W.C. No. 4-513-682.Industrial Claim Appeals Office.
December 7, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated August 16, 2007, that found the respondents failed to tender a physician in a timely manner following the filing of a petition to reopen and the right of selection had passed to the claimant. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant sustained compensable injuries on April 30, 2001 and received authorized medical care primarily from Dr. Gray. The claimant was referred to Dr. Hemler by a nurse case manager. The respondents filed a final admission of liability in 2002 and the case closed. In June 2006, the claimant sought medical treatment for her work injuries with Dr. Higginbotham. Dr. Higginbotham made numerous recommendations for treatment to cure or relieve the effects of the industrial injury. The claimant filed a petition to reopen on August 1, 2006, based upon a worsening of condition as outlined by Dr. Higginbotham. Hearing on the petition to reopen was held on November 1, 2006 before former ALJ Mattoon. ALJ Mattoon issued an order reopening the claim and ordering reasonable and necessary medical treatment but did not specifically order the insurer to pay for the treatment by Dr. Higginbotham. After the claimant filed the petition to reopen, the respondents did not tender a treating physician to address the claimant’s worsening symptoms. When the respondents did schedule an appointment for the claimant in October 2006, it was for an independent medical examination (IME) only by Dr. Hemler. Following the issuance of ALJ Mattoon’s November 14, 2006 order and the report from Dr. Hemler, the respondents continued to fail to tender medical treatment. Dr. Hemler agreed that the
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claimant needed treatment; however, he did not think that Dr. Higginbotham was qualified to diagnose and treat the claimant.
The ALJ found that the claimant’s petition to reopen served as notice to the employer that additional benefits are sought and that notice triggered the respondents’ duty to designate an authorized treating physician. The ALJ further found that the respondents failed to timely tender a physician following the filing of the petition to reopen and therefore, the right of selection passed to the claimant. The ALJ concluded that the respondents were responsible for the payment of the bills of Dr. Higginbotham and his referrals.
On appeal, the respondents contend there is not substantial evidence to support the ALJ’s finding that the respondents did not tender a treating physician, but only scheduled an independent medical exam (IME) with Dr. Hemler.
As recognized by the ALJ, “where the respondents fail to authorize a physician upon notice the claimant seeks to reopen the claim the right to select the physician passes to the claimant and the physician chosen by the claimant becomes an authorized treating physician.” Clark v. Avalanche Industries Inc., W. C. No. 4-471-863 (March 12, 2004), Slip op. at 2-3. See also, Wright v. City and County of Denver, W.C. No. 4-172-291 (December 4, 1995); Mathis v. Hildebrand Care Center, W.C. No. 3-744-785, (November 30, 1987), aff’d, No. 87CA1922, (Colo.App. July 28, 1988) (not selected for publication).
We must uphold the factual determinations of the ALJ if the decision is supported by substantial evidence in the record. Section 8-43-301(8) C.R.S. 2007; Christie v. Coors Transp. Co., 919 P.2d 857, 860
(Colo.App. 1995), aff’d, 933 P.2d 1330 (Colo. 1997); see also, City of Northglenn v. Eltrich, 908 P.2d 139 (Colo.App. 1995)(ALJ’s decision may be set aside only if ALJ’s finding not supported by evidence), aff’d sub nom. Price v. Industrial Claim Appeals Office, 919 P.2d 207(Colo. 1996). Whether there is substantial evidence to support the ALJ’s decision is a question of law, but the evidence must be viewed as a whole in the light most favorable to the prevailing party. City of Loveland Police Dep’t v. Industrial Claim Appeals Office, 141 P.3d 943, 950 (Colo.App. 2006).
Substantial evidence is that quantum of probative evidence, which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995). In applying the substantial evidence test, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
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Here, Dr. Hemler agreed that the claimant was initially referred to him by a nurse case manager and that he performed an IME in November 2006 for counsel for the respondents. Hemler Depo. at 37-38. The claimant testified at the June 19, 2007 hearing that prior to the appointment with Dr. Hemler the respondents had never indicated to her that she could return to any physician for medical treatment. Tr. (June 19, 2007) at 28. The claimant further indicated that she understood the appointment with Dr. Hemler was for an IME. Tr. at 28. At the first hearing counsel for the respondents stated that the petition to reopen was filed August 1, 2006 and the appointment with Dr. Hemler was scheduled on October 6, 2006 for October 26, 2006. Tr. (November 1, 2006) at 16-18.
In our view, the above constitutes substantial evidence to support the ALJ’s finding that the respondents did not tender a treating physician, but only scheduled an independent medical exam (IME) with Dr. Hemler. The respondents have detailed other conflicting evidence. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ’s order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (existence of conflicting evidence does not lessen import of substantial evidence in support of a finding). Therefore, we perceive no error in the ALJ’s determination that the right of selection had passed to the claimant because Dr. Hemler was an IME rather than an authorized treating physician.
Section 8-43-404(5)(a), C.R.S. 2007, provides that the employer or insurer has the right in the first instance to select the physician to attend the injured employee. If the employer or insurer exercises its right to select the treating physician, the claimant may not change physicians or employ additional physicians without obtaining permission from the employer, insurer, or an ALJ. However, if the employer fails timely to tender the services of a physician, the right of selection passes to the claimant and the claimant is entitled to have the physician she selects be an authorized treating physician. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). We note § 8-43-404(5)(a) establishes that if the respondents do not respond in twenty days to a written request to have a personal physician attend the claimant they shall be deemed to have waived any objection thereto. I Rogers v. Industrial Claim Appeals Office, the court of appeals was not confronted with a petition to reopen, but did note that medical treatment must be offered “forthwith” upon notice of an injury. Here, we cannot say that the ALJ erred in his determination that the respondents failed to tender a physician in a “timely” manner given the respondents’ delay of over sixty days in beginning to schedule an appointment with Dr. Hemler from the date the petition to reopen was filed.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 16, 2007, is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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NADA ROKVIC, COLO SPGS, CO, (Claimant).
U.S. HOME/LENNAR CORP., Attn: BRIAN SORSBY, LONE TREE, CO, (Employer).
OLD REPUBLIC INSURANCE COMPANY, Attn: RENEE HALIBURTON, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).
THE LAW OFFICE OF STEPHANIE J STEVENSON, P.C., Attn: STEPHANIE STEVENSON, ESQ., COLO SPGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C., Attn: KIMBERLEY A QUINN, ESQ., DENVER, CO, (For Respondents).