W.C. No. 4-634-648.Industrial Claim Appeals Office.
December 19, 2005.
ORDER OF REMAND
The respondents seek review of an order dated August 11, 2005 of Administrative Law Judge Felter (ALJ) that found the respondents abandoned the claimant’s medical treatment and concluded that the right of selection therefore passed to the claimant. We affirm the order in part, set it aside in part and remand for entry of a new order.
The ALJ’s pertinent findings of fact are as follows. On November 29, 2004 the claimant sustained a hernia while working for the employer. The employer directed her to see Dr. Wiggins. The claimant reported to Dr. Wiggins for examination and treatment the day after the injury. Dr. Wiggins diagnosed a suspected hernia and recommended evaluation due to persistent pain and possible need for surgical repair.
Following their investigation the respondents denied the claim and filed a Notice of Contest on November 9, 2004. On the same day the employer notified the claimant that it was contesting her claim and that she could request medical leave until such time as a physician released her to return to employment without restrictions.
Upon learning that the respondents were denying her claim, the claimant was unable to obtain further medical care from Dr. Wiggins, because the respondents refused to authorize or pay for the treatment. The ALJ specifically found that it was at this point that the respondents “abandoned” the claimant’s medical treatment within the workers’ compensation context.
The claimant then contacted her own physician, Dr. Thieman for advice on which surgeon to consult for treatment of her suspected hernia. Dr. Thieman referred her to Dr. Hohm, who performed the surgical repair on January 18, 2005.
Based on these findings the ALJ determined that once the respondents abandoned the claimant’s medical treatment on November 9, 2004 the claimant was entitled to select a physician. Accordingly, the ALJ found Dr. Thieman and Dr. Hohm to be authorized medical providers and also found that all of the claimant’s medical treatment for her inguinal hernia was within the authorized chain of referrals.
On review, the respondents contend that their initial denial of liability did not abrogate its right to select the treating physician under the statute. We agree that the ALJ may have misapplied the law with regard to the claimant’s right of selection.
Section 8-43-404(5)(a), C.R.S. 2005, 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). This right of selection is not conditioned on an admission of liability, and we do not believe that such a condition may be read into the statute. The mere fact that the respondent denied liability, after the claimant initially sought treatment from Dr. Wiggins, does not extinguish its interest in being apprised of the course of treatment for which it could ultimately be held liable. See Colorado Fuel and Iron Corp. v. Industrial Commission, 129 Colo. 353, 269 P.2d 1070 (1954) (the party responsible for paying medical bills has a “legal right to know what is being done”). Dominguez v. Monfort W.C. 3-857-241
(February 27, 1991).
The respondents further contend that the ALJ erred in finding that they “abandoned” the claimant’s medical treatment. The respondents assert that there is a lack of substantial evidence that they refused to authorize or pay for treatment, or that Dr. Wiggins refused treatment, or that respondents knew of any refusal of treatment from Dr. Wiggins.
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 independent 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. The respondent must appoint a new treating physician “forthwith.” See Lutz v. Industrial Claim Appeals Office, supra; 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, whether the respondents knew of that refusal to treat, and whether there had been a referral are ordinarily questions of fact for determination by the ALJ. See Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990) (after emergency treatment ended claimant “required to notify her employer and give it a reasonable opportunity to furnish” subsequent treatment); Amorelli v. Amorelli Plumbing and Heating, Inc., W.C. No. 4-436-946
(September 26, 2001) (question of whether employer timely tendered services of physician after notice of an injury is one of fact). 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. § 8-43-301(8), C.R.S. 2005. Gonzales v. Crowley County
W.C. No. 4-250-651 November 27, 2000.
We recognize that if the physician selected by the respondents refuses to treat the claimant for non-medical reasons, and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant, with the result being that the physician selected by the claimant is authorized to treat the injury. See Ruybal v. University Health Sciences Center, supra.; Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication); Buhrmann v. University of Colorado Health Sciences Center, W.C. No. 4-253-689 (November 4, 1996).
