W.C. No. 4-593-185.Industrial Claim Appeals Office.
August 2, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which required them to pay temporary disability and medical benefits. We affirm.
The claimant suffered work-related injuries on September 17, 2003. The employer referred the claimant to Dr. Kalevik who treated the claimant through October 6, 2003.
The claimant testified that he was interviewed by an investigator for the respondent-insurer on October 1 and October 7, 2003. When asked whether the interviews affected his medical treatment, the claimant stated that after the second interview, treatment “stopped.” He added that he then sought treatment from Dr. Burns, who imposed medical restrictions which precluded the claimant from performing his regular employment. (Tr. p. 24). The respondents were unable to accommodate the claimant’s restrictions on several dates but eventually provided part-time modified employment within the claimant’s medical restrictions.
The ALJ determined treatment from Dr. Kalevik was withdrawn by either Dr. Kalevik [erroneously referred to as Dr. Burns] or the respondents, and that the respondents did not refer the claimant to another physician. Under these circumstances, the ALJ implicitly determined the right of selection passed to the claimant, who selected Dr. Burns. Therefore, the ALJ determined Dr. Burns is an authorized treating physician (ATP) and ordered the respondents to pay the medical expenses incurred by the claimant with Dr. Burns and her referrals. The ALJ also ordered the respondents to pay temporary total and temporary partial disability benefits.
On review, the respondents contend the record is legally insufficient to support the ALJ’s finding that Dr. Kalevik refused to treat the claimant for non-medical reasons. We disagree.
The respondents are liable for all authorized medical treatment which is reasonably 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 authority to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
Under § 8-43-404 (5), C.R.S. 2003, the respondents are afforded the right in the first instance to select a physician to treat the industrial injury. Once the respondents have exercised their right to select the treating physician, the claimant may not change physicians without permission from the insurer or an ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996). However, if the physician selected by the respondents refuses to treat the claimant for non-medical reasons, and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication).
Whether the authorized treating physician has refused to treat the claimant for non-medical reasons is a question of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra. We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301 (8), C.R.S. 2003. Where the evidence supports two equally plausible inferences, it is the ALJ’s sole prerogative to determine the inference to be drawn and we may not substitute our judgment for that of the ALJ. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985).
Here, it is undisputed the claimant did not treat with Dr. Kalevik after October 6, 2003. The reason for the termination of treatment is subject to two conflicting inferences; either the claimant refused to treat with Dr. Kalevik or Dr. Kalevik refused to provide treatment.
The evidence does not show that the claimant refused to treat with Dr. Kalevik. To the contrary, the claimant testified that after the second interview with the insurance investigator Dr. Kalevik’s treatment was “withdrawn.” (Tr. p. 27).
Dr. Kalevik’s October 6 clinic note indicates that Dr. Kalevik planned to recheck the claimant in “about two weeks.” (See Claimant’s hearing exhibit 8). Nevertheless, there is no subsequently dated medical report from Dr. Kalevik concerning the claimant’s condition, or any record from the respondent-insurer concerning additional treatment with Dr. Kalevik or another ATP. However, the record reflects that the respondents filed a Notice of Contest on October 22, 2003, in which the respondents denied the claimant suffered a work-related injury.
Moreover, the employer’s branch manager admitted the employer knew the claimant was treating with Dr. Burns and the employer attempted to accommodate the medical restrictions imposed by Dr. Burns instead of requiring the claimant to return to Dr. Kalevik or another physician for further treatment. (See Tr. pp. 37-38). Under these circumstances, the ALJ could, and reasonably did infer that the respondents “withdrew” authorization for the claimant to treat with Dr. Kalevik without referring the claimant to another physician. See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ’s findings may be inferences from circumstantial evidence). Further, the ALJ’s findings support his determination that Dr. Burns is an ATP. See Ruybal v. University Health Sciences Center, supra. Consequently, the respondents have failed to establish grounds upon which to set aside the ALJ’s award of medical benefits.
II.
Next, the respondents contend the ALJ’s award of temporary total
disability benefits resulted in a due process violation. We perceive no violation.
