W.C. No. 4-211-826Industrial Claim Appeals Office.
April 29, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ) which determined that certain medical treatment was authorized. We affirm.
The ALJ found that the claimant sustained a compensable ankle injury on June 26, 1992. The injury occurred off the employer’s premises while the claimant was performing an errand related to her employment. The claimant immediately sought emergency medical treatment at a Kaiser facility.
The claimant returned to work on June 30, and related the “specifics of her injury” to the employer’s president and the employer did not refer the claimant to any specific medical provider, and the claimant continued to receive treatment at the Kaiser facility for approximately six weeks. However, the claimant’s condition did not improve and, at her attorney’s suggestion, the claimant decided to consult Dr. Richard Charles, D.P.M. But before consulting Dr. Charles, the claimant advised the company president and the office manager of her desire to see another doctor, and the president “suggested that it was a good idea.”
Dr. Charles diagnosed reflex sympathetic dystrophy and agreed with the claimant and her attorney that the claimant should be referred to Dr. McClellan. Eventually, the claimant moved to Cleveland, Ohio, and Dr. McClellan referred the claimant to the Cleveland Clinic Foundation for further treatment.
Under these circumstances, the ALJ concluded that the treatment provided by Dr. Charles, and all subsequent treatment, was authorized. In so doing, the ALJ stated that the employer’s failure to make a proper referral upon notice of the injury authorized the claimant to select her own physician. Therefore, the ALJ concluded that the claimant was free to choose Dr. Charles, and that all subsequent referrals were authorized. In any event, the ALJ stated that the respondent-employer “acquiesced” in the claimant’s choice of Dr. Charles by indicating that it did not object and suggesting that “it was a good idea.”
On review, the respondents contend that the ALJ erred in determining that Dr. Charles and all subsequent providers were authorized treating physicians. The respondents reason that the claimant selected Kaiser as her authorized provider, and was treated there for several weeks. Under these circumstances, the respondents argue that the claimant was not free to obtain treatment from Dr. Charles without pursuing the statutory methods for changing physicians prescribed by § 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.). Under the circumstances present here, we reject this argument.
Generally, it is true that a claimant who has selected the treating physician is not free to hire additional physicians without pursuing one or the other of the statutorily prescribed methods for obtaining a change of physicians. See Greager v. Industrial Commission, 701 P.2d 168
(Colo.App. 1985); Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973). However, the courts have created an exception where the “employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization” to change physicians Greager v. Industrial Commission, 701 P.2d at 170.
Here, the ALJ found that the claimant sufficiently advised the employer of the nature of her injury. Moreover, the claimant advised her superiors that she desired to obtain treatment from Dr. Charles, and the employer’s president stated that this would be a “good idea.” Because these findings are supported by substantial evidence, they must be upheld. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Moreover, these findings support the ALJ’s legal conclusion that the employer acquiesced in the claimant’s desire to change physicians from Kaiser to Dr. Charles. Thus, there was no error in determining that Dr. Charles and subsequent physicians in the chain of referral are authorized. Greager v. Industrial Commission, supra.
It follows that we need not determine whether the ALJ erred in concluding that the claimant was free to hire Dr. Charles as an initial treating physician. Regardless of this alleged error, the finding that the employer acquiesced in the change is sufficient to support the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 20, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed April 29, 1996 to the following parties:
Michelle Y. Bricker, 1507 W. Ford Cir., Apt. #207. Westlake, OH 44145
International Entertainment Consultants, P.O. Box 782, Westminster, CO 80030-0782
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
David W. Doyle, Esq., 4465 Kipling St., Ste. 200, Wheat Ridge, CO 80033
(For the Claimant)
John FitzSimons, Esq., 3464 S. Willow St., Denver, CO 80231
(For the Respondents)
By: _______________________