W.C. No. 4-761-501.Industrial Claim Appeals Office.
July 10, 2009.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Henk (ALJ) dated April 8, 2009, that denied and dismissed the claimant’s claim for benefits. We affirm.
A hearing was held in this matter on October 2, 2008. The ALJ entered an order dated December 17, 2008 that determined the claimant had failed to establish by a preponderance of the evidence that he had suffered a compensable injury to his shoulder. The ALJ denied and dismissed the claimant’s claim. The claimant appealed this order contending that he had met his burden of showing an aggravation of a preexisting condition giving rise to an occupational disease and that the ALJ had made no mention in her order of the potential bias of one of the medical experts. The ALJ issued a supplemental order dated April 8, 2009 again finding the claimant failed to establish by a preponderance of the evidence that he suffered a compensable injury to his shoulder. The claimant petitioned to review the supplemental order contending that the ALJ erred in failing to order the respondents to pay for medical treatment rendered by doctors to whom he was referred by the respondents. In his petition to review the supplemental order the claimant no longer argues that the ALJ erred in failing to find the claim compensable, but has only raised the issue of whether the respondents are estopped from denying responsibility for the medical billings incurred by medical providers he had seen on referral by the respondents. Specifically the claimant contends the respondents should be responsible for the medical bills incurred for the care and treatment provided by Dr. Ladwig and the referrals that Dr. Ladwig made.
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It is undisputed that the respondents filed a notice of contest, denying liability for the workers’ compensation claim brought by the claimant. The claimant was seen by physicians at Kaiser Permanente for the problems he had with his shoulders. However, the respondents selected Dr. Ladwig to attend to the claimant. We note that the employer does not lose the right to select the treating physician even if liability is denied. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999). The claimant concedes that although the respondents contested the compensability of the claimant they continued to control the medical treatment. However, the claimant contends that the respondents are estopped from denying responsibility for the medical billings incurred with Dr. Ladwig and his referrals because of their selection of Dr. Ladwig to attend the claimant.
We agree with the respondents that the estoppel argument was not raised by the claimant before the ALJ. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Here the claimant did raise the issue of medical benefits including the billings of Dr. Ladwig and his referrals. However, the billings of Dr. Ladwig were primarily brought up in the context of whether the right to select a new doctor had passed to the claimant based upon the non-payment of the medical bills by the respondents. See Claimant’s Reply to Respondent’s Post-Hearing Position Statement at p. 6 and Brief in Support of Claimant’s Petition to Review (the ALJ’s first order) at p. 3.
The issue of whether the respondents were liable for the medical billings of Dr. Ladwig regardless of how the ALJ ruled on the issue of the compensability of the claimed occupational disease was not ruled on by the ALJ because it was not presented to her. Equitable doctrines such as estoppel constitute affirmative defenses must be pled. Se Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394
(1977); Mireles v. R.R. Donnelley Sons, W. C. No. 4-262-587 (February 26, 2002); Manzanares v. Advanced Building Movers and Rigging, W. C. No. 3-837-674 (July 15, 1992). Here the claimant did not raise the estoppel issue before the present appeal. Therefore, we shall not consider the argument for the first time on appeal. Colorado 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 April 8, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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RICHARD SANCHEZ, EDGEWATER, CO, (Claimant).
ACE PEST CONTROL, INC., Attn: MICHAEL RAEL, DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
ROBERT W TURNER, LLC, Attn: ROBERT W. TURNER, ESQ., DENVER, CO, (For Claimant).
RITSEMA LYON, Attn: DAWN M YAGER, ESQ, DENVER, CO, (For Respondents).
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