Industrial Claim Appeals Office.
W.C. No. 4-642-757.
March 31, 2006.
FINAL ORDER
The respondents seeks review of an order of Administrative Law Judge Henk (ALJ) dated November 2, 2005 that ordered the respondents to pay medical benefits in the form of treatment by Concentra and by Dr. Severin. We affirm.
A hearing was held on the issues of the compensability of the claimant’s alleged occupational disease, and her entitlement to medical benefits and to temporary disability benefits. Following the hearing the ALJ entered factual findings that may be summarized as follows. The claimant worked as a ticket checker at a security post at DIA, which required her to stand for lengthy periods of time. The claimant began experiencing pain in her left foot in February 2005, and she reported the problem to her employer, although the ALJ rejected as not persuasive the claimant’s testimony that she reported the work-related nature of the foot pain. The claimant requested that she be permitted to sit down at her job. That request was denied. The claimant sought medical treatment for her foot pain at Kaiser in February 2005. Dr. Severin examined the claimant, diagnosed plantar fasciitis and stated to the claimant that her condition was work-related. The claimant reported the problem to the employer, which referred her to Concentra for medical treatment. Dr. Maiocco examined the claimant, stated that her foot and knee pain was not work-related, and recommended that she follow up with her personal physician. He also stated that she had reached maximum medical improvement and that she was released from his care.
The ALJ concluded that the claimant had sustained an occupational disease affecting her left foot; however, she denied the claim as it related to the left knee. Based upon her findings, the ALJ also concluded that Dr. Maiocco of Concentra was authorized, but that he believed that her condition was not work-related and therefore discharged her with instructions to consult her personal physician. The ALJ inferred from Dr. Maiocco’s report that he refused to provide treatment for non-medical reasons, and that because the employer did not designate another physician the right to select a doctor passed to the claimant. The claimant selected her Kaiser physician, Dr. Severin, who was therefore authorized. The ALJ ordered the respondents to pay temporary disability benefits and medical benefits.
The sole issue raised by the respondents on review is that of the authorization of the Dr. Severin and his referrals. The respondents argue that, even if Dr. Maiocco refused to treat the claimant for non-medical reasons, they were never afforded the opportunity to designate another physician. Accordingly, they argue that the right of selection did not properly pass to the claimant. We disagree and therefore affirm