W.C. No. 4-734-158.Industrial Claim Appeals Office.
September 3, 2008.
ORDER
The claimant and the respondents both seek review of a supplemental order of Administrative Law Judge Walsh (ALJ) dated May 28, 2008, that determined that the claimant sustained a compensable injury, that ordered the respondents to pay medical benefits, that determined that Dr. Hall was authorized to treat the claimant, and that denied the claimant’s request for temporary total disability benefits. We set aside the order insofar as it denied temporary total disability benefits and remand for further findings on that issue. Further, we dismiss the claimant’s petition to review insofar as it appeals the ALJ’s order that the claimant only injured his right hand and arm. Otherwise, we affirm the order in all other respects.
A hearing was held on the issues of whether the claimant sustained a compensable injury, and, if so, whether the respondents were liable for medical treatment and temporary total disability benefits, and whether Dr. Hall is an authorized treating physician. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On August 7, 2007, the claimant, who was employed as a finisher, was assigned to work on a job at the Air Force Academy. The claimant’s job duties at that location required him to have a security badge in order to obtain access to the secured facility. On August 7, 2007, the claimant was performing his work, which required him to drill holes into the side of a concrete elevator structure. The claimant was injured when the drill hit an object and twisted violently in his hands, injuring his hands and wrists. The claimant informed his supervisors of the injury
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immediately, and was told to put ice on the affected areas. Later that day the claimant informed the employer that he could only perform “light duty” as a result of the injury. While the claimant was working at the Air Force Academy he frequently left the facility and would be locked out until he could gain access from someone with a security pass. On August 7, 2007, the claimant left the facility seven times and was unable each time to obtain immediate access back to the location of his particular job. On August 8, 2007, the claimant was discharged because he had been locked out of the facility too frequently. A week later the claimant consulted his personal physician, Dr. O’Keefe, who informed him that he could not treat the injury because it was work-related. The claimant then telephoned the employer, who instructed him to complete some paperwork and who referred him to Concentra for treatment. On August 14, 2007, the claimant was seen by a nurse practitioner at Concentra and on August 20, 2007, he was seen by Dr. Boulder. He was subsequently referred to Dr. Eskestrand, a hand surgeon.
On September 5, 2007, the insurer filed a Notice of Contest, denying liability for the claim. The claimant was informed of this fact on September 11, 2007, when Concentra stated that they would not treat him and instructed him to contact the insurance company. The claimant telephoned the insurer and attempted to contact the claims adjustor; however, he did not receive a call back. The ALJ found that the insurer received notice that Concentra had refused to treat the claimant, and that the insurer failed to refer him to another provider. The ALJ found that Concentra’s refusal to treat the claimant was for non-medical reasons. The claimant was examined by Dr. Hall on October 30, 2007, and the ALJ concluded that Dr. Hall was authorized because the right of selection had passed to the claimant.
Based upon his factual findings, the ALJ concluded that the claimant had sustained a compensable injury. He ordered the respondents to pay for reasonable and necessary medical treatment rendered by Dr. Hall.
The ALJ also found that the claimant was responsible for his termination from employment. In this respect, he found that the claimant failed to take reasonable measures to insure his continued access to the secured facility. The ALJ therefore denied temporary total disability benefits based upon the termination statutes precluding temporary disability benefits where an injured worker is responsible for the termination of employment. See 38-42-103(1)(g), C.R.S. 2007; 38-42-105(4), C.R.S. 2007.
Both parties appealed the ALJ’s supplemental order. The claimant argues that the ALJ erred in denying temporary total disability benefits and in “limiting medical care to the right upper extremity.” The respondents argue that the ALJ erred in concluding that Dr. Hall was authorized.
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I.
A.
The claimant first argues that the ALJ erred in denying temporary total disability benefits. The claimant argues that there is no support in the factual record for the ALJ’s finding that locking himself out of the secured facility seven times in one day was “excessive” and warranted his discharge. Although our reasoning is different from that of the claimant, we conclude that the factual findings are insufficient to permit appellate review of this issue. Accordingly, we remand for further findings and for reconsideration of the question of the claimant’s entitlement to temporary total disability benefits based upon those findings.
The ALJ concluded that the claimant was barred from receiving temporary total disability benefits because he was responsible for his termination from employment. Sections 8-42-105(4), C.R.S. 2007, and 8-42-103(1)(g), C.R.S. 2007 (the termination statutes), contain identical language stating that in cases “where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury.” In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061
(Colo.App. 2002), the court held that the term “responsible” reintroduced into the Workers’ Compensation Act the concept of “fault” applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995). Hence the concept of “fault” as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context “fault” requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1995) opinion after remand 908 P.2d 1185 (Colo.App. 1985). That determination must be based upon an examination of the totality of circumstances. Id.
