W.C. No. 4-320-275Industrial Claim Appeals Office.
October 16, 1997
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which denied her claim for medical benefits. We set the order aside and remand for entry of a new order.
The claimant sustained a compensable back injury on November 6, 1996. Apparently, the respondent-employer did not select a physician, and the claimant obtained treatment from Dr. Johnson on November 8, 1996. As the ALJ found, the record contains an office note in which Dr. Johnson prescribed medication and stated that the claimant “will follow-up if she’s still disabled in the next 1-3 weeks.”
The claimant testified that Dr. Johnson told her she was suffering from whiplash and that “he could not fully give a diagnosis.” The claimant also stated that Dr. Johnson advised her to see a “specialist” of her own choosing.
The ALJ found that the claimant then “selected Dr. Tom James, a chiropractor.” The claimant treated with Dr. James, who in turn referred the claimant to Dr. Meredith for an MRI.
Under these circumstances, the ALJ found that Dr. Johnson is the claimant’s authorized treating physician. Further, the ALJ concluded that the claimant “failed to sustain her burden of proof that Dr. James and Dr. Meredith were authorized treating physicians.” In particular, the ALJ stated that the claimant is not “free to go out and get medical care wherever she desires.” Consequently, the ALJ denied the claim for payment of the treatment provided by Dr. James and Dr. Meredith.
On review, the claimant first contends that the ALJ erred in determining that Dr. Johnson is her authorized treating physician. Relying on Ruybal v. University of Colorado, 768 P.2d 1259 (Colo.App. 1988), the claimant argues that her testimony establishes that Dr. Johnson refused, or was unable to treat her. Therefore, the claimant argues that she was free to select Dr. James as her treating physician. We find no error.
Under § 8-43-404(5)(a), C.R.S. 1997, the respondents had the right to select the treating physician in the first instance. Because they failed to exercise the right of selection, it passed to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). However, once the claimant selected an authorized treating physician, she was not permitted to retain the services of additional providers without utilizing the statutory procedures contained in §8-43-404(5)(a). See Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
It is true that the claimant has the right to select a physician who is willing to treat her, and the fact that the claimant has difficulty in finding such a physician does not defeat the right of selection. Ruybal v. University of Colorado, supra. For this reason, we have previously held that selection of an authorized treating physician is incomplete where the physician refuses to treat the claimant for non-medical reasons. See Tellez v. Teledyne Water Pik,
W.C. No. 3-990-062 (March 24, 1992), aff’d., Teledyne Water Pik v. Industrial Claim Appeals Office, (Colo.App. No. 92CA0643, December 24, 1992) (not selected for publication).
Here, however, the record contains evidence that Dr. Johnson did not refuse to treat the claimant. As the ALJ found, Dr. Johnson prescribed medication and instructed the claimant to return if she was still disabled. Thus, even if Dr. Johnson referred the claimant to a “specialist,” there is substantial evidence that he became an authorized treating physician willing to treat the claimant. Because the evidence supports the ALJ’s finding that Dr. Johnson was authorized, we may not interfere with that determination. Section 8-43-301(8), C.R.S. 1997.
The claimant next contends that even if Dr. Johnson was authorized, he made a “general referral” to a “specialist.” The claimant argues that she selected Dr. James pursuant to the referral, and therefore, he is authorized. We conclude that the ALJ’s findings of fact are insufficient to resolve this argument because the ALJ failed to resolve pertinent conflicts in the evidence. Section 8-43-301(8).
An employer is liable for medical expenses when, as part of the normal progression of authorized treatment, an authorized treating physician refers the claimant to other providers for additional services. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). A referral may be made either orally or in writing, and the question of whether a referral was made is one of fact for determination by the ALJ. 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). A referral is not invalid simply because it is “general” rather than “specific” in nature. Eckard v. Weatherford International, Inc., W.C. No. 3-796-220 (August 29, 1988).
Here, the ALJ found that the claimant “testified” that Dr. Johnson gave her a general referral to a “specialist,” and that the claimant “selected” Dr. James. (Findings of Fact 5, 6). However, it is unclear from the ALJ’s findings of fact whether he credited the claimant’s testimony that Dr. Johnson gave a general, oral referral. If the ALJ believed this testimony, then he erred in concluding that the treatment provided Dr. James and Dr. Meredith was not authorized as part of the chain of referral Greager v. Industrial Commission, supra.
It may be that the ALJ did not credit the claimant’s testimony because Dr. Johnson’s November 8, 1996 office note contains no mention of a referral to a specialist. However, we are unwilling to draw that inference in light of the ALJ’s oral remarks at the conclusion of the hearing. The ALJ stated the following:
“I agree that the claimant has failed to sustain her burden of proof as far as Dr. James and that care. The authorized physician in this case became Dr. Johnson because Dr. Johnson was the doctor seen; if he makes a referral that referral is valid, but he didn’t make a referral, and there is no evidence that he made any referral, therefore, the claimant is not free to go out and get treatment wherever she desires.” (Tr. p. 14). (Emphasis added).
Contrary to the ALJ’s oral remarks, and as indicated in his written findings, there is evidence that the claimant received an oral referral from Dr. Johnson. On remand, the ALJ shall explicitly determine whether Dr. Johnson made an oral referral, and award or deny benefits accordingly.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 1997, is set aside, and the matter remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed October 16, 1997 to the following parties:
Michele L. Blake, 910 Grant St., Ft. Morgan, CO 80701
Crescent Electric Supply Co., Attn: Kevin Baumer, 1507 Nelson Rd., Longmont, CO 80501
Hartford Underwriters Insurance Co., Attn: Myra Jelinek, 7670 S. Chester St., Ste. 300, Panorama Corporate Center II, Englewood, CO 80112
James H. Massey, Esq., 320 1/2 Main St., Longmont, CO 80501 (For the Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., Ste. 300, Panorama Corporate Center II, Englewood, CO 80112
By: __________________________________________________