W.C. No. 4-215-861Industrial Claim Appeals Office.
July 26, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which determined that the claimant suffered a compensable injury during her employment for the respondent-employer at the Holiday Inn, and awarded benefits. We affirm.
The ALJ’s pertinent findings may be summarized as follows. The claimant injured her back during a non-work related automobile accident in 1988. In February 1993, the claimant suffered a back injury during her employment as a housekeeper at the Red Lion Inn. As a result of this injury, the claimant lost no time from work and continued to work as a housekeeper until August 1993. In November 1993, the claimant went to work as a housekeeper at the Holiday Inn. This employment aggravated the claimant’s back condition and the claimant was physically unable to continue working after May 30, 1994.
Based upon these findings, the ALJ determined that the claimant sustained a compensable back injury during her employment at the Holiday Inn and ordered the respondents to provide temporary disability and medical benefits. With regard to medical benefits, the ALJ determined that the respondent-employer failed to designate a provider to treat the claimant’s injury, and therefore, concluded that the physician selected by the claimant is the authorized provider.
The respondents first contend that there is not substantial evidence in the record to support the ALJ’s finding of a compensable injury. We disagree.
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts without regard to the existence of contradictory or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Where the evidence is subject to conflicting inferences, it is the sole province of the ALJ to resolve the conflicts and determine the inference to be drawn. Electric Mutual Liability Co. v. Industrial Commission, 154 Colo. 491, 391 P.2d 677
(1964). On review the issue is whether the ALJ’s inferences were permissible ones in light of the totality of the circumstances. Suetrack U.S.A. v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995); Lantern Inn v. Industrial Commission, 624 P.2d 929
(Colo.App. 1981).
The record is subject to conflicting inferences concerning the cause of the claimant’s May 1994 disability. The ALJ was persuaded by the claimant’s testimony and the June 3, 1994 report of the Airport Clinic that, the claimant’s disability was caused by an aggravation of her pre-existing back condition during her employment at the Holiday Inn. See
Summary Order dated October 5, 1994. Although the evidence might have been interpreted differently, the ALJ’s determination reflects a plausible interpretation of the evidence the ALJ found persuasive. See Tr. pp. 12, 15, 17, 25, 26. The ALJ’s determination is also supported by the evidence that the claimant continued to work at the Red Lion Inn for several months after the February 1993 injury, and was physically able to perform housekeeping duties at the Holiday Inn for several months before her disability. Tr. pp. 12, 13, 15. Consequently, we must uphold the ALJ’s finding concerning the cause of the claimant’s disability. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
The respondents remaining arguments to the contrary do not alter our conclusion. The claimant was not required to establish her injury by medical evidence. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Further, the term “injury” includes disabilities resulting from both industrial accidents and occupational diseases. Sections 8-40-201(1) (14), C.R.S. (1994 Cum. Supp.); CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982). Therefore, the absence of a traumatic event preceding the claimant’s disability did not preclude the ALJ from finding that the claimant suffered a compensable injury. Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991).
Next, the respondents contend that the record does not support the ALJ’s determination that they failed to exercise their right to select a provider to treat the claimant’s injury. In support, the respondents cite a “verification form” signed by the claimant which indicates that the Rose Healthcare Center (Rose) was the designated provider for all work related injuries at the Holiday Inn, and the claimant’s testimony that she was aware Rose was the designated provider. The respondents further argue that the ALJ’s determination is inconsistent with her finding that the claimant was examined by Rose on May 30, 1994, pursuant to a referral by the executive housekeeper at the Holiday Inn, Ms. Reese. We perceive no basis to interfere with the ALJ’s order.
Section 8-43-404(5)(a), C.R.S. (1994 Cum. Supp.) provides that:
“the employer or insurer has the right in the first instance to select the physician who attends said injured employee. If the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician or chiropractor.”
The court stated in Broadmoor Hotel v. Industrial Claim Appeals Office
(Colo.App. No. 92CA1635, May 27, 1993) (not selected for publication), that the employer’s right of selection must be exercised “at the time of the injury,” and that the general notification of an authorized medical facility by use of a signed form or by written notice posted at the employer’s premises is not necessarily a sufficient tender of the services of a physician “at the time of the injury.”
The Broadmoor court upheld a determination that the employer failed to designate a physician to treat the injured worker, even though the injured worker signed a document which listed approved “medical care facilities” for work-related injuries, and a similar document was posted at the employer’s premises. The determination was based upon evidence that the injured worker did not recall signing the document or seeing the posted notice at the employer’s premises, and the employer did not tender the services of a “physician” upon notice of the worker’s industrial injury.
As the respondents argue, the record contains evidence that the claimant signed a “verification form” designating Rose as the medical provider for all work related injuries. However, the ALJ noted that the claimant cannot read or write English. Tr. pp. 19, 39, 53. Under these circumstances, we cannot say that the record compels a conclusion that the pre-injury designation was sufficient to establish the tender of the services of a physician at the time of the injury. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987); Broadmoor v. Industrial Claim Appeals Office, supra.
Furthermore, although the claimant was aware that Rose was the designated provider, and the claimant was treated by Rose on May 30, the ALJ found that the treatment was not for the back injury. Rather, the ALJ found that when the claimant notified Ms. Reese that she suffered a rash and a back injury which she believed to be related to her work at the Holiday Inn, Ms. Reese referred the claimant to Rose for treatment of the “rash,” but not the back injury. See Finding of Fact 15; Summary Order dated October 5, 1994. Contrary to the respondents’ contention, this finding is consistent with the testimony of Ms. Reese and the claimant. Tr. pp. 21, 32, 47-49.
Moreover, the ALJ’s findings support a conclusion that, even if the claimant was aware of the pre-injury designation, the respondent-employer withdrew the pre-designation with regard to the claimant’s back injury See Broadmoor v. Industrial Claim Appeals Office, supra. In other words, the respondent-employer did not tender the services of a physician to treat the back injury “at the time of the injury.” Consequently, we must uphold the ALJ’s determination that the right of selection passed to the claimant See Rogers v. Industrial Claim Appeals Office, supra.
Lastly, we reject the respondents’ argument that the ALJ’s order does not “resolve conflicts in the evidence” concerning the extent of their liability. The ALJ held that the respondents are liable for temporary total disability benefits commencing May 30, 1994, and medical treatment which is reasonable and necessary to cure or relieve the effects of the claimant’s back problems which are related to her work at the Holiday Inn.
The compensable nature of particular medical treatment was not an issue before the ALJ. Consequently, the ALJ was not required to determine whether any particular treatment is reasonably necessary to cure or relieve the effects of the compensable injury, and the respondents’ contentions to the contrary are without merit. See Mason Jar Restaurant v. Industrial Claims Appeals Office, 862 P.2d 1026 (Colo.App. 1993) (authorization for medical treatment is a separate issue from whether the treatment is necessitated by the injury); Williams v. Industrial Commission, 723 P.2d 749
(Colo.App. 1986).
IT IS THEREFORE ORDERED that the ALJ’s order dated November 7, 1994, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1994 Cum.Supp.).
Copies of this decision were mailed July 26, 1995 to the following parties:
Lucia Reyes, 3073 Zion St., Aurora, CO 80011
John Q. Hammons Management Co., 15500 E. 40th Ave., Denver, CO 80239
American Motorists Ins. Co., % Kemper Ins. Co., P.O. Box 5347, T.A., Denver, CO 80217
Philip A. Klein, Esq., 1751 Gilpin St., Denver, CO 80218 (For the Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico Ave., #100, Denver, CO 80210 (For the Respondents)
BY: _______________________