W.C. No. 4-451-332 4-494-054Industrial Claim Appeals Office.
September 27, 2002
ORDER OF REMAND
In these consolidated workers’ compensation claims the claimant seeks review of an order of Administrative Law Judge Friend (ALJ) insofar as it denied his claim for medical treatment provided by Dr. Haney. The claimant contends there is not substantial evidence to support the ALJ’s findings concerning authorization of Dr. Haney. We remand for entry of a new order on the contested issue.
In June 1999 the claimant suffered a compensable low back injury while employed by respondent Ameriserve Food Distribution (Ameriserve). Ameriserve was insured by respondent Transcontinental Insurance Company. Dr. Kawasaki was designated as the authorized treating physician for this injury. On January 10, 2001, Dr. Kawasaki placed the claimant at maximum medical improvement for the injury and assigned an impairment rating.
In April 2000 the claimant began work with Exel. Exel was insured by respondent Liberty Mutual Insurance Company (collectively Liberty respondents). The ALJ found that on January 10 and 11, 2001, the claimant sustained an occupational disease which aggravated the claimant’s preexisting back condition. When the claimant reported the injury on January 23, 2001, Dr. Raschbacher was designated as the treating physician.
Concerning liability for medical treatment, the ALJ determined that the claimant’s need for treatment after January 11 was caused by the occupational disease incurred at Exel. The ALJ further found that on February 23, 2001, Dr. Raschbacher “referred” the claimant “back to Dr. Kawasaki,” and that neither Dr. Raschbacher nor Dr. Kawasaki refused to treat the claimant. However, on March 16, 2001, the claimant commenced treatment with Dr. Haney.
The claimant argued the Liberty respondents are liable for the treatment provided by Dr. Haney. However, the ALJ concluded that because the claimant had not been refused treatment Dr. Raschbacher and Dr. Kawasaki, and because Dr. Raschbacher referred the claimant to Dr. Kawasaki in the “normal course of medical care,” Dr. Haney was not authorized. Thus, the claim for treatment was denied.
On review, the claimant contends the ALJ’s findings of fact regarding the willingness of Dr. Raschbacher and Dr. Kawasaki to treat the claimant are not supported by, and are contradicted by, the record. The claimant cites his own testimony as well as the August 28, 2001, report of Dr. Kawasaki in support of his position. The Liberty respondents argue the ALJ rejected the claimant’s testimony and that the medical records support the ALJ’s finding that Dr. Raschbacher referred the claimant to Dr. Kawasaki. In any event, the Liberty respondents argue the claimant failed to prove that Liberty Mutual Insurance Company was aware the physicians were refusing to treat him. Because the ALJ’s findings of fact are insufficient to support appellate review, and because the ALJ may have misapplied the law, we remand for entry of a new order.
Section 8-43-404(5)(a), C.R.S. 2002, gives the employer or insurer the right in the first instance to select the treating physician. Further, providers to whom the claimant is referred in the normal progression of authorized treatment are also authorized to render treatment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). If the claimant changes physicians without procuring permission from the insurer or an ALJ, the treatment is not authorized and the respondents are not liable to pay for it. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228
(Colo.App. 1999).
The insurer’s right to select the treating physician contemplates the insurer will appoint a physician willing to treat the claimant based on the physician’s best medical judgment. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000); Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988). Consequently, 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. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987); 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); Tellez v. Teledyne Water Pik, W.C. No. 3-990-062 (March 24, 1992); aff’d., Teledyne Water Pik v. Industrial Claim Appeals Office,
W.C. No. 92CA0643, December 24, 1992) (not selected for publication). The insurer’s obligation to appoint a new treating physician arises forthwith upon notice that the previously designated physician has refused to treat. Wesley v. King Soopers, W.C. No. 3-883-959 (November 22, 1999).
