W.C. No. 4-283-481Industrial Claim Appeals Office.
June 24, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Erickson (ALJ). The respondent contends that the ALJ erred in awarding medical benefits. We disagree, and therefore, affirm.
The ALJ determined that the claimant suffered a compensable low back injury as a result of a physical altercation with a co-worker during his regular work shift on February 5, 1996. The ALJ also found that the respondent failed to select a treating physician as provided by § 8-43-404(5)(a), C.R.S. (1996 Cum. Supp.). Therefore, the ALJ determined that the right of selection passed to the claimant, and he selected Dr. Littleford to treat the injuries.
In support of his determination, the ALJ found that on the date of the altercation the claimant called his employer and spoke to Eric Scheuman (Scheuman), an Assistant Terminal Manger. The ALJ further found that during the conversation the claimant notified Scheuman that he was injured during the altercation and needed to time off work for the injuries. However, Mr. Scheuman did not refer the claimant to a physician. (Finding of Fact 2).
From conflicting evidence, the ALJ also found that the claimant made a “good faith attempt” to treat with Dr. Ladwig, who the respondent contends is the designated treating physician. However, the ALJ determined that the claimant believed the respondent was not tendering the services of a physician, because Dr. Ladwig’s office told him that Dr. Ladwig was not authorized to examine him. The claimant then sought treatment from Dr. Littleford. Under these circumstances, the ALJ determined that Dr. Littleford is an authorized treating physician, and ordered the respondent to pay for Dr. Littleford’s treatment of the claimant’s industrial injuries.
On review, the respondent contends that the evidence is legally insufficient to support a finding that the respondent’s statutory duty to select a physician was triggered before the claimant sought treatment from Dr. Littleford. We disagree.
Section 8-43-404(5)(a), provides that the right to select a treating physician passes to the claimant unless “in the first instance” the employer selects a physician to attend the injury. An employer has a duty to tender treatment as soon as “knowledge of the injury first comes to its attention.” Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). The employer has sufficient information to trigger its duty to tender medical treatment when the employer has:
“some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.”
Jones v. Adolph Coors Co. 689 P.2d 681 (Colo.App. 1984). Furthermore, oral notice is sufficient to trigger the employer’s duty to designate a provider. 689 P.2d at 684.
The respondent’s arguments notwithstanding, there is substantial evidence in the testimony of the respondent’s witness, Scheuman to support the ALJ’s pertinent findings. Scheuman stated that during his telephone conversation with the claimant on February 5, 1996, the claimant reported that he injured his back during the physical altercation with the co-worker in the employee break room, that he was not feeling well, and that he wanted some sick leave. (Tr. pp. 53, 54, 57). Furthermore, Scheuman admitted that he did not advise the claimant to seek medical treatment and did not refer the claimant to a physician at that time. (Tr. p. 57).
Moreover, we do not dispute the respondent’s assertion that injuries from some on the job fights are not compensable. However, the claimant’s report that he suffered injuries from an altercation with a co-worker on the respondent’s premises, during work hours together with his request for time off of work to attend to those injuries, is sufficient to support the ALJ’s implicit determination that the respondent had “some knowledge” indicating to a “reasonably conscientious manager, that the case might involve a potential compensation claim.” This determination is buttressed by the evidence that a co-worker tried to get some “workman’s comp forms” from the respondent for the claimant. (Tr. p. 35).
Under these circumstances, the ALJ could reasonably infer that the respondent had sufficient information to trigger the duty to refer the claimant to a treating physician or allow the claimant to select a physician. Accordingly, we must uphold the disputed findings, and it is immaterial that the record contains some evidence which, if credited, might support a contrary determination. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.) Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983) (findings based on substantial, albeit conflicting, evidence binding); Durocher v. Industrial Claim Appeals Office, 905 P.2d 4
(Colo.App. 1995) (substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence).
In any case, § 8-43-404(5)(a) contemplates that the employer will designate a physician who is willing to treat the industrial injury. 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 Waterpik v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication). When the designated physician refuses to treat for non-medical reasons, the employer must select a new treating physician or the right of selection passes to the claimant. Ruybal v. University Health Sciences Center, supra Tellez v. Teledyne Waterpik, supra.
Here, the ALJ credited the claimant’s testimony that he attempted to schedule an appointment with Dr. Ladwig, but was told that the examination was not authorized. Furthermore, the respondent does not assert and the ALJ did not find that the respondent selected a different physician to treat the claimant’s injuries. Under these circumstances, the ALJ did not err in finding that the right of selection passed to the claimant.
We also note that once the right of selection has passed to the claimant the employer may not recapture the right of selection. See Rogers v. Industrial Claim Appeals Office, supra. Accordingly, the fact that the claimant was ultimately seen by Dr. Ladwig on March 12, 1996, did not preclude the ALJ from finding that Dr. Littleford is an authorized treating physician.
To the extent the respondent has made other arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 19, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed June 24, 1997 to the following parties:
Larry Evilsizer, P.O. Box 470336, Aurora, CO 80047
Roadway Express, Inc., 14700 Smith Road, Aurora, CO 80011-2417
Caliber System, Inc., P.O. Box 5459, Akron, OH 44334-0459
Helmsman Management Services, Inc., Attn: Michelle Deangelo, Box 3539, Englewood, CO 80155-3539
Ted A. Krumreich, Esq., 1225 17th St., 38th Flr., Denver, CO 80202 (For the Respondents)
Clifford E. Eley, Esq., Pamela J. Adams Donnelly, Esq., 1777 S. Harrison St., No. 906, Denver, CO 80210 (For the Claimant)
By: _______________________________