W.C. No. 4-505-716.Industrial Claim Appeals Office.
February 10, 2005.
FINAL ORDER
The self-insured respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) which ordered it to pay for a gymnasium membership and mileage expenses which the claimant incurred to visit a physician. The respondent argues the gymnasium membership was neither authorized nor reasonable and necessary. The respondents contend the travel to visit the physician was not reasonable and necessary. We affirm.
The claimant sustained a compensable knee injury on May 14, 2001, while employed in Colorado. The claimant’s authorized treating physician (ATP) was Dr. Fisher, located in Grand Junction, Colorado. In June 2002 the claimant was placed at maximum medical improvement (MMI) and the respondent admitted liability for ongoing medical benefits pursuant t Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). After MMI the claimant continued medical treatment which included physical therapy, self-directed exercises at a facility known as St. Mary’s Life Center, and follow up visits to the doctor’s office.
The claimant was married and on June 10, 2003, moved to Twin Bridges, Montana to live with her new husband. On June 12, the claimant communicated with the respondent’s claims adjuster and requested authorization of a local physician, Dr. Downey, to continue treatment. The adjuster refused to authorize Dr. Downey and indicated the respondent would select another local physician. However, by July 22, 2003, the respondent had not designated a Montana ATP and the claimant drove 1400 miles round trip to visit Dr. Fisher in Colorado. The respondents refused to pay the mileage expense for this trip.
After the claimant returned to Colorado the first adjuster proposed that the claimant see Dr. Lehman in Montana. However, this physician specialized in spine conditions and declined to treat the claimant.
In September 2003 the claimant joined Gold’s Gym in Bozeman, Montana, a facility located 204 miles round trip from her home. The Gold’s Gym offers the same type of Nautilus exercise equipment which the claimant used in Colorado. On October 31, 2003, the claimant wrote a letter to her attorney advising him of the respondent’s failure to appoint a treating physician and advising that she had joined the Gold’s Gym. The claimant testified that her attorney agreed to send the letter to the respondent’s adjuster, and the respondent produced the letter as one of its exhibits. (Tr. P. 31; Respondent’s Exhibit A, Pp. 3-4). From this evidence the ALJ inferred the claimant’s attorney forwarded the letter and the respondent was aware of the claimant’s action in joining Gold’s Gym. (Finding of Fact 7).
In early January 2004 the respondent referred the claimant to Dr. DiGiovine. However, this physician declined to see the claimant because she was not an imminent surgical candidate. On January 23, 2004, the respondent referred the claimant to Dr. Hendrickson, located in Sheridan, Montana. The claimant was finally examined by Dr. Hendrickson on April 27, 2004. Dr. Hendrickson prescribed exercise at a gym with Nautilus equipment for an indefinite period of time. On July 9, 2004, Dr. Hendrickson issued a written statement endorsing the claimant’s use of Gold’s Gym and stating that Bozeman and Butte are equal distances from her home, and “both have comparable facilities and both are the closest gyms available for her use.”
The ALJ credited the “gym recommendations” of Dr. Hendrickson and Dr. Fisher, finding the claimant’s use of the Gold’s Gym to be reasonable and necessary medical treatment. The ALJ further concluded the respondent’s delay from June 12, 2003, to January 23, 2004, in authorizing a Montana ATP, as well as the respondent’s knowledge that the claimant joined Gold’s Gym in Bozeman, estopped the respondent from “objecting to the claimant’s failure to obtain a contemporaneous physician referral” to the facility. (Finding of Fact 7; Conclusions of Law 2, 3). Similarly, the ALJ concluded that the respondent’s failure to promptly designate an ATP in Montana rendered the claimant’s July 2003 visit to Dr. Fisher reasonable and necessary, and ordered the respondent to reimburse the claimant’s mileage expense.
I.
On review, the respondent contends the ALJ erred in ordering them to pay for the claimant’s membership in Gold’s Gym and the associated travel expense. Primarily, the respondent argues Gold’s Gym was not an authorized provider because the claimant was not referred to that facility by any ATP before Dr. fisher’s “retroactive” referral of April 8, 2004. The respondent asserts that Dr. Fisher’s prescription issued is not relevant because he was no longer an ATP. We are not persuaded by this argument.
Pursuant to Grover v. Industrial Commission, supra, the respondent is required to provide medical treatment which is reasonable and necessary to relieve the claimant’s symptoms and prevent deterioration of her condition. Section 8-42-101(1)(a), C.R.S. 2004; Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999). Of course, reasonable and necessary treatment must be rendered by an authorized provider or the respondent is not liable to pay for the treatment. “Authorization” refers to a provider’s legal authority to treat the claimant, and once the respondent designates an ATP the claimant may not retain additional providers without obtaining permission from the respondent or the ALJ. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993).
However, there are exceptions to the requirement that the claimant obtain permission before changing providers or retaining additional providers. The claimant may retain additional providers if the respondent “expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion, or, with full knowledge over a sustained period of time, has failed to object to claimant’s change of physician.” Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Thus, in Brickell v. Business Machines, Inc., 817 P.2d 536, 539 (Colo.App. 1990), the court held the respondents, by continued acquiescence, “waived any objection to claimant’s change of physician when, after an initial course of chiropractic treatments, claimant determined that he required medical care.”