However, the respondents are entitled to a reasonable period of time to select a replacement physician and the duty to tender the services of a substitute physician does not arise until the respondents are aware that the designated physician refused to provide treatment for non-medical reasons. See Bilyeu v. Babcock Wilcox, Inc., W.C. No. 4-349-701 (July 24, 2001); Tellez v. Wal-Mart Stores Inc., supra.; Wesley v. King Soopers,
W.C. No. 3-883-959 (November 22, 1999); Rogan v. United Parcel
W.C. No. 4-264-157 (June 12, 2002).
Here, it is undisputed that the employer exercised its statutory right to select the claimant’s treating physician by referring her to Dr. Wiggins. The claimant was not free to change treating physicians without the consent of the respondents or the Division. See Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973) ; Wishbone Restaurant v. Mova, 162 Colo. 30, 424 P.2d 119 (1967). The ALJ found that upon discovering that respondents were denying her claim, the claimant was unable to obtain further medical care from Dr.Wiggins because the respondents refused to authorize or pay for this treatment. At this point, the ALJ found that respondents abandoned the claimant’s medical treatment within the workers’ compensation context. Findings of Fact, Conclusions of Law, and Order at 5, ¶ 24. The ALJ concluded that on December 9, 2004, the employer denied the claimant’s injury as not work-related and the employer thereafter failed and refused to offer the claimant further medical treatment for her work-related condition. Findings of Fact, Conclusions of Law, and Order at 4, ¶ d. However, the ALJ’s findings of fact are insufficient to permit review of the evidentiary basis for this determination.
We note that the claimant testified she sent Dr. Wiggins a request for the name of the specialist he referred to in her first visit, in order that she could proceed promptly with the operation, and that she did not receive a response. Tr. at 19-22. It may well be that the ALJ found that the claimant presented sufficient evidence to establish that the authorized physician refused treatment for non-medical reason; however, he made no findings pertinent to such a determination.
From the ALJ’s statements at the conclusion of the hearing it appears that he understood the law to be that the claimant had the right to seek further treatment since the respondents had denied the claim, Dr. Wiggins wouldn’t treat any further, and the respondents did not make any further medical referral. See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988) (may ascertain ALJ’s intent from his oral order). (Tr. at 104) We note in this regard that the ALJ sustained objections to questions concerning why no referrals were made, and whether the employer had denied the worker’s compensation claim at the time referral for surgery was requested. Tr. at 18-20.
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).
In light of this evidence, and in the absence of more specific findings, we cannot determine whether the ALJ found that Dr. Wiggins refused to treat the claimant for non-medical reasons, whether and, if so, when the respondents were notified of this refusal to treat, and whether the respondents failed to appoint a new treating physician. Since the findings are insufficient to support the ALJ’s conclusion that the respondents “abandoned” the claimant’s medical treatment, that portion of the order must be set aside and the matter remanded to the ALJ for additional findings and issuance of a new order concerning this issue.
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. Wiggins refused to treat the claimant for non-medical reasons. If the ALJ determines Dr. Wiggins refused to treat for non-medical reasons, the ALJ shall determine if and when the respondents were on notice of this fact and whether the respondents designated a physician who was willing to treat the claimant.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 11, 2005, is set aside insofar as it found that Dr. Thieman, Dr. Hohm and Rocky Mountain Surgical Specialists, were authorized. On this issue, the matter is remanded for entry of a new order based on the existing record, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Tom Schrant
Le Ann Haverty, 30851 Buckhorn Rd., Bellvue, CO 80512-8307, Sam’s Wholesale Club, 1200 E. Eisenhower Blvd., Loveland, CO 80537, Shirley Kintner, Claims Management, Inc., P.O. Box 1288, Bentonville, AR 72712-1288, Darby L. Hoggatt, Esq., P.O. Box 271425, Fort Collins, CO 80527-1425 (For Claimant).
Richard A. Bovarnick, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents).