IN THE MATTER OF THE CLAIM OF VICKIE LAWRENCE, Claimant, v. THE WATKINS COMPANY, INC. d/b/a TOMAHAWK TRUCK STOPS, Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.
W.C. No. 4-362-519Industrial Claim Appeals Office.
January 27, 2000
[1] ORDER OF REMAND
[2] The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) insofar as it requires them to pay for medical treatments provided by Dr. Watts and Dr. Johnson. The respondents contend the claimant failed to prove that the treatment rendered by these physicians was authorized. We set the order aside and remand for entry of a new order.
[3] The claimant sustained a compensable shoulder injury on August 11, 1997. Although the claimant reported the injury to her supervisor, she was not referred to a physician. Instead, the ALJ found the claimant “presented herself” to Dr. Bedi on September 3, 1997. Dr. Bedi recommended diagnostic tests, steroid injections, and physical therapy. However, Dr. Bedi’s September 3 office note states the claimant agreed to “hold off on all that until Workman’s Comp takes over this case.”
[4] The ALJ found the employer “denied medical care” to the claimant, and the claimant did not seek any further treatment until January 1999 because she had no medical insurance. Thereafter, the claimant sought treatment from Dr. Watts, who apparently referred her to Dr. Johnson. These physicians are located in Iowa where the claimant moved.
[5] The ALJ noted the respondents stipulated they would pay Dr. Bedi’s bills. The ALJ also found that Dr. Watts and Dr. Johnson were authorized treating physicians because “the employer denied Claimant medical care after the August 1997 injury.” (Conclusion of Law 2).
[6] On review, the respondents contend the ALJ erred in finding that Dr. Watts and Dr. Johnson are authorized treating physicians. The respondents argue that once the claimant selected Dr. Bedi as the authorized treating physician she was not permitted to retain the services Dr. Watts and Dr. Johnson without seeking approval from the insurer or the Division of Workers’ Compensation. Because the ALJ misapplied the law in resolving the authorization issue, we remand for entry of a new order.
[7] Here, it is undisputed that the right of first selection passed to the claimant when the employer failed to designate a treating physician at the time the claimant reported the injury to her supervisor. However, once the claimant selected Dr. Bedi as the authorized physician, she was not entitled to retain the services of additional physicians without procuring the respondents’ approval or the permission of the Division of Workers’ Compensation.
See Yeck v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA2497, August 19, 1999)
Pickett v. Colorado State Hospital,
32 Colo. App. 282,
513 P.2d 228 (1973); §
8-43-404(5)(a), C.R.S. 1999. Moreover, the employer’s refusal to designate a physician, and the respondents’ denial of the claim, did not relieve the claimant of the responsibility to seek permission to change physicians after she selected Dr. Bedi. To the contrary, the respondents retained their interest in being apprised of the course of treatment for which they might ultimately be held liable, even though they denied liability for the claim.
Yeck v. Industrial Claim Appeals Office, supra.
[8] It follows the ALJ misapplied the law in this case. The mere fact that the employer “denied treatment” to the claimant did not authorize the claimant to change physicians from Dr. Bedi to Dr. Watts and Dr. Johnson without obtaining the requisite statutory approval.
[9] The claimant argues that her selection of Dr. Bedi was incomplete under the rationale of
Ruybal University of Colorado Health Sciences Center,
768 P.2d 1259 (Colo.App. 1988), and therefore, she was free to select Dr. Watts and Dr. Johnson. I
Ruybal, the court determined that where the claimant selected a treating physician, but the physician refused to continue treatment because the medical plan did not cover workers’ compensation injuries, the claimant “did not fully exercise her right to select her own treating physician.” Instead, the court held that the predecessor to §
8-43-404(5)(a) must be interpreted “as permitting claimant to select a physician who is willing to treat her.”
Id. at 1260;
see also, Yeck v. Industrial Claim Appeals Office, supra (interpreting
Ruybal as holding that the claimant is not required to seek permission to change physicians where the selected physician refused to treat).
[10] In our view, the ALJ’s order did not determine whether Dr. Bedi
refused to treat the claimant for financial reasons, or whether the claimant simply
elected to forego further treatment until such time as she could establish compensability in the workers’ compensation case. In our view, the evidence, particularly Dr. Bedi’s September 3 office note, is subject to conflicting inferences on this point. Therefore, the matter must be remanded to the ALJ to resolve conflicts in the evidence and determine whether the claimant was entitled to change physicians to Dr. Watts and Dr. Johnson based on Dr. Bedi’s refusal to treat for nonmedical reasons.
[11] The claimant also argues that the respondents “acquiesced” in her selection of Dr. Watts and Dr. Johnson. However, the ALJ made no findings of fact in this regard, and the evidence does not compel such a conclusion as a matter of law. Therefore, the ALJ should address the issue on remand.
[12] Finally, the claimant argues that, if Dr. Bedi is deemed the authorized physician, the evidence justifies a change of physician from Dr. Bedi to Dr. Watts and Dr. Johnson. However, the issue of a discretionary change of physician was not raised to the ALJ, and may not now be raised on appeal.
Pacheco v. Roaring Fork Aggregates,
897 P.2d 872 (Colo.App. 1995).
[13] IT IS THEREFORE ORDERED that the contested portion of the ALJ’s order dated June 7, 1999, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
[14] INDUSTRIAL CLAIM APPEALS PANEL
[15] ___________________________________ David Cain
[16] ___________________________________ Kathy E. Dean
[17] Copies of this decision were mailed January 27, 2000 to the following parties:
[18] Vickie Lawrence, Route 5, Box 37, Bloomfield, IA 52537
[19] The Watkins Company, Inc. d/b/a Tomahawk Truck Stops, 181 E. 56th Ave., #600, Denver, CO 80216-1766
[20] Curt Kriksciun, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
[21] Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
[22] Michele Stark Carey, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
[23] BY: A. Pendroy
