W.C. No. 4-396-343Industrial Claim Appeals Office.
March 9, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) which denied the claimant’s request for authorization of and treatment by Dr. Parry, and providers to whom Dr. Parry referred the claimant. We affirm.
The claimant sustained a compensable injury to her neck, back, right shoulder, and right foot on July 27, 1998. It is undisputed the claimant’s treating physician was Dr. Boland. Dr. Boland issued a report placing the claimant at maximum medical improvement (MMI) on February 19, 1999. Thereafter, the claimant continued to experience back pain headaches.
On March 22, 1999, the claimant telephoned Dr. Boland and reported her continuing symptoms. Dr. Boland made a written notation that he advised the claimant to “call her insurance adjustor and ask the insurance adjustor for permission to return.” Apparently, the claimant or her attorney contacted the respondents’ insurance adjustor, but the adjustor refused to “authorize” or approve payment for the claimant’s proposed visit to Dr. Boland. (Tr. p. 12). Consequently, the claimant elected to visit Dr. Parry.
On March 25 Dr. Parry issued a report opining the claimant is not at MMI. Dr. Parry also referred the claimant to other providers for purposes of evaluating temporomandibular joint dysfunction and physical therapy. Thereafter, the insurer approved a visit to Dr. Boland on May 14, 1999. Dr. Boland issued reports indicating the claimant was at MMI on May 14, 1999, and he prescribed four massage therapy treatments “to maintain maximum medical improvement.”
The claimant filed an application for hearing seeking a determination that Dr. Parry and the providers to whom she referred the claimant are authorized to treat. The claimant also sought “reasonable and necessary benefits recommended by Dr. Parry.” (Tr. p. 3). The ALJ determined that Dr. Boland did not refuse to treat the claimant on March 22 and, therefore, the right of first selection did not pass to the claimant. Moreover, the ALJ determined that the claimant’s request for authorization of Dr. Parry constituted a “constructive challenge” to Dr. Boland’s determination that the claimant reached MMI on February 19. Therefore, the ALJ concluded that a Division-sponsored independent medical examination (IME) “is a prerequisite to a hearing on that issue.”
I.
On review, the claimant first contends that Dr. Parry became an authorized physician because of Dr. Boland’s refusal to treat on March 22. The claimant relies on our decisions in Riggs v. Rainbo Bread Co., W.C. No. 4-268-455 (June 18, 1998), and Medina v. La Jara Potato Growers, W.C. No. 4-128-326 (June 1, 1998), for the proposition that the “right of selection” passed to the claimant because the insurance adjustor refused to authorize the further treatment recommended by Dr. Boland. The claimant asserts that “without the threat of losing the right of selection, the Respondent-insurer would obviously have no incentive to pay for the doctor’s services and could choose to stonewall recommended treatment.” We find no error.
Under § 8-43-404(5)(a), C.R.S. 1999, the respondents have the right, in the first instance, to select the treating physician. The claimant may not change physicians or employ additional physicians without seeking the written permission of the insurer or the approval of the Division. If the claimant fails to procure the requisite approval the respondents are not liable for the cost of unauthorized treatment obtained by the claimant. See Yeck v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA2497, August 19, 1999). However, the respondents must designate a physician willing to treat the claimant, and the right of first selection will pass to the claimant if the physician designated by the respondents refuses to treat the claimant for “non-medical reasons.” See Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988) Interstate Brands Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1020, December 16, 1999) (not selected for publication); Riggs v. Rainbo Bread Co., supra.
The question of whether the authorized treating physician refused to treat the claimant for non-medical reasons is one of fact for determination by the ALJ. Riggs v. Rainbo Bread Co., supra. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in record. § 8-43-301(8), C.R.S. 1999. The substantial evidence test mandates that we defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The claimant’s argument notwithstanding, substantial evidence supports the ALJ’s determination that Dr. Boland did not refuse to treat the claimant on March 22. Dr. Boland’s March 22 note merely states that he “advised” the claimant to contact the insurance company prior to returning for evaluation. Further, the record contains a notation from Dr. Boland’s office, dated April 5, 1999, which states that Dr. Boland does not “refuse people care,” but merely requests patients to contact the insurer so as to avoid the necessity of having to pay the medical bill themselves. Thus, the ALJ plausibly found that Dr. Boland merely recommended the claimant seek approval of the insurance carrier, but would not have refused to treat the claimant in the event she failed to procure the insurer’s approval.
Our decisions in Riggs and Medina are not authority to the contrary. In both of those cases, the evidence supported the ALJs’ determinations that the authorized treating physicians refused to provide additional care to the claimants because the insurers indicated they would not pay for the treatment. Here, although the insurer indicated it was unwilling to pay for of visit to Dr. Boland, Dr. Boland never stated that he would refuse to provide treatment if the claimant returned. The claimant merely assumed that Dr. Boland would deny treatment, and went to Dr. Parry without authorization.
