W.C. No. 4-291-678Industrial Claim Appeals Office.
May 17, 1999.
FINAL ORDER
The claimant and the respondents separately petitioned for review of an order of Administrative Law Judge Friend (ALJ) which awarded additional medical and temporary disability benefits. The respondents contend the ALJ erroneously determined that the claimant’s disability and need for additional medical treatment are causally related to the industrial injury. The claimant contends the ALJ erred insofar as he did not order the respondents to pay for Dr. Janssen’s treatment. We affirm the award of temporary disability benefits, and modify the award of medical benefits.
On March 8, 1996, the claimant suffered an admitted low back injury. The respondents designated Dr. Hawke as the authorized treating physician. On February 19, 1997, Dr. Hawke placed the claimant at maximum medical improvement (MMI) and discharged him from further treatment. However, the claimant continued to experience low back pain.
In October 1997, the claimant experienced an acute exacerbation of low back pain which extended to his lower extremities. The claimant sought emergency treatment on October 30 and was referred to Dr. Janssen for ongoing treatment. On October 31, 1997, the claimant began treating with Dr. Janssen, who diagnosed a herniated lumbar disc and recommended surgery. On November 18, 1997, the claimant was reexamined by Dr. Hawke, who opined that the claimant’s need for additional treatment was not related to the industrial injury. On November 19, 1997, the claimant underwent surgery by Dr. Janssen to repair a herniated disc at L4-5 and L5-S1.
Crediting the opinions of Dr. Janssen and rejecting the contrary opinions of Dr. Hawke, the ALJ found that the claimant’s ongoing back problems were a natural and proximate result of the original industrial injury. Therefore, the ALJ ordered the respondents to pay temporary disability benefits from November 19, 1997 to April 28, 1998, when Dr. Janssen released the claimant to return to work. The ALJ also required the respondents to provide additional medical benefits. However, the ALJ determined that Dr. Hawke did not refuse to treat the claimant, and that the claimant failed to make a proper showing for a change of physician. Consequently, the ALJ determined that Dr. Janssen is not authorized to treat the injury and that the respondents are not liable for the medical expenses incurred by the claimant with Dr. Janssen.
I.
The respondents contend there is not substantial evidence in the record so support the ALJ’s finding that the claimant’s ongoing back problems are causally related to the original industrial injury. We disagree.
The claimant denied any new injury between February 1997 and October 1997. Rather, he stated that his condition gradually worsened until October 30, 1997. (Tr. pp. 12, 16).
In a report dated February 27, 1998, Dr. Janssen stated: “I clearly feel that [the claimant’s] injury is related to a workmans compensation injury.” Dr. Janssen opined that the original industrial injury involved an undiagnosed disk injury, and that the disk gradually expanded and continued to rupture over time until it became an acute situation shortly before the surgery. (Janssen depo. pp. 14-16, 19). Further, Dr. Janssen stated that the medical reports concerning the claimant’s pain complaints and the history provided by the claimant are consistent with the normal progression of a disk injury. (Janssen depo. pp. 19, 20, 31).
Further, Dr. Hawke and Dr. Shemeth recommended the claimant engage in a home exercise program after MMI. (See Tr. p. 21; Dr. Hawke reports dated February 19, 1997 and October 7, 1997; Dr. Shemeth report dated July 23, 1997). The claimant testified that the acute exacerbation of his low back pain occurred after performing home exercises, and Dr. Hawke admitted the home exercises could aggravate the claimant’s low back problems. (See
Tr. p. 21; Hawke depo. pp. 6, 7; Dr. Hawke reports dated February 19, 1997, October 7, 1997, and November 18, 1997). The ALJ could reasonably infer from this evidence that the claimant’s need for further medical treatment was the natural and proximate consequence of the original injury, and his determination is supported by substantial evidence. Therefore, the ALJ did not err in holding the respondents liable for further medical and temporary disability benefits.
II.
The claimant contends the ALJ erred in finding that Dr. Janssen is not an authorized treating physician and that the respondents are not liable for the medical expenses he incurred with Dr. Janssen. We agree with the claimant concerning Dr. Janssen’s treatment after November 18, 1997, and therefore, modify the ALJ’s order accordingly.
The respondents are only liable for authorized or emergency medical treatment. See § 8-42-101(1), C.R.S. 1998; Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
Under § 8-43-404(5), C.R.S. 1998, 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); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Furthermore, the claimant’s need for emergency treatment does not affect the respondents’ designation of the authorized treating physician for all non-emergency treatment. Sims v. Industrial Claim Appeals Office, supra.
However, § 8-43-404(5) implicitly contemplates that the respondents will designate a physician who is willing to provide treatment. 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). Therefore, 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 supra; Teledyne Water Pic v. Industrial Claim Appeals Office, supra; Buhrmann v. University of Colorado Health Sciences Center,
W.C. No. 4-253-689 (November 4, 1996); Ragan v. Dominion Services, Inc., W.C. No. 4-127-475, (September 3, 1993).
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. However, we are not bound by the ALJ’s determination if it is not supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
We have searched the record, including the hearing transcript and the depositions of Dr. Janssen and Dr. Hawke, and are unable to find any evidence to support the ALJ’s finding that Dr. Hawke did not refuse to treat the claimant for non-medical reasons. Rather, the record compels a contrary determination. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (where undisputed facts lead to only one conclusion the issue is a question of law).
The claimant and the adjuster for the respondent-insurer testified that in October 1997, the claimant contacted the adjuster and requested further medical treatment. (Tr. pp. 24-26, 29-30; Kemper letter dated November 12, 1997). There is substantial evidence from which the ALJ reasonably inferred that the respondents granted the claimant’s request and arranged for an appointment with Dr. Hawke on November 18, 1997. Under these circumstances, the claimant was not entitled to change physicians prior to November 18, 1997, and the treatment provided by Dr. Janssen prior to that date is neither authorized nor compensable.
However, the record does not support the ALJ’s finding that the claimant failed to return to Dr. Hawke after receiving emergency treatment on October 30, 1997. (Finding of Fact 10). To the contrary, it is undisputed the claimant returned to see Dr. Hawke on November 18, 1997.
Moreover, after the November 18 examination Dr. Hawke reported:
“From the patient’s history, I would conclude that the patient’s current low back complaints are not work-related. I recommend that he continue his treatment including whatever he and Dr. Janssen have decided are in his best interest. The patient’s work status should be determined by his treating physicians. No further medical visits are scheduled for the patient at this location for this non-work-related condition.”
The only reasonable inference which can be drawn from Dr. Hawke’s November 18 report is that Dr. Hawke declined to provide further medical treatment based upon his determination that the claimant’s need for further treatment was not work-related, and thus not compensable. This is true because Dr. Hawke did not reject the opinion that the claimant required further treatment. In fact, Dr. Hawke recommended the claimant “continue his treatment” and follow the treatment recommendations of Dr. Janssen and his “treating physicians.” Furthermore, Dr. Hawke did not provide further treatment and did not retract his November 18 report.
Thereafter, the respondents did not designate a new treating physician. To the contrary, the adjuster for the respondent-insurer admitted that where the authorized treating physician opines that a claimant’s medical condition is not work-related, the insurer does not approve any further treatment. (Tr. p. 33). Under these circumstances the evidence compels the conclusion that effective November 18, 1997, the respondents failed to tender the services of a physician who was willing to treat the effects of the industrial injury and thus, the right of selection passed to the claimant who selected Dr. Janssen to treat the injury.
In reaching this conclusion we note that once the right of selection passes to the claimant it may not be recaptured by the respondents’ subsequent offer of medical treatment. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). Consequently, evidence Dr. Hawke reexamined the claimant on May 1, 1998, does not alter Dr. Janssen’s status as the authorized treating physician. In any case, Dr. Hawke’s May 1998 report indicates that the reexamination was a “Comprehensive Medical Consultation” for the purpose of evaluation prior to return to work, and not for treatment.
The respondents contend that the ALJ could reasonably infer that Dr. Hawke “simply allowed the claimant to treat with the physician he had already selected,” rather than refuse to treat the claimant. Regardless of whether Dr. Hawke “allowed” the claimant to treat with Dr. Janssen, the only evidence in the record indicates that Dr. Hawke declined to treat the claimant and his reason for withholding treatment was not medical in nature. Consequently, the ALJ erred in refusing to hold the respondents liable for the treatment provided by Dr. Janssen commencing November 19, 1997.
In view of this disposition the claimant’s remaining argument is moot. Therefore, we do not consider whether the ALJ abused his discretion in finding that the claimant failed to make a proper showing for a change of physician.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 19, 1998, is reversed insofar as it determined Dr. Janssen is not an authorized treatment physician and that the respondents are not liable for the medical expenses incurred by the claimant with Dr. Janssen after November 18, 1997.
IT IS FURTHER ORDERED that in all other respects the ALJ’s order 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, 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. 1998.
Copies of this decision were mailed May 17, 1999 the following parties:
Jimmie Davis, 7200 Masey, Denver, CO 80221
Wonder Hostess-Interstate Brands Corporation, Attn: Denise Crowe, 80 E. 62nd Ave., Denver, CO 80216-1102
Lumbermen’s Mutual Casualty Company, Attn: Deb Heisler, P. O. Box 5347, Denver, CO 80217
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Ted A. Krumreich, Esq., 1225 17th St., 28th floor, Denver, CO 80202 (For Respondents)
BY: le