Temporary total disability benefits are proper if the industrial injury causes total disability lasting more than three working days and the claimant leaves work as a result of the injury. Section 8-42-103 (1), C.R.S. 2003; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Where the wage loss is less than total, the claimant is entitled to temporary partial disability benefits. Section 8-42-106 C.R.S. 2003.
Due process requires that parties be given adequate notice of the issues to be considered in order to present evidence and argument in support of their positions. Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Here, the claimant’s Application for Hearing endorsed the issue of temporary total disability benefits effective September 17, 2003. Moreover, at the commencement of the hearing, the claimant’s attorney again endorsed the issue of temporar total disability benefits, and the respondents’ attorney agreed that issue was before the ALJ for adjudication. (Tr. p. 3). It follows the respondents had notice the claimant sought an award of temporary total
disability benefits.
The question is whether the claimant subsequently withdrew the issue and thereby waived his right to temporary total disability benefits. We conclude there was no waiver.
Waiver is the intentional relinquishment of a known right. A waiver must be made with full knowledge of the relevant facts, and the conduct should be free from ambiguity and clearly manifest the intention not to assert the right. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984). Waiver exists where a party engages, “in conduct which manifests an intent to relinquish the right or privilege or acts inconsistently with its assertion.” Johnson v. Industrial Commission, supra.
After the claimant’s attorney identified the issues endorsed for adjudication, the respondents’ attorney noted that the claimant returned to work. Claimant’s attorney acknowledged that fact and therefore, added that temporary partial disability benefits was at issue. (Tr. p. 4). The following exchange then occurred.
ALJ: [Claimant’s attorney] said the issue is both temporary total and temporary partial? Respondents agree to those issues?
Respondents’ Counsel: Yes, Your Honor, although looking at what counsel has given me, I believe he is actually amending his application to reflect temporary partial disability as opposed to temporary total disability based on the stipulated average weekly wage.
ALJ: Temporary partial for the whole time?
Claimant’s counsel: Correct, Your Honor. There were some periods where he was off for eight, 10 days and then now he is losing just a couple of hours a day, so that’s correct.”
The claimant then testified without objection that he was off work from November 6 to November 16, 2003 because the employer could not accommodate his medical restrictions. (Tr. p. 26). On cross-examination, the claimant added that he was temporarily disabled on the dates and times listed on claimant’s hearing exhibit 6. That exhibit indicates the claimant lost time from work on September 18, September 22 to September 29, and November 6 to November 16, 2003.
Moreover, the claimant’s post-hearing position statement requested temporary total and temporary partial disability benefits consistent with his hearing exhibit 6. Thus, the record contains substantial evidence to support the ALJ’s implicit determination that the claimant did not intend to withdraw the claim for temporary total disability benefits for those periods during which he suffered a total wage loss.
III.
Finally, we reject the respondents’ contention the ALJ erroneously awarded temporary disability benefits beyond September 29, 2003, because the claimant admittedssion that he was capable of performing regular employment.
Once a claimant establishes his entitlement to temporary disability benefits, the benefits must continue until terminated in accordance with § 8-42-105 (3) (a)-(d), C.R.S. 2003. PDM Molding, Inc. v. Stanberg, supra. Section 8-42-105 (3) (b) terminates temporary disability benefits when the claimant returns to regular employment. Insofar as the claimant then seeks additional benefits, it is the claimant’s burden to reestablish a causal connection between the injury and the temporary loss of wages. PDM Molding, Inc. v. Stanberg, supra.
Although the claimant testified that he returned to regular employment after September 29, 2003, the ALJ could properly find a causal connection was reestablished effective November 6, 2003, based on Dr. Burns’ opinion that the claimant was physically unable to perform his regular employment commencing that date.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 1, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
Kevin Cordell, Thornton, CO, Ampco System Parking, Bellevue, CO, American Casualty Company, c/o Ruthann Kiehl, CNA Insurance Companies, Denver, CO, Rick Hull, Esq., Arvada, CO, (For Claimant).
Scott M. Busser, Esq., Denver, CO, (For Respondents).