Moreover, the claimant mischaracterizes the principle underlying Ruybal v. University of Colorado Health Sciences Center, Riggs v. Rainbo Bread Co., supra., and Medina v. La Jara Potato Growers, supra. The rule that the right of first selection passes to the claimant unless the insurer designates a physician willing to treat the claimant (without regard to non-medical circumstances) is not designed to penalize or threaten insurers who refuse to admit liability for specific medical treatments when they dispute the reasonableness and necessity of such treatment. Indeed, respondents may always dispute the reasonableness and necessity of medical treatment, even if the treatment is prescribed by an authorized treating physician. See Yeck v. Industrial Claim Appeals Office, supra; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Instead, the purpose of the requirement to designate a physician willing to treat the claimant is to insure that the medical treatment will be considered “authorized” if the claimant succeeds in proving the disputed treatment is compensable. See Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026, 1029 (Colo.App. 1993) (in workers’ compensation proceedings the term “authorization” refers to a physician’s status as a health care provider legally authorized to treat the injured worker). If the insurer were free to designate an authorized physician who was unwilling to treat the claimant until issues of legal liability are resolved, and the claimant were not then free to select her own authorized physician willing to treat without regard to the insurer’s legal liability, the claimant would be left in a dilemma. Either the claimant would be required to forego treatment until the legal issues are resolved, or the claimant could procure necessary treatment with the understanding that the treatment will never be compensated because it is, by definition, unauthorized. The rule established by Ruybal avoids the dilemma by allowing the right of first selection to pass to the claimant where the insurer fails to designate a physician willing to treat the claimant without regard to issues of legal liability.
Here, the insurer’s refusal to approve a visit to Dr. Boland in March 1999 did not have the effect of removing Dr. Boland’s authorization to treat the claimant, or passing the right of first selection to the claimant. Only if Dr. Boland himself had refused to treat the claimant after learning of the insurer’s refusal to approve the visit would the right of selection passed to the claimant.
II.
The claimant next contends the ALJ erred in refusing to authorize Dr. Parry “and her referrals” because the claimant had “reached MMI at the time the right of selection passed to the claimant.” We perceive no error.
Once an authorized treating physician places the claimant at MMI, the claimant may not challenge the MMI determination without obtaining a Division-sponsored IME pursuant to §8-42-107(8)(b)(III), C.R.S. 1999. The claimant may not circumvent this process by seeking a change in the treating physician to obtain additional treatment “for purposes of further curing her injury, i.e., reaching MMI.” Story v. Industrial Claim Appeals Office, 910 P.2d 80, 82 (Colo.App. 1995).
Here, the record supports the ALJ’s determination that the treatment recommended by Dr. Parry was designed to improve the claimant’s overall condition. Indeed, Dr. Parry opined the claimant is not at MMI. Because the record supports the ALJ’s determination that Dr. Boland did not refuse to treat the claimant on March 22, Dr. Parry has not become an authorized physician. Therefore, if the claimant wishes to challenge Dr. Boland’s opinion that the claimant reached MMI on February 19, she must obtain a Division-sponsored IME. Therefore, there was no error in the ALJ’s order.
Wright v. City and County of Denver, W.C. No. 4-172-294
(December 4, 1995), is not authority to the contrary. In Wright, the initial claim for benefits had been closed, and the claimant sought to reopen based on a worsened condition. Under those circumstances, we concluded that the insurer was required to designate a new authorized treating physician or the right of first selection would pass to the claimant. We specifically stated that, “the rationale for this holding is that closure of the claim terminates the claimant’s right to all benefits including medical benefits, and therefore, notice of the claimant’s desire to reopen triggers the requirement that the respondent designate a physician.”
Here, the claim for benefits was never closed. Consequently, Dr. Boland continued as an “authorized” treating physician, even after MMI. Thus, the respondents were not required to designate a new treating physician when the claimant reported that her condition had worsened.
Finally, the claimant asserts that she “is at the minimum entitled to post-MMI medical benefits with Dr. Parry and her referrals.” Apparently, this is a request for ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705
(Colo. 1988). However, the issue of Grover medical benefits was not raised to the ALJ, and we need not consider it on appeal Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995). In any event, consideration of Grover medical benefits is premature since the respondents requested an extension of time to conduct a Division-sponsored IME, and the request was granted by a Prehearing Administrative Law Judge. The issue of Grover medical benefits ripens at the time permanent disability benefits are to be determined. Grover v. Industrial Commission, 759 P.2d at 711.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 26, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 9, 2000 to the following parties:
Annette Montano, 84 S. Meade St., Denver, CO 80219
Jewish Family Services of Colorado/Shalom Denver, 1355 S. Colorado Blvd., #800, Denver, CO 80222-3330
Business Insurance Company, _ Superior National Insurance Group, P. O. Box 101630, 2000 S. Colorado Blvd., #11500, Denver, CO 80250
Willis Corroon Admin. Services, P. O. Box 12069, Oklahoma City, OK 73157
Jeff Francis, Esq., 940 Wadsworth Blvd., 4th floor, Lakewood, CO 80215 (For Claimant)
Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy