W.C. Nos. 4-451-332, 4-494-054Industrial Claim Appeals Office.
March 12, 2003
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied a claim for medical treatment provided by Dr. Haney. The claimant contends the pertinent findings of fact and conclusions of law are not supported by substantial evidence. We set the order aside and remand for entry of a new order.
This matter is before us for the second time. Our Order of Remand dated September 27, 2002, contains a statement of the facts, and that statement is incorporated herein. We do note, however, that the September order erroneously stated Dr. Kawasaki placed the claimant at maximum medical improvement for the 1999 injury on January 10, 2001. Dr. Kawasaki actually placed the claimant at MMI on January 10, 2000.
Our Order of Remand determined the ALJ’s first order, dated February 22, 2002, lacked sufficient findings of fact to support review of the ALJ’s conclusion that Dr. Raschbacher did not refuse to treat the claimant for non-medical reasons. The import of this issue was that if Dr. Raschbacher refused to treat the claimant for non-medical reasons, the right of selection would have passed to the claimant if the respondents did not appoint a new authorized physician upon notice of Dr. Raschbacher’s refusal to treat. We also stated that Dr. Raschbacher’s February 23, 2001, “referral” of the claimant to Dr. Kawasaki “was apparently not made in the `normal progression’ of authorized treatment for the January 2001 occupational disease because Dr. Raschbacher believed the claimant needed treatment for the prior
[1999] industrial injury.” Order of Remand at P. 4; (Emphasis in original). All legal authorities cited in our Order of Remand are incorporated herein.
On remand the ALJ entered a second order dated November 21, 2001. Insofar as pertinent, the ALJ found the claimant did not testify that Dr. Raschbacher refused to treat him. This was based on the ALJ’s interpretation of the claimant’s use of the word “they” during the claimant’s testimony. (Finding of Fact 6). Further, the ALJ found that Dr. Raschbacher did not refuse to treat the claimant, but instead referred the claimant to Dr. Kawasaki in the ordinary course of medical treatment. (Findings of Fact 8, 9, 10; Conclusion of Law 3). Finally, the ALJ found the claimant did not consult Dr. Kawasaki until August 28, 2001, and in the interim the claimant procured unauthorized treatment from Dr. Haney. Consequently, the ALJ denied the claim for payment of the treatment rendered by Dr. Haney.
On review, the claimant contends Findings of Fact 6, 8, 9, and 10 are unsupported by the evidence. Consequently, the claimant reasons the ALJ’s order denying payment for treatment rendered by Dr. Haney is contrary to law. Because we now conclude the evidence does not support the ALJ’s conclusions that Dr. Raschbacher did not refuse to treat the claimant for non-medical reasons, and that Dr. Raschbacher referred the claimant to Dr. Kawasaki in the ordinary course of medical treatment, we remand the matter to determine if the right of selection passed to the claimant.
Our prior order contained the statement, together with supporting legal authority, that “if the designated treating physician refuses to provide treatment for non-medical reasons, the insurer must designate a new treating physician or the right of selection passes to the claimant. [citations omitted].” Ordinarily, the question of whether a designated treating physician refused treatment is a question of fact for the ALJ. However, if reasonable minds can draw but one inference, the issue becomes one of law. Schreiber v. Brown Root, Inc., 888 P.2d 274
(Colo.App. 1993). Further, the interpretation of a written document may be an issue of law if the meaning is unambiguous. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000) (question of whether letter constituted request for change of physician was one of law).
Generally, we must uphold an ALJ’s findings of fact if supported by substantial evidence. However, we may set a finding aside if it is erroneous as a matter of law. Section 8-43-301(8), C.R.S. 2002.
Here, we conclude Finding of Fact 8 is erroneous as a matter of law insofar as it finds Dr. Raschbacher did not refuse to treat the claimant. Dr. Raschbacher’s February 23, 2001 office note unequivocally states the claimant is “discharged from care at this clinic” because Dr. Raschbacher considered the claimant’s need for treatment, if any, as the “progression or extension of [the claimant’s] pre-existing disease” attributable to the 1999 injury. Consequently, Dr. Raschbacher referred the claimant to Dr. Kawasaki for treatment because Dr. Kawasaki provided care for the 1999 industrial injury. Indeed, Dr. Raschbacher’s Work Status Report dated February 23, 2001, states the claimant was referred to Dr. Kawasaki for follow up and reopening of the 1999 case.
The only plausible interpretation of Dr. Raschbacher’s February 23 notes is that he no longer intended to provide treatment for the claimant because, in his view, the need for treatment was not caused by the January 2001 injury for which he was selected to be the treating physician. Moreover, the refusal to treat was based not on Dr. Raschbacher’s medical judgment concerning the claimant’s need for treatment, but his opinion concerning legal issues of causation and compensability. Cf. Davis v. Interstate Brand Corp., W.C. No. 4-291-678
(May 17, 1999), aff’d. Interstate-Brands Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1020, December 16, 1999) (not selected for publication).
It follows the ALJ erred as a matter of law in concluding that Dr. Raschbacher referred the claimant to Dr. Kawasaki in the ordinary progression of medical treatment. It is true that medical care rendered in the “normal progression of authorized treatment” is compensable. However, referrals by an “authorized” physician must reflect the exercise of independent medical judgment. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997).
Here, Dr. Raschbacher’s referral to Dr. Kawasaki was not in the “normal progression of authorized treatment” for the January 2001 injury. In fact, Dr. Raschbacher’s referral was based on the premise that the January 2001 injury was not the cause of the claimant’s need for treatment. Moreover, Dr. Raschbacher’s referral was not the product of medical judgment, but rather his opinion that further treatment should not be based on “any reported injury for Exel Logistics.” (Raschbacher note, February 23, 2001, P. 2). Put another way, the referral was based on legal and financial grounds, not independent medical judgment concerning the need for treatment or the appropriateness of treatment.
Thus, we conclude as a matter of law the right of selection passed to the claimant unless the insurer (Liberty Mutual) immediately appointed a new treating physician upon notice the authorized treating physician refused to treat for non-medical reasons. As pointed out in our prior Order of Remand, there is some evidence from which it could be inferred the insurer received notice of Dr. Raschbacher’s refusal to treat soon after February 27, 2001. However, the ALJ entered no findings concerning this evidence. The matter must now be remanded this purpose, and the consequent determination of how much of Dr. Haney’s treatment is authorized (if any).
In light of these determinations, we need not consider the claimant’s arguments concerning Finding of Fact 6.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 21, 2002, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein. Further hearings are not authorized by this order.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed March 12, 2003 to the following parties:
Patrick A. Dover, 3645 W. 90th Pl., Westminster, CO 80030
Bob Mangione, Exel, Inc., 12225 E. 39th Ave., Denver, CO 80239
Jill Cross, Liberty Mutual Fire Insurance, 2100 Walnut Hill Ln., #100, Irving, TX 75038
Ruth Ann Kuehl, RSKCo Claim Services, P. O. Box 5408, Denver, CO 80217-5408
Transcontinental Insurance Co., c/o CNA Insurance Company, 10333 E. Dry Creek Rd., Englewood, CO 80112
Ameriserve Food Distribution, 2085 Midway Rd., Carrollton, TX 75006-5063
Mark Simon, Esq., 1873 S. Bellaire St., #605, Denver, CO 80222 (For Claimant)
Jonathan Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
David Dworkin, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210
By: A. Hurtado