W.C. No. 4-524-325.Industrial Claim Appeals Office.
September 9, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) that awarded medical benefits in the form of treatment from Dr. Furman for the claimant’s compensable occupational lung disease, and denied medical benefits for treatment prior to December 13, 2001. The claimant contends that the ALJ erred in denying medical benefits prior to the time the employer received notice of the occupational disease. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant was employed at the Rocky Flats nuclear weapons facility from June 1953 until January 1, 1991, during which period he was heavily exposed to asbestos fibers on the job. As a result of the exposure, the claimant developed lung cancer. The claimant’s last injurious exposure to the asbestos that caused his lung cancer was in the mid-1980s, while he was employed by Rockwell International (Rockwell), which was insured by Travelers Property and Casualty Company (collectively the respondents).
Rockwell’s medical director, Dr. Furman, referred the claimant to National Jewish Center for an examination pursuant to a program implemented by the employer to provide health screenings for former workers. The ALJ expressly found, however, that this referral was for purposes of evaluating the claimant’s exposure to plutonium, and was not to diagnose, evaluate, or treat any condition related to the claimant’s occupational exposure to asbestos. During the medical evaluation a chest x-ray of the claimant revealed an abnormality, which prompted further diagnostic tests that were performed in May 2000. Surgery was performed to cure the claimant’s lung cancer on May 31, 2000, and a course of follow-up treatment was pursued.
However, the ALJ found that the claimant was not aware of the occupational causes of the lung cancer until “well after” his return visit to National Jewish Center, when his doctor reviewed further medical records and informed him of the occupational nature of the disease. The claimant filed a workers’ claim for compensation on December 13, 2001. The ALJ found that Dr. Furman was authorized and that, prior to the date of the claim for compensation, the respondents had no notice that the claimant was suffering from an occupational disease.
Based upon these factual determinations the ALJ ordered the respondents to pay for reasonable and necessary medical care to cure and relieve the claimant from the effects of the occupational disease. The ALJ also found Dr. Furman was authorized, but concluded the respondents are not liable for any medical treatment provided by any other doctor prior to December 31, 2001.
On appeal the claimant contends that it is uncontested the treatment he received for his lung cancer was reasonable and necessary, and that it is unjust to relieve the respondents from liability for that treatment merely because it occurred before the claimant was aware of the compensable nature of his condition. The claimant argues that it is unreasonable to expect him to provide the employer with notice prior to the time he had it himself, and that the Colorado Workers’ Compensation Act (Act) should be read to require the respondents to pay for the medical treatment he received prior to the date on which the employer had notice of the compensable condition. We are unpersuaded the ALJ erred.
Where the claimant sustains an occupational disease, the insurer on the risk at the time that medical expenses are incurred is liable for those medical benefits. Royal Globe Insurance Co. v. Collins, 723 P.2d 731. However, the insurer is liable only for emergency and for “authorized” medical treatment. Sims v. Industrial Claim Appeals Office, 797 P.2d 777
(Colo.App. 1990). Authorization refers to the physician’s legal authority to treat the claimant and expect to receive payment from the insurer for services that are reasonable and necessary to treat the industrial injury. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 507
(Colo.App. 1995). Under § 8-43-404(5)(a), C.R.S. 2004 the employer has the right in the first instance to designate the authorized provider to treat the claimant’s compensable condition. The rationale for this principle is that the respondents may ultimately be liable for the claimant’s medical bills and, therefore, have an interest in knowing what treatment is being provided. Andrade v. Industrial Claim Appeals Office,
___ P.3d ___ (Colo.App. No. 04CA1691, Aug. 11, 2005). Consequently, if the claimant obtains unauthorized medical treatment, the respondents are not required to pay for it. § 8-43-404(7), C.R.S. 2004; Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
In order to assert the statutory right to designate a provider in the first instance, the employer has an obligation to name the treating physician forthwith upon receiving notice of the compensable injury Rogers v. Industrial Claim Appeals Office, 746 P.2d 545 (Colo.App. 1987). The employer’s duty is triggered once the employer or insurer has some knowledge of facts that would lead a reasonably conscientious manager to believe the case may involve a claim for compensation. See Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984).
A physician’s status as “authorized” and, relatedly, whether particular treatment was provided by an authorized physician are generally questions of fact for resolution by the ALJ. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Accordingly, we must uphold the ALJ’s findings concerning these questions if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2004. Insofar as the evidence is in conflict or subject to contrary inferences, it is the ALJ’s sole responsibility to weigh the evidence and resolve those conflicts, and we must defer to the ALJ’s determinations. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Here, the ALJ’s finding that the treatment provided for the claimant’s cancer prior to December 13, 2001 was unauthorized is supported by the record. The claimant concedes that he did not notify the employer of his claim until it was filed on December 13, 2001. Moreover, we do not understand the claimant to argue that the employer had been provided notice of the claimant’s compensable condition through some other source. In any event, the record does not support such an argument. Hence, the ALJ’s determination that the claimant’s medical treatment prior to December 13, 2001, was not authorized is fully supported by the record.
The claimant argues, however, that § 8-43-102(1.5)(b)(2), C.R.S. 2004, § 8-42-101, C.R.S. 2004, and § 8-43-404(5), C.R.S. 2004 are potentially conflicting and should be harmonized to provide that the respondents are liable for reasonable and necessary medical treatment provided prior to notice of the industrial nature of the condition. He concedes that the employer’s right to select a provider is statutorily triggered by notice or knowledge of the injury. However, he argues that medical treatment rendered prior to that time should be governed by a “general rule” that the employer must provide medical treatment for the compensable condition. We disagree.
The claimant’s argument is grounded in the “public policy,” admittedly incorporated into the Act, that the respondents are liable for medical treatment reasonably necessary to treat the compensable condition. He contends that it is unfair to shift the cost of such treatment to the claimant in cases where he could not possibly have given notice of the injury “before he knew that his cancer was caused by his employment.”See Claimant’s Brief in Support of Petition for Review at 9. However, whatever the merits of the claimant’s argument that the Act is unfair or that a particular result is consistent with public policy, in our view this issue is resolved by the plain language of § 8-43-404(7), C.R.S. 2004. That statute provides that “[a]n employer or insurer shall not be liable for treatment provided pursuant to article 41 of title 12, C.R.S., unless such treatment has been prescribed by an authorized treating physician.” In the present case the ALJ’s denial of medical benefits as unauthorized is supported by the record and by applicable law. The Act does not contain a provision generally extending authorization retroactively in these circumstances, and we may not read that non-existent provision into it. See Snyder v. Industrial Commission, 138 Colo. 523, 335 P.2d 543 (1955).
The claimant also argues that an “exception” to the law regarding authorization ought to be created where “extraordinary circumstances provide justification” for such a principle. The claimant notes that such an exception has already been created in cases of emergency treatment, and argues that the present situation is analogous. As noted, however, we are constrained by the plain language of the Act and view the resolution of this issue as governed by well-established statutory law and authority construing it.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 18, 2003 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
Kenneth Freiberg, Berthoud, CO, Albert A. Jerman, Broomfield, CO, Laura Glavich, Travelers Property and Casualty Company, Denver, CO, Michael A. Patrick, Esq., Berthoud, CO, (For Claimant).
Scott M. Busser, Esq., Denver, CO, (For Respondents).