W.C. No. 4-268-455Industrial Claim Appeals Office.
June 18, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded medical benefits after maximum medical improvement (MMI). The respondents contend the ALJ erred insofar as he ordered them to pay for treatment by Dr. Garland. We disagree, and therefore, affirm.
The claimant suffered a compensable injury which was treated by Dr. McLaughlin. On October 15, 1995, Dr. McLaughlin placed the claimant at MMI, but recommended additional treatment. The respondents’ filed a Final Admission of liability for permanent partial disability benefits. However, the claimant objected to the Final Admission and sought ongoing medical benefits.
The ALJ found that the claimant sustained her burden to prove an entitlement to medical benefits after MMI, as contemplated b Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The ALJ also found that Dr. McLaughlin refused to provide further treatment because the respondents refused to pay for additional treatment. Under these circumstances, the ALJ determined that the right to select the treating physician passed to the claimant who began treating with Dr. Garland on April 11, 1997. Consequently, the ALJ concluded that Dr. Garland is an authorized treating physician and ordered the respondents to pay for Dr. Garland’s treatment.
The applicable law is undisputed. Section 8-43-404(5), C.R.S. 1997, affords the respondents the right, in the first instance, to select a physician to treat the industrial injury. Once selected, the claimant is not free to change physicians except with permission from the respondents or the ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570
(Colo.App. 1996). However, § 8-43-404(5) contemplates the designation of a physician who is willing to provide treatment See Ruybal v. University Health Sciences Center, 768 P.2d 1259
(Colo.App. 1988); Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication). Therefore, if the physician selected by the respondents refuses to treat the claimant for non-medical reasons, and the respondents fail to appoint a new treating physician, the right of selection passes to the claimant. See Ruybal v. University Health Sciences Center, supra; Teledyne Water Pic v. Industrial Claim Appeals Office, supra; Buhrmann v. University of Colorado Health Sciences Center, W.C. No. 4-253-689 (November 4, 1996); Ragan v Dominion Services, Inc., W.C. No. 4-127-475, (September 3, 1993).
The respondents contend that the claimant did not notify them of Dr. McLaughlin’s refusal to treat until April 1, 1997, and that on April 9, 1997 they authorized Dr. McLaughline to provide additional “treatment.” However, they argue that the ALJ failed to determine whether they authorized the additional treatment in a timely fashion. Therefore, the respondents contend that the ALJ’s findings do not support his determination that the right of selection passed to the claimant. We disagree.
The question of whether the respondents timely appointed a new physician to treat the industrial injury is one of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence and permissible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1997; Lantern Inn v. Industrial Commission, 624 P.2d 929
(Colo.App. 1981).
The ALJ is not held to a crystalline standard in articulating his findings of fact. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). To the contrary, the ALJ’s findings are sufficient if the basis of his decision is apparent from the order. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339
(Colo.App. 1990). Moreover, the ALJ is not required to expressly discuss theories he rejected as unpersuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966).
Contrary to the respondents’ contention, the record does not support their assertion that they authorized Dr. McLaughlin to provide medical “treatment” after April 1, 1997. Rather, the respondents concede that their letter of April 9, 1997, only authorized a “single evaluation” by Dr. McLaughlin to “investigate” the claimant’s request for ongoing treatment. The letter also contains a statement that further treatment would not be considered until after the “evaluation.” On April 25, 1997, Dr. McLaughlin saw the claimant pursuant to the respondents’ authorization for a “one time reevaluation” of the claimant. However, there is no evidence Dr. McLaughlin offered, or the respondents’ authorized further treatment after that evaluation.
Moreover, the ALJ found that the respondents were on notice that Dr. McLaughlin was recommending further treatment since October 13, 1995. Under these circumstances, it is implicit the ALJ was not persuaded the respondents timely authorized furthe treatment. See Buhrmann v. University of Colorado, W.C. No. 4-253-689 (November 4, 1996). Consequently, we perceive no error in the ALJ’s finding that the right of selection passed to the claimant.
We also reject the respondents’ contention that the ALJ’s “retroactive” authorization of Dr. Garland is inconsistent wit Consolidated Landscape v. Industrial Claim Appeals Office, 883 P.2d 571 (Colo.App. 1994), in which the court held that an ALJ’s permission for a change of provider is not effective until the date of the ALJ’s order. This claim does not involve “permission” for a change of provider. Rather, the ALJ determined that the claimant had no provider following Dr. McLaughlin’s refusal to treat, and therefore, the claimant was free to select the treating physician without seeking permission from respondents or the ALJ. Under these circumstances, the ALJ did not err insofar as he required the respondents’ to pay for the treatment provided by Dr. Garland prior to September 26, 1997, the date of the ALJ’s written order. See Buhrmann v. University of Colorado, supra.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ Kathy E. Dean ________________________________ Dona Halsey
NOTICE
An action to modify or vacate this Order may be commenced inthe Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, withservice of a copy of the petition upon the Industrial ClaimAppeals Office and all other parties, within twenty (20) daysafter the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed June 18, 1998 to the following parties:
Becky L. Riggs, 18864 E. Colorado Dr., Aurora, CO 80017
Bill Bloom, Rainbow Bread Company, P.O. Box 268, Denver, CO 80201
Joe Bears, CIGNA, P.O. Box 2941, Greenwood Village, CO 80150-0141
Neil D. O’Toole, Esq., 226 W. 12th Ave., Denver, CO 80204 (For the Claimant)
Lynn P. Lyon, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________