W.C. No. 4-264-157.Industrial Claim Appeals Office.
June 12, 2002.
FINAL ORDER
The claimant seeks review of an order issued by Administrative Law Judge Wheelock (ALJ) on remand. The claimant contends the ALJ erroneously determined Dr. Pero and his referrals are not authorized to treat the industrial injury and, erred in refusing to require the respondents to pay for Dr. Pero’s treatment. We disagree and, therefore, affirm.
In March 1995 the claimant suffered a compensable injury. On December 14, 1999, Dr. Bergland placed the claimant at maximum medical improvement (MMI) and released the claimant from treatment. Relying on the opinions of Dr. Bergland, the respondents filed a Final Admission of Liability which denied liability for future medical benefits as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant objected to the Final Admission.
On March 16, 2000, the claimant sought additional treatment from Dr. Bergland. Based upon his previous determination of MMI and the respondents’ denial of liability for Grover-type medical benefits, Dr. Bergland refused to examine the claimant. On March 29, 2000, the claimant began treating with Dr. Pero. The respondents subsequently authorized Dr. Bergland to provide additional treatment. However, the claimant refused to return to Dr. Bergland and sought an order requiring the respondents to pay for the treatment of Dr. Pero and his referrals.
In a previous order, the ALJ found Dr. Bergland refused to treat the claimant for non- medical reasons and, therefore, the ALJ determined the claimant was free to select a new treating physician. Furthermore, the ALJ determined that the treatment provided by Dr. Pero and his referrals was reasonable and necessary to treat the industrial injury. Therefore, the ALJ ordered the respondents to pay for the disputed treatment.
On review we concluded the ALJ’s findings were insufficient to ascertain whether the ALJ erroneously required the respondents to pay the disputed medical treatment. We remanded the matter to the ALJ to determine when, if ever, the respondents became aware that Dr. Bergland refused to treat the claimant for non-medical reasons and whether the respondents timely directed the claimant to return to Dr. Bergland for authorized treatment.
On remand the ALJ determined the respondents denied liability fo Grover-type medical benefits and there was no order awarding Grover-type medical benefits. Under these circumstances, the ALJ determined the respondents were under no obligation to provide continuing medical benefits. Furthermore, the ALJ found the respondents did not become aware of Dr. Bergland’s refusal to treat until May 9, 2000 and then immediately authorized additional treatment from Dr. Bergland. Therefore, in an order dated December 17, 2001, the ALJ determined the right to select a treating physician did not pass to the claimant and Dr. Pero was not authorized.
The claimant timely appealed the December 17 order. A briefing schedule was mailed January 16, 2002, and thus, the claimant’s brief in support of the petition to review was due February 6, 2002. See §8-43-301(4), C.R.S. 2001. However, the claimant was granted an extension of time to February 18, 2002 to file a brief in support of the petition to review. No brief was filed by February 18, 2002 and consequently the respondents did not file an opposition brief.
On February 21, 2002 the claimant filed a brief in support of the petition to review. Because the claimant’s brief was not timely filed and the respondents have not responded to the arguments asserted in the claimant’s brief, we have not considered the claimant’s brief on review.
We also note that the claimant’s Designation of Record includes the “complete Division of Workers’ Compensation file.” The record transmitted to us on appeal apparently does not include the complete Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925
(Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
As stated in our Order of Remand, the respondents are only liable for emergency and authorized treatment. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Section 8-43-404(5), C.R.S. 2001, affords the respondents the right, in the first instance, to select a physician to treat the industrial injury. However, 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, and the physician selected by the claimant is authorized to treat the injury. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication); Buhrmann v. University of Colorado Health Sciences Center, W.C. No. 4-253-689
(November 4, 1996). Except, the respondents are entitled to a reasonable period of time to select a replacement physician and the duty to tender the services of a substitute physician does not arise until the respondents are aware the designated physician refused to provide treatment for non-medical reasons. See Bilyeu v. Babcock Wilcox, Inc,. W.C. No. 4-349-701 et. al (July 24, 2001); Tellez v. Wal-Mart Stores Inc., supra; Wesley v. King Soopers, W.C. No. 3-883-959 (November 22, 1999).
Moreover, the respondents’ liability for medical benefits terminates at MMI unless there is an admission or award of future medical benefits See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Grover v. Industrial Commission, supra. It follows we agree with the ALJ that absent a finding the claimant is not at MMI or an order awarding Grover-type medical benefits the respondents were under no obligation to authorize Dr. Bergland to provide additional treatment. Rather, the respondents’ duty to tender services of a physician willing to treat the injury was not triggered until the claimant notified the respondents of his desire for additional treatment. See Wright v. City and County of Denver, W.C. No. 4-172-294 (December 4, 1995); Mathis v. Hildebrand Care Center, W.C. No. 3-744-785, (November 30, 1987), aff’d., Hildebrand Care Center v. Mathis (Colo.App. No. 87CA1922, July 28, 1988) (not selected for publication).
The questions of when the respondents became aware of the claimant’s desire for additional treatment, and whether the respondents then timely tendered the services of a physician are factual determinations for the ALJ. See Ruybal v. University Health Sciences Center, supra. Accordingly, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000).
We have reviewed the ALJ’s findings and the record. The ALJ’s findings that the respondents did not become aware of the claimant’s request for additional treatment until May 9, 2000 and that the respondents then promptly authorized Dr. Bergland to provide further treatment are supported by substantial evidence and plausible inferences drawn from the record. (See Tr. pp. 24, 25; Claimant’s Exhibit 5, Respondents’ Exhibit I); University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences). Furthermore, these findings support the ALJ’s conclusion that the right of selection did not pass to the claimant and, thus, the respondents are not liable for the treatment by Dr. Pero and his referrals.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 17, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
An action to modify or vacate this Order may be 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. 2000. 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 June 12, 2002 to the following parties:
Dennis Rogan, 1620 McArthur, Colorado Springs, CO 80909
Glenn Mickelson, United Parcel Service, 5020 Ivy St., Commerce City, CO 80022
Sandy Parrott, Liberty Mutual Insurance Company, P. O. Box 168208, Irving, TX 75016-8208
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
John M. Connell, Esq. and Susan A. Kraemer, Esq., 6750 Stapleton South Drive, #200, Denver, CO 80216 (For Respondents)
BY: A. Hurtado