W.C. No. 4-253-689Industrial Claim Appeals Office.
April 7, 1997
FINAL ORDER
The respondents have filed a Petition for Review of an order issued by Administrative Law Judge Gandy (ALJ) on December 12, 1996, pursuant to our Order of Remand dated November 4, 1996. We affirm.
The claimant suffered a compensable back injury on April 17, 1995. In the first instance, the respondents designated the University Hospital to treat the claimant’s injury. Dr. Epling, at the University Hospital treated the claimant from April through June 1995. When Dr. Epling left the hospital, the claimant began treating with Dr. Bender. Sometime after August 1995, Dr. Bender refused to provide further treatment.
The claimant then began treating with Dr. Neal, who made additional referrals. At the respondents’ request, the claimant was also examined by Dr. Dietz. Thereafter, in a letter to the claimant’s counsel dated January 10, 1996, the respondents requested that the claimant attend an “evaluation” by Dr. Mueller.
In an order dated June 13, 1996, the ALJ determined that the claimant was left without an authorized treating physician when Dr. Bender refused to provide further treatment. Therefore, the ALJ found that the right of selection passed to the claimant, who selected her personal physician, Dr. Neal. Accordingly, the ALJ determined that Dr. Neal is authorized to treat the industrial injury, and ordered the respondents to pay for the treatment by Dr. Neal and his referrals retroactive to May 23, 1995.
The respondents timely appealed the ALJ’s order of June 13. On appeal, the respondents argued that the ALJ’s finding that Dr. Neal and his referrals are authorized treating physicians is contrary to the evidence and the applicable law.
In our Order of Remand, we rejected the respondents’ argument. We concluded that under § 8-43-404(5), C.R.S. (1996 Cum. Supp.), the right to select the treating physician passed to the claimant upon Dr. Bender’s refusal to provide further treatment. However, we concluded that the right of selection did not pass until sometime after August 1995. Therefore, we set aside the ALJ’s order insofar as he required the respondents to pay for the treatment of Dr. Neal and his referrals retroactive to May 23, 1995, and remanded the matter for the ALJ to determine the date the respondents became liable for Dr. Neal’s treatment.
On remand, the ALJ entered his December 12 order in which he determined that the employer had notice of Dr. Bender’s refusal to provide further treatment on January 10, 1996. Therefore, the ALJ ordered the respondents to pay for the medical treatment by Dr. Neal and his referrals commencing January 10, 1996.
The respondents do not dispute the ALJ’s finding concerning the date they had notice that Dr. Bender would not provide further treatment. Rather, the respondents’ sole argument is that we and the ALJ erred in concluding that Dr. Neal and his referrals are authorized to treat the claimant’s injury.
The respondents’ argument was expressly considered and rejected in our order dated November 4. The reasoning we relied upon in rejecting the argument is set forth in detail in our Order of Remand, and need not be repeated here.
The respondents’ further arguments do not persuade us to alter our prior conclusion. The respondents argue that the University Hospital remains the claimant’s designated provider. However, the respondents concede that when Dr. Epling was no longer available to treat the claimant, they selected Dr. Bender to treat the claimant. Consequently, the respondents actions are inconsistent with their assertion concerning the University Hospital.
Moreover, the ALJ was not persuaded by the respondents’ argument that they selected Dr. Dietz to assume the claimant’s treatment. See Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966) (ALJ is not required to explicitly discuss theories he rejected). To the contrary, the ALJ was persuaded by the respondents’ January 10 correspondence which does not mention Dr. Dietz as a treating physician, and can reasonably be interpreted as designating Dr. Mueller to only perform an “evaluation” of the claimant.
Therefore, insofar as the respondents request that we reconsider our prior order, we decline to do so and adhere to our conclusion that the ALJ did not err in finding that Dr. Neal and his referrals are authorized treating physicians. As a consequence, the respondents have not presented grounds which afford us a basis to disturb the ALJ’s December 12 award of medical benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 12, 1996 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed April 7, 1997 to the following parties:
Yvonne Buhrmann, 2330 Wedgewood Ave., Unit 5B, Longmont, CO 80503-1734
University of Colorado, P.O. Box 438, Boulder, CO 80309-0438
Helen Baum, University of Colorado Insurance Pool, 4840 Pearl E. Circle, Ste. 103, Boulder, CO 80309
Jack Taussig, Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondent)
By: _______________________________