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781
(March 17, 2004). Accordingly, as with the previous factual determinations in this case, we must uphold the ALJ’s findings in this regard if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006; City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Again, this standard of review is narrow and requires us to view the evidence in the light most favorable to the prevailing party. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
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The dispositive issue then, in determining whether the claimant was at fault for his discharge is whether he committed some volitional act or exercised a degree of control over the circumstances of his termination. The ALJ did not couch his order specifically in those terms and there is no factual finding concerning whether he engaged in volitional conduct or exercised control over the circumstances of his discharge. It is true that the ALJ did find that the claimant “failed to take reasonable measures to ensure his ability have (sic) continued access to the secured facility.” Supplemental Findings of Fact, Conclusions of Law, and Order at 4, 20. Implicit in the finding that he “failed” to take the steps necessary to secure ready access to the facility is the determination that he had the opportunity to do so. This in turn implies that he had some control over the circumstances of his discharge, or that he engaged in volitional conduct in that respect. However, given the factual record in this matter, we are uncertain what the ALJ intended by his reference to “reasonable measures” to insure his ready access to the facility when he left for some reason. We are therefore reluctant to infer the factual findings supporting the ALJ’s determination that the claimant could have taken “reasonable measures” to secure reentry to the facility. Of course, we have no authority to weigh the evidence and make such factual findings. In our view, then, the ALJ’s factual findings are insufficient to permit us to review his determination that the claimant was responsible for his discharge from employment.
In this regard, we note that the factual record is susceptible to various inferences. One of the employer’s foremen, Todd Voshell, testified on behalf of the employer that only “one guy’s got a key” to the secured facility and if that person is “busy two stories up, you’re stuck on the outside.” Tr. at 54. Voshell also testified that persons in the claimant’s capacity were not given radios “like the foremen” and that it was necessary to “hunt down the guy with the card to open the door.” Tr. at 54. He stated that the situation was “a hassle for everybody” and that the Air Force, which controlled the secured facility, “made it harder on us to get in and out then what it should have been.” Tr. at 54-55. Another of the employer’s witnesses, Andrew Kremer, also a foreman, testified that any employee who went outside the loading dock when there was “nobody there unloading a truck” would be locked out by the automatic electronic lock. Tr. at 70. In response to a question from respondent’s counsel whether security “or somebody else” could have granted him reentry, Kremer responded that “[w]e don’t ever call security to get us in anywhere.” Tr. at 70. He also stated in response to counsel’s question regarding whether the door could be “propped . . . open” that although it had been done, the facility was secured and it was not an approved procedure. Tr. at 70. In this regard, we note that the claimant testified that propping open the door was a “security breach” and was prohibited. Tr. at 18. In any event, Kremer further testified that one plausible means of insuring reentry to the facility was to time one’s use of the restroom while “loading was going on so the door would have been open.” Tr. at 71. The owner of the
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employer’s business also testified that he made the decision to terminate the claimant’s employment and that it was pursuant to his policy that “a foreman does not have to work with an individual,” and in the event a foreman sends an employee to the office the employer attempts to place him with another crew. Tr. at 85. If the employer is unable to do so, the employee is discharged. The owner further testified that the claimant’s foreman informed him that the claimant was “intentionally timing his cigarette breaks . . . so that he would get locked out and not be able to perform his work.” Tr. at 86. The owner testified that the claimant was terminated because the owner “couldn’t place him with another crew.” Tr. at 86.
On remand the ALJ shall enter further factual findings sufficient to permit us to review the issue whether the claimant committed a volitional act or exercised a degree of control over the circumstances of his job separation. The ALJ shall reconsider the claimant’s entitlement to temporary total disability benefits in light of his further finding. Of course, this order should not be construed as dictating any particular result on remand.
B.
The claimant also argues that the “ALJ erred in limiting medical care to the right upper extremity.” The claimant argues that he testified that he injured both hands and that the order at least implies that it was only the right hand and wrist that were injured. However, even assuming, without deciding, that the ALJ intended to restrict the award of medical benefits to the right upper extremity, this portion of the order is not final. We therefore may not presently review it and that portion of the claimant’s petition to review must be dismissed without prejudice.
The Act grants us jurisdiction only to review an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty. . . .” Section 8-43-301(2), C.R.S. 2006. Thus, an order must satisfy the finality criteria set forth in that statute or we lack jurisdiction. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Instead, interlocutory orders are reviewable when appealed incident to a final order. American Express v. Industrial Commission, 712 P.2d 1132
(Colo.App. 1985). The legislative purpose underlying the restrictions on appellate review is to avoid piecemeal litigation. BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997).
It is not necessary that all aspects of a claim be ruled upon for an order to be “final.” However, the order must “finally dispose” of the issue presented. Bestway Concrete, Inc. v. Industrial Claim Appeals Office, 984 P.2d 680, 684 (Colo.App. 1999). An order may be partially final and reviewable and partially interlocutory. Oxford
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Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). Under these principles our jurisdiction is purely statutory and may not be conferred by waiver, consent, or any other equitable principle. Gardner v. Friend, 849 P.2d 817 (Colo.App. 1992). The absence of a final, reviewable order is fatal to our jurisdiction. Buschmann v. Gallegos Masonry, Inc., 805 P.2d 1193 (Colo.App. 1991).
