W.C. No. 4-310-606Industrial Claim Appeals Office.
July 10, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) insofar as the ALJ ordered them to pay medical benefits for treatment provided by Dr. Eric Verploeg (Dr. Verploeg). We affirm.
Based upon the evidence presented at a hearing on March 6, 1997, the ALJ found that the claimant suffered a compensable right knee injury on September 4, 1996. The ALJ found that the injury was treated by the Craig Medical Center, the Rehabilitation Services of Craig, and Dr. Verploeg, and ordered the respondents to pay for the treatment. The ALJ also found that as a result of the injury the claimant was temporarily unable to work. Consequently, the ALJ also awarded temporary disability benefits.
On review the respondents contend that the Craig is the authorized provider for treatment of the claimant’s industrial injury and that Craig did not refer the claimant to Dr. Verploeg. Furthermore, the respondents argue that the claimant has not requested permission to treat with Dr. Verploeg. Therefore, the respondents argue that Dr. Verploeg is not an authorized treating physician.
However, the claimant argues that the respondents did not raise the “authorization” issue at the hearing. Therefore, the claimant argues that the respondents’ waived the argument that Dr. Verploeg is not authorized to treat the injury. We agree with the claimant.
The claimant applied for a hearing on the issues of compensability, average weekly wage, temporary disability and medical benefits, including the issue of authorization. In their response to the Application for Hearing, the respondents’ endorsed the issue of offsets.
At the commencement of the hearing on March 6, claimant’s counsel stated that the claimant was “seeking an order of compensability, an order for medical benefits,” a determination that the claimant’s average weekly wage is $600 and an award of temporary disability benefits. (Tr. p. 3). Counsel for the respondents stipulated that the claimant’s average weekly wage is $600, and requested adjudication of the applicable “offsets.” (Tr. p. 4). However, the respondents’ did not indicate that “authorization” for medical treatment remained an issue for adjudication. Under these circumstances, the respondents waived litigation of the authorization issue. See Reese v. Cripple Creek (Colo.App. No. 91CA0291, November 29, 1991) (not selected for publication) (regardless of endorsement on application for hearing, failure to identify specific disputed issues at commencement of hearing when questioned by the ALJ constitutes waiver of the right to litigate those issues).
Furthermore, as argued by the claimant neither party presented testimony on the authorization issue. Nor did the respondents argue the authorization issue in their post-hearing “Position Paper.” To the contrary, the respondents’ argument that Dr. Verploeg is not an authorized treating physician was raised for the first time in the respondents’ Petition to Review. Therefore, we cannot say that the authorization issue was implicitly litigated. See Cody v. Fraser, 122 Colo. 252, 222 P.2d 422 (1950); cf. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
This conclusion is buttressed by the fact that the ALJ did not make any oral or written findings of fact concerning the authorization issue. See Tr. pp. 81-82; CAN-USA Construction Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds, at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). The absence of such findings suggests that the ALJ did not consider the authorization issue, and awarded medical benefits based upon the assumption that authorization was not disputed. Under these circumstances, we decline to consider the respondents’ argument for the first time on appeal. See Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 20, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed July 10, 1997 to the following parties:
Carl M. Moore, 1175 W. 6th St., Apt. A21, Craig, CO 81625
Domson Mine Service Co., 3413 Highway 394, Craig, CO 81625-9531
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq., (Interagency Mail).
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502, (For the Claimant).
Thomas Blake, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506, (For the Respondents).
BY: ________________________________