJ found the employer referred the claimant to Mercy Medical Center for treatment, but the claimant refused and continued to treat with Dr. Rainer. Under these circumstances, the ALJ determined Dr. Rainer was not authorized, and that the respondents are not liable for the treatment provided by Dr. Rainer and his referrals.
On review, the claimant contends the ALJ implicitly determined the employer tendered the services of a physician on May 2, 2000. The claimant contends this finding is not supported by the record because he testified he did not speak to the employer until five days after the injury. Therefore, the claimant contends the ALJ erroneously relieved Wisner Mechanical and Pinnacol Assurance (the respondents) of liability for medical expenses incurred with Dr. Rainer. We disagree.
The respondents are liable for all authorized medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). “Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
Section 8-43-404(5), C.R.S. 2001, affords the employer a statutory right to select the authorized treating physician. An employer has a duty to tender treatment as soon as “knowledge of the injury first comes to its attention.” Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987). The employer has sufficient information to trigger its duty to tender medical treatment when the employer has:
“some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.”
Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984). If the services of a physician are not tendered “forthwith,” the right of selection passes to the claimant, and the employer may not recapture the right of selection by subsequently referring the claimant to a specific physician. Rogers v. Industrial Claim Appeals Office, supra.
The question of whether the employer has timely tendered the services of a physician is a question of fact for resolution by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Under this standard, we may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses or resolution of conflicts in the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558
(Colo.App. 2000).
Here, the ALJ did not find the employer tendered the services of a physician on May 2, 2000. The ALJ found the claimant faxed the injury report to the employer “and then spoke by telephone to Robin Wisner, co-owner of Wisner Mechanical” at which time Ms. Wisner referred the claimant to Mercy Medical Center for treatment. (Finding of Fact 8). However, the ALJ did not expressly determine the telephone conversation occurred on May 2, 2000. Rather, the ALJ determined that “when Ms. Wisner became aware of the claimant’s injury, she referred him to Mercy Medical Center.” (Conclusions of Law 7).
Ms. Wisner testified that she did not receive the faxed report of injury from the claimant until the evening of May 2 and that she did not attempt to respond that evening. Instead, she stated that the next day either she called the claimant or the claimant called her requesting medical treatment. During that conversation, Ms. Wisner testified, she told the claimant his medical expenses would not be covered unless he went to Mercy Medical Center for treatment. (Wisner depo. pp. 5-8, 12, 30-31, 35).
Within his prerogative, the ALJ implicitly resolved the conflict between the claimant and Ms. Wisner in favor of the respondents. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ not required to accept even unrefuted testimony as true); Moreover, there is substantial evidence in Ms. Wisner’s testimony to support the ALJ’s finding that under the circumstances presented here, the respondents timely exercised the right to select the treating physician. Consequently, the ALJ correctly determined that the respondents are not liable for the treatment provided by Dr. Rainer and his referrals. It is immaterial that the claimant’s testimony contains some evidence which, if credited, might support a contrary result. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
We note the ALJ made no finding of fact concerning whether the employer made a “pre-designation” of the Mercy Medical Center. Therefore, we have not considered the claimant’s arguments on that issue.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 23, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is 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. 2001. 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 September 26, 2001 to the following parties:
Joseph Amorelli, Jr., P. O. Box 833, Mancos, CO 81328
Amorelli Plumbing Heating, Inc., 240 A S Madison, Cortez, CO 81321
Wisner Mechanical, 2675 County Road 311, Ignacio, CO 81137-9129
George Ortiz/Anne Ruybal, Pinnacol Assurance, Medium West Team, P. O. Box 469011, Denver, CO 80246-9011
Robert C. Dawes, Esq., 573 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Glen B. Goldman, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents Wisner Mechanical, Inc. and Pinnacol Assurance)
Eric Pollart, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents Amorelli Plumbing Heating, Inc. and Pinnacol Assurance)
BY: A. Pendroy