Here, we note that although apparently there were some particular medical bills that were at issue, from treatment rendered both by Dr. Hall and providers at Concentra, no medical treatment was expressly denied by the order. We also note that the ALJ reserved any further issues for determination in the future. Thus, as we read the ALJ’s order, he contemplated that any disputes over the relatedness of future medical treatment, either for the claimant’s left hand or some other condition, would be adjudicated when those disputes arose. Under these circumstances, the ALJ’s order in this respect does not presently deny any specific benefit and is therefore not final and reviewable.
II.
The respondents also appealed the ALJ’s order and argue that the ALJ erred in ruling that Dr. Hall was authorized to treat the claimant’s injury. In connection with this argument the respondents contend that the ALJ’s finding that Concentra refused to treat the claimant for non-medical reasons is not supported by substantial evidence. Similarly, they contend that the finding that the insurer was on notice that Concentra refused to treat for non-medical reasons is not supported by substantial evidence. However, we are unpersuaded that the ALJ erred in this respect.
The respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). “Authorization” refers to the physician’s legal status to treat the injury at the respondents’ expense. Popke v. Industrial Claim Appeals Office, 797 P.2d 677 (Colo.App. 1997). Under § 8-43-404(5)(a), C.R.S. 2007 the employer or insurer is afforded the right in the first instance to select a physician to treat the injury. Clark v. Avalanche Industries Inc., W. C. No. 4-471-863 (March 12, 2004). However, § 8-43-404(5) implicitly contemplates that the respondent 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), affd., 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 respondent refuses to treat the claimant for non-medical reasons, and the respondent fails to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized.
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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 refused to treat the claimant for non-medical reasons, whether the insurer had notice of the refusal to treat, and whether the insurer “forthwith” designated a physician who was willing to treat the claimant are questions of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra; See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000); Medina v. La Jara Potato Growers, W.C. No. 4-128-326 (June 1, 1998). Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. 38-43-304(8), C.R.S. 2005; City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, it is apparently undisputed that the employer referred the claimant to Concentra for medical treatment for his compensable injury. The ALJ found that on September 11, 2007, the claimant was informed that the insurer had contested his claim when “Concentra informed him that they could not see him and that he needed to call his insurance company.” This factual finding is fully supported by the claimant’s testimony that he telephoned Concentra after having been instructed to do so by a nurse in Dr. Eskestrand’s office and was told that they could not see him and that he should contact his insurance company. Tr. at 21. Because Concentra’s refusal to treat the claimant in conjunction with their instructions to contact the insurer came immediately upon the insurer’s denial of the claim, the ALJ inferred that the insurer had notified Concentra that it would not pay the costs of the claimant’s medical treatment. In our view, this is a reasonable inference from the factual record, as is the further inference that Concentra therefore refused to treat the claimant for non-medical reasons.
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We are also unpersuaded by the respondents’ argument that the record lacks support for the finding that the insurer was notified of Concentra’s refusal to treat the claimant. As noted, in our opinion the ALJ could plausibly infer from the sequence of events and the factual circumstances of Concentra’s denial of treatment to the claimant that it was the insurer’s contest of the claim that prompted that refusal to treat. Under these circumstances it was also a plausible inference that the insurer had notice that Concentra would refuse to treat the claimant and that they had the legal obligation to forthwith designate a provider willing to provide treatment, or cede the right of selection to the claimant. Finally, we note that given our resolution of this issue, it is unnecessary for us to determine whether the insurer’s failure to respond to the claimant’s attempts to contact it constituted a waiver of the right to receive notice of Concentra’s refusal to treat.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 2008, is set aside insofar as it denied temporary total disability benefits and the matter is remanded for additional findings and conclusions of law regarding that issue.
IT IS FURTHER ORDERED that the claimant’s petition to review the ALJ’s order dated May 28, 2008, is dismissed only insofar as it contests the portion of the ALJ’s order confining the injury to the right hand and wrist.
IT IS FURTHER ORDERED that the ALJ’s order dated May 28, 2008 is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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JIMMIE GARRETT, 3626 BRADY BLVD, COLORADO SPRINGS, CO, 80909 (Claimant).
MCNELLY CONSTRUCTION COMPANY, INC., Attn: MS DANNIELLE HINTZ, COLORADO SPRINGS, CO, (Employer).
AMERICAN COMPENSATION INSURANCE CO., Attn: MR SCOTT SMITH, C/O: RTW, INC., MINNEAPOLIS, MN, (Insurer).
ALEXANDER RICCI. PC, Attn: WILLIAM A ALEXANDER JR., ESQ., COLORADO SPRINGS, CO, (For Claimant).
THOMAS POLLART MILLER LLC, Attn: DOUGLAS A THOMAS, ESQ/KAREN A LINDEMAN, ESQ, GREENWOOD VILLAGE, CO, (For Respondents).
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