W.C. No. 4-594-683.Industrial Claim Appeals Office.
November 27, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated June 26, 2007, that granted her request for a change of physician and ordered her to select one of three physicians proffered by the respondents. We affirm.
A hearing was held on the issues of the claimant’s request for a change of physician, the claimant’s motion to strike the respondent’s notice and proposal, and claimant’s claim for penalties. No testimony was taken at the hearing; however, the parties submitted argument regarding the various issues presented. During the course of the hearing the ALJ ruled from the bench that the only issue then presently ripe for adjudication was the claimant’s request for a change of physician. The respondent conceded that the claimant could change authorized treating physicians and offered three doctors from which she could choose a new treating physician. The claimant, however, rejected that proposal and asserted that the new authorized treating physician should be Christopher Ryan, M.D. The claimant had subpoenaed several witnesses, including the respondent’s attorney and two of the respondent’s employees, to testify regarding allegedly improper communications that occurred between the respondent and the authorized treating physician. Based upon the claimant’s offer of proof the ALJ declined to hear testimony concerning the issue of the change of physician. Following the arguments of the parties the ALJ entered an order quashing the claimant’s subpoenas of the respondent’s attorney and certain of its employees. The order also granted the claimant’s change of physician to one of three doctors designated by the respondents and it ordered the respondents to refrain from unauthorized ex parte contacts with the claimant’s treating physician. The ALJ also continued the application for hearing to a
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future date pending resolution of the claimant’s appeal of a previous Industrial Claim Appeals Office order.
The claimant appealed the ALJ’s order and argues that her due process rights were violated by the ALJ’s refusal to receive testimony concerning the change of physician to Dr. Ryan. She further argues that she should have been permitted to adduce evidence from the subpoenaed witnesses regarding the communications between the present authorized treating physician and the respondent’s agents and employees. She apparently asserts that this evidence of the allegedly improper communications would have established that the respondents had engaged in such serious misconduct as to render any doctor selected by them unsuitable and, conversely, would have established the claimant’s entitlement to select Dr. Ryan as the treating physician. We are unpersuaded that the ALJ abused his discretion or otherwise erred.
Section 8-43-404(5)(a), C.R.S. 2005, permits the employer or insurer to select the treating physician in the first instance. Once the respondents have exercised their right to select the treating physician, the claimant may not change physicians without permission from the insurer or “upon the proper showing to the division.” See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996). Section 8-43-404(5)(a) does not contain a specific definition of a “proper showing.” Consequently, we have previously held the ALJ possesses broad discretionary authority to grant a change of physician depending on the particular circumstances of the claim. See Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999) Szocinski v. Powderhorn Coal Co., W.C. No. 3-109-400 (December 14, 1998); Merrill v. Mulberry Inn, Inc., W.C. No. 3-949-781 (November 16, 1995). Because of the discretionary nature of the issue, we may not interfere with the ALJ’s order unless an abuse of discretion is shown. An abuse exists if the ALJ’s order is beyond the bounds of reason, as where it is unsupported by the evidence or is contrary to law Rosenberg v. Board of Education of School District No. 1, 710 P.2d 1095
(Colo. 1995).
The ALJ’s decision as to a change in physician should consider the need to insure that the claimant is provided with reasonable and necessary medical treatment as required by § 8-42-101(1), C.R.S. 2007, while also protecting the respondent’s interest in being apprised of the course of treatment for which it may ultimately be held liable. See Yeck v. Industrial Claim Appeals Office, supra. Moreover, the ALJ is not required to approve a change in physician because of a claimant’s personal reasons, including mere dissatisfaction. See Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985).
Here, the ALJ did not abuse his discretion in fashioning a remedy that permitted a change of physician to one other than Dr. Ryan. At the hearing the claimant’s attorney sought to adduce testimony from the claimant that she “has a lack of trust in Dr. Woo due
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to this communication that took place. . . .” Tr. at 44. The claimant’s attorney then stated that because of the communication “no physician proposed by respondent should be the physician in this case.” Tr. at 45. The ALJ then stated that he was not going to permit testimony regarding the allegedly improper communications and the claimant’s attorney made the following offer of proof:
So as an offer of proof I would say that I believe the testimony would show that Michelle Horning was employed by Exempla; was stationed eight to ten feet away from Dr. Woo’s office. Regularly communicated with Dr. Woo on this case. That communication violated federal law and the HIPAA statutes because medical authorization is required between two covered entities, which both are covered entities under the act. And therefore — that’s why my client wants a new doctor. She’s in pain and she needs a new doctor.