The questions of whether the authorized treating physician has refused to treat for non-medical reasons, and whether there has been a referral in the normal progression of authorized treatment, are ordinarily questions of fact for determination by the ALJ. See City of Durango v. Dunagan, supra; Davis v. Interstate Brand Corp., supra. Thus, we must uphold the ALJ’s determination if supported by substantial evidence in the record.
Although the ALJ is under no obligation to address the evidence which is not found to be persuasive, the ALJ must make sufficient findings of fact to indicate the factual and legal basis of the order so as to support meaningful appellate review. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Purely conclusory findings are insufficient. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
Here, the ALJ found that neither Dr. Raschbacher nor Dr. Kawasaki refused to treat the claimant. However, the findings are insufficient to support review of the evidentiary basis for this determination. We first note the claimant testified that Dr. Raschbacher refused to see him after February 23, 2001, because Dr. Raschbacher believed the claimant’s symptoms were caused by the 1999 injury. The claimant also testified that Dr. Kawasaki stopped treating him in 2001 because Exel was “declaring it was a new injury.” (Tr. pp. 21-22). Second, Dr. Raschbacher’s dictation of February 23, 2001, states the claimant was “discharged from care at this clinic” and referred to Dr. Kawasaki because Dr. Raschbacher believed the need for treatment was caused by the 1999 injury and the claim for that injury should be reopened. A work status report authored by Dr. Raschbacher on February 23 recommends follow-up with Dr. Kawasaki and “case reopen [sic].” Third, in a report dated August 28, 2001, Dr. Kawasaki noted Dr. Raschbacher’s recommendation of February 23, and stated there “were some authorization problems in trying to get Mr. Dover back in to see me.”
In light of this evidence, and in the absence of more specific findings, we cannot determine the basis for the ALJ’s conclusion that Dr. Raschbacher did not refuse to treat the claimant for non-medical reasons. Indeed, even if the claimant’s testimony were discounted as incredible, Dr. Raschbacher’s own notes purport to discharge the claimant from treatment based on Dr. Raschbacher’s conclusion concerning the cause of and liability for the claimant’s need for treatment, not a medical conclusion regarding the need for treatment. Moreover, Dr. Raschbacher’s referral to Dr. Kawasaki was apparently not made in the “normal progression of treatment” for the January 2001 occupational disease, but because Dr. Raschbacher believed the claimant needed treatment for th prior industrial injury. As Dr. Raschbacher’s February 23 dictation explicitly states, “I do not feel that further treatment should be on the basis of any reported injury for Exel Logistics.”
It follows the matter must be remanded for entry of a new order containing explicit findings of fact and conclusions of law concerning whether or not Dr. Raschbacher refused to treat the claimant for non-medical reasons, and whether the referral to Dr. Kawasaki was in the normal progression of authorized treatment for the 2001 occupational disease. If the ALJ determines Dr. Raschbacher refused to treat for non-medical reasons, the ALJ shall determine if and when the Liberty respondents were on notice of this fact. In this regard, we note that Dr. Raschbacher’s work status report, dated February 23, 2001, contains a certification, dated February 27, 2001, indicating the report and dictation were faxed to the “ADJ.” Thus, there is some evidence from which the ALJ could find that the Liberty respondents were aware of any refusal to treat no later that February 27, 2001. Ultimately, the ALJ shall determine whether the right of selection passed to the claimant and Dr. Haney became authorized.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 22, 2002, is set aside insofar as it denied the claim for treatment rendered by Dr. Haney. On this issue, the matter is remanded for entry of a new order based on the existing record.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
Copies of this decision were mailed September 27, 2002 to the following parties:
Patrick A. Dover, 3645 W. 90th Pl., Westminster, CO. 80030
MSAS Global Logistics, 3700 Havana St., #210, Denver, CO. 80239-3242
Liberty Mutual Fire Insurance, Jill Cross, 2100 Walnut Hill Ln., #100, Irving, TX 75038
Exel, Inc., Bob Mangione, 12225 E. 39th Ave., Denver, CO. 80239
RSKCo Claim Services, Ruth Ann Kuehl, 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