W.C. Nos. 4-427-352 4-370-697Industrial Claim Appeals Office.
May 17, 2001
FINAL ORDER
GAT Aviation Services (GAT) and Old Republic Insurance (collectively, respondents) have appealed the order of Administrative Law Judge Gallegos (ALJ) which determined that the claimant suffered a second injury while employed by GAT, and ordered the respondents to pay temporary disability benefits. The respondents also contest the ALJ’s determination that Dr. MacAuley is an authorized treating physician. We affirm.
The claimant suffered a compensable injury to his left knee in 1997, while employed by AMR Services Corporation (AMR). The claimant underwent arthroscopic surgery and an exercise program, and the injury eventually resolved. The ALJ found the claimant was able to perform all his job duties without restrictions.
The claimant subsequently began working for GAT. The ALJ found that on or about June 25, 1999, the claimant suffered a second injury to his left knee when it was struck by a transporter operated by the claimant’s supervisor. The ALJ found the supervisor was aware of the injury, but did not refer the claimant for medical treatment or file a report of injury. On June 28, 1999, the claimant sought treatment at HealthOne, the medical provider for AMR. The claimant was released to return to modified work, and then self-restricted his activities until July 1, 1999, when the claimant verbally reported the injury to his supervisor. The supervisor referred the claimant to the Denver International Airport (DIA) Clinic. The claimant went to the DIA Clinic, and a clinic receptionist contacted an individual with AMR, who told the receptionist that the claimant’s 1997 workers’ compensation case was closed. The receptionist also contacted the station manager from GAT. However, the station manager believed the claimant was being treated for the 1997 injury, and told the claimant he was “on his own” as far as payment for treatment. On July 1, 1999, the DIA Clinic released the claimant to return to work with restrictions, but the claimant was advised that GAT had no work within the restrictions. The claimant did not return to regular or modified work with GAT.
On July 13, 1999, GAT’s station manager spoke with the claimant and learned of the claimant’s injury. However, the ALJ found that the station manager did not refer the claimant to a medical provider. The claimant consulted Dr. MacAuley, who referred the claimant to Dr. Parker, an orthopedic surgeon. Upon performing arthroscopic surgery, Dr. Parker discovered a medial meniscus tear which the ALJ found was not present at the time of the surgery for the 1997 injury. Crediting Dr. MacAuley’s opinion, the ALJ found the June 1999 injury was a new injury, as opposed to an aggravation or worsening of the 1997 injury. Further, the ALJ found the medical meniscus tear could only have occurred as the result of a traumatic event, and the only traumatic event was the transporter striking the claimant’s knee.
The ALJ concluded that the claimant met his burden of establishing a new injury with GAT. Further, the ALJ concluded the right of selecting the medical provider passed to the claimant, who chose Dr. MacAuley, when GAT’s station manager did not refer the claimant to a medical provider. Accordingly, the ALJ determined Dr. MacAuley is authorized. The ALJ also determined the claimant is entitled to temporary total disability benefits from July 1, 1999 until September 27, 1999, when the claimant began working for another employer.
On appeal, the respondents contend there is not substantial evidence to support the determination that the claimant was injured on June 25, 1999, when he was struck by a transporter driven by his supervisor. The respondents rely on evidence that the claimant’s supervisor was not at the workplace on June 25, 1999, and that the claimant did not initially report a new injury when he was seen at the DIA Clinic. The respondents contend the claimant’s testimony is so overwhelmingly rebutted by hard, certain evidence directly to the contrary, that the ALJ erred as a matter of law in crediting the claimant’s testimony. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We disagree.
Initially, we note the ALJ found the injury occurred “on or about” June 25, 1999. However, insofar as the ALJ was persuaded the injury occurred on June 25, we perceive no error.
It is true that the claimant’s testimony is internally inconsistent. Moreover, witnesses testified that the claimant initially attributed his worsened knee condition to the 1997 injury, and did not mention an incident in June 1999 until treatment was denied for the 1997 injury. There was also testimony that the incident could not have occurred at the time and in the manner claimant stated. However, it is the ALJ’s prerogative to assess credibility and resolve conflicting inferences, see Wal-Mart Stores v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999), and we are not persuaded the ALJ was compelled to resolve the conflicts here differently. Although the employer’s time records indicated the claimant’s supervisor was traveling from Denver to San Diego on June 25, there was also testimony that the supervisor could have engaged in that travel and still been present in the workplace for part of the day. See March 10, 2000 Transcript, pp. 76-77. Further, the time record is merely a handwritten entry that the supervisor was in “travel” on June 25, accounting for eight hours. However, the station manager conceded that the employer paid eight hours for travel time, even if the travel itself did not take eight hours. Respondent’s Exhibit Y. Consequently, we cannot conclude this is “hard, certain” evidence which overwhelmingly rebuts the claimant’s testimony to the contrary. See Halliburton Services v. Miller, supra; Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). The ALJ was free to rely on the portion of the claimant’s testimony found to be credible. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The respondents also contend the ALJ erred in determining that Dr. MacAuley is an authorized physician. Again, we disagree.
Under § 8-43-505(5)(a), C.R.S. 2000, the employer has the right to select the treating physician. If the employer fails to tender a physician at the time of the injury, the employee has the right to select the treating physician. Here, the respondents argue that the employer selected the DIA clinic when the claimant notified his supervisor of the injury. However, as we understand the ALJ’s order, he found the supervisor was aware of the claimant’s injury on the date it occurred, and told the claimant to sit down for a while, but did not refer the claimant to a physician until June 30, 1999, when the claimant verbally reported it. Findings of Fact 4, 5, 8. The respondents have not contested these findings which, in any event, are supported by substantial evidence. Therefore, we must uphold them. See §8-43-301(8), C.R.S. 2000. Moreover, the findings support the conclusion that Dr. MacAuley is authorized, although for reasons different than those stated by the ALJ.
As a result of the supervisor’s initial failure to refer the claimant to a physician, the right to select passed to the claimant and became vested. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987); see also Brickell v. Business Machines, Inc., 817 P.2d 537 (Colo.App. 1990) (by failing to tender medical care when knowledge of the claimant’s injury first came to their attention, the respondents waived their right to select a treating physician). After that point, the employer could not recapture its initial right, even though the claimant did not choose Dr. MacAuley until after the station manager subsequently failed to refer the claimant to a physician. See Rogers v. Industrial Claim Appeals Office, supra.
As a result of this resolution, we need not determine whether the DIA Clinic refused to treat the claimant. Moreover, we conclude the cases cited by the respondents are inapposite. Insofar as the respondents have made further arguments, we do not find them persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 7, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Dona Halsey
__________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(1) and 307, C.R.S. 1997.
Copies of this order were mailed May 17, 2001 to the following parties:
Bruce Hall, Sr., 19299 E. 22nd Dr., Aurora, CO 80011
AMR Services Corp, Denver International Airport, 9116 Pena Blvd., Denver, CO 80249-6346
GAT Airline Supports Services, GAT Airline Support Services, 8525 Areo Dr., Mobile, AL 36608
Insurance Company of he State of Pennsylvania, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Old Republic Insurance, Connie Rivera, GAB Robbins, P.O. Box 370750, Denver, CO 80237-0750
Tom Corrigan, ITT Specialty Risk Services, P.O. Box 221700, Denver, CO 80222
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Cindy Slevin, Esq. and Richard W. Pruett, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents GAT Airline Support Services and Old Republic Insurance)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents AMR Services Corporation and Insurance Company of the State of Pennsylvania).
By: A. Pendroy