Tr. at 46. In response to the claimant’s offer of proof, the respondent’s attorney stated that they had agreed to a change of physician, that they had provided the names of three doctors from whom the claimant could select a new authorized treating physician, and that they would consent to entry of an order precluding ex parte
communications by the respondents with the new treating physician. Tr. at 46. The claimant then reiterated that the claimant should be entitled to a doctor of her choosing “so she doesn’t have to run the risk that they’ll violate the law or violate the order and start hitting the new physician over the head. . . .” Tr. at 48. See also Tr. at 53 (based on “totality of the circumstances” claimant has a right to be seen by a physician she believes she can trust).
As we read the ALJ’s order, he considered the claimant’s offer of proof and determined that, notwithstanding the alleged unlawful communications, the proper balancing of the rights of the parties dictated that the claimant be permitted to obtain treatment from a physician other than Dr. Woo, and that the respondents be ordered not to engage in ex parte communications. However, the ALJ rejected the claimant’s contention that any alleged misconduct on the part of the respondent’s employees or agents warranted a change to a physician selected by the claimant. In our view the ALJ’s order represents a compromise between the rights of the respective parties and we cannot state that it constitutes an abuse of discretion. Moreover, the ALJ noted that the claimant’s offer of proof did not include proffered evidence that Dr. Ryan had proposed any particular treatment, that he had any special expertise in treating the claimant’s condition, or that he was specially suited to provide that treatment. Rather, the claimant characterized the proposed testimony as going exclusively to the question whether she could “trust” any doctor selected by the respondent. In our view the ALJ could, within the broad discretion afforded him in this area, reject that offer of proof as not constituting
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a “proper showing” that the claimant should be permitted to change physicians to one of her choosing. Even assuming that the claimant did not trust the respondent or any doctor selected by it, the ALJ could conclude that the respondent retained sufficient interest in the management of the claimant’s medical treatment such that it should be provided by a doctor selected by the respondent. Although the record would certainly permit other inferences, the ALJ did not abuse his broad discretion in this case.
We have also considered the respondent’s argument that the order is not presently final and reviewable under § 8-43-301(2), C.R.S. 2007 because it does not deny any specific medical treatment proposed by Dr. Ryan. However, we have previously ruled that an order that denies a request for a change of physician to a specific doctor is equivalent to the denial of a specific benefit and therefore is final and reviewable Vigil v. City Cab Company, W.C. No. 3-985-493 (May 23, 1995) Landeros v. CF I Steel, W.C. No. 4-395-493 (October 26, 2000). We decline to depart from the reasoning of those previous orders.
Finally, we deny the respondent’s request for attorney fees pursuant to § 8-43-301(14), C.R.S. 2007. As we read the respondent’s request, it is premised largely on the argument that the claimant appealed an interlocutory order. Since we have decided that the order is reviewable, the request for attorney fees is not well founded.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 26, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________Thomas Schrant
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MAY B MCCORMICK, 9180 E. CENTER DR #1D, DENVER, CO, (Claimant).
EXEMPLA HEALTHCARE, Attn: MICHELLE HORNING, C/O: EMPLOYEE OCCUPATIONAL HEALTH SERVICES, CO, (Employer).
CHRIS FORSYTH LAW OFFICE, LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, (For Claimant).
MCELROY, DEUTSCH, MULVANEY CARPENTER LLP, Attn: KATHERINE MARKHEIM LEE/JEFFREY ERICKSON, DENVER, CO, (For Respondents).
SEDGWICK CLAIMS MGMT SERVICES, INC, Attn: CHRIS MATCHET, CO, (Other Party).
SEDGWICK CLAIMS MGMT SERVICES, INC., Attn: DEBBIE BAIRD, CO, (Other Party 2).
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