Here, the ALJ found the respondent is “estopped” from objecting to the claimant’s selection of Gold’s Gym as the authorized exercise facility. We understand this finding to represent the ALJ’s determination that Gold’s Gym became authorized by the respondent’s knowledge of the claimant’s need for a Montana ATP and the respondent’s failure to appoint an ATP or object to claimant’s use of Gold’s Gym. In this regard, the ALJ’s pertinent factual findings must be upheld if supported by substantial evidence in the record and plausible inferences drawn therefrom. Section 8-43-301(8), C.R.S. 2004; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, in light of the ALJ’s findings, we place no significance on any legal distinction between the doctrines of “waiver” and “estoppel.” See Sneath v. Express Messenger Service, 931 P.2d 565, 568 (Colo.App. 1996).
Here, ALJ reasonably inferred the respondent was aware of the claimant’s need for a Montana ATP in June 2003, and was generally aware the claimant needed access to exercise equipment as a form of Grover
treatment because it paid for such treatment in Colorado. Despite these facts, and despite declining to authorize the Montana physician suggested by the claimant, no Montana ATP capable of prescribing a suitable facility was designated until late January 2004. The claimant did not see this designated physician until April 2004. Moreover, the respondent was made aware sometime in the fall of 2003 that the claimant was going to Gold’s Gym, but failed to register any objection or suggest any alternative provider. For these reasons, we conclude the ALJ properly applied the “waiver” principle discussed in the Greager and Brickell cases to preclude the respondent’s authorization argument. In light of this conclusion we need not address the question of whether Dr. Fisher remained authorized in April 2004, or whether he could issue a “retroactive” prescription. Similarly, we need not consider the respondent’s argument regarding change of physician under section 8-43-404(5)(a), C.R.S. 2004.
The respondent’s reliance on Rule of Procedure XVI (K)(1)(a), 7 Code Colo. Reg. 1101-3 at 79 [current version], is unavailing. The ALJ found there were “extenuating circumstances,” particularly those involving the respondent’s conduct, which excused failure to submit the gym bills within one hundred twenty days. For the reasons stated above, the record fully supports the ALJ’s conclusion.
II.
Next the respondent argues the claimant’s selection of Gold’s Gym in Bozeman was not reasonable and necessary. The respondent relies on evidence that there are exercise facilities closer to the claimant’s home, and that these facilities allegedly have equipment to suitable for the claimant’s needs. We are not persuaded.
The question of whether particular treatment is reasonable and necessary is one of fact for determination by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). In this regard, the weight and credibility to be assigned the lay testimony and expert medical evidence is for the ALJ. Wilson v. Industrial Claim Appeals Office, supra.
The ALJ’s finding that the claimant needs to use the facility in Bozeman, and the implicit conclusion that no other nearer facility is adequate, is supported by the testimony of the claimant. Moreover, the need for the Nautilus equipment available in Bozeman is amply supported by the reports of Dr. Hendrickson, and evidence that it was the type of equipment the claimant used in Colorado. (Tr. P. 16). It was for the ALJ to assess the weight of this testimony, and the mere fact the ALJ might have made other findings and drawn other conclusions is immaterial on review. In particular, we reject the respondent’s assertions that the ALJ placed “too much weight” on the claimant’s testimony, and that the respondent “proved” there were like or similar facilities available near the claimant’s home.
III.
The respondent next contends the ALJ erred in ordering them to pay mileage expenses for the claimant’s trip to visit Dr. Fisher in July 2003. The respondent asserts that the $392 expense is unreasonable because the claimant “should have been able to find a provider” in Montana and “could have received emergency care at an emergency room.” We perceive no error.
Our courts have recognized that respondents are responsible for reimbursing travel expenses which the claimant incurs when obtaining authorized medical treatment. Sigman Meat Co. v. Industrial Claim Appeals Office, 761 P.2d 265 (Colo.App. 1988). While it may be that an ALJ could determine certain travel expenses are unreasonable or unnecessary, such determinations are issues of fact for the ALJ. City of Durango v. Dunagan, supra. Further, the availability of services, or lack thereof, in rural areas is a factor which may be considered in determining whether a particular method of seeking service is reasonable or not. See Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995) (lack of home health services available in rural area supported compensation of services provided by claimant’s spouse).
Here, although the respondent was fully aware of the claimant’s need for follow up examinations by an ATP, the respondent had not designate any Montana provider two months after the claimant moved to that state. In the meantime, the claimant’s physical therapy and exercise programs were lapsing, and the respondent adjuster had refused to authorize the Montana physician suggested by the claimant. In these circumstances, we cannot say the record lacks evidentiary support for the ALJ’s determination that the travel expense to see the only ATP in existence, Dr. Fisher, was reasonable and necessary.
Moreover, the respondent’s arguments are not logical. If the claimant “could have” found a provider in Montana, so could the respondent. However, we fail to perceive why the claimant should have obtained treatment from a provider in Montana when she ran the risk the respondent would take the position the treatment was not authorized, as it did with Dr. Downey. Similarly, it is doubtful whether the claimant could have successfully argued that a visit to an emergency room was the product of a bona fide emergency such that the treatment would be considered authorized without regard to the respondent’s designation. See Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Neither was the ALJ required to infer that an emergency room visit would have been cheaper than the mileage expense.
Insofar as the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 22, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Lynn Lowder, Twin Bridges, MT, Albertson’s, Grand Junction, CO, Mary Wiggins, Specialty Risk Services, Salt Lake City, UT, Christopher Seidman, Esq., Grand Junction, CO., (For Claimant).
William M. Sterck, Esq. and Joe M. Espinosa, Esq., Denver, CO, (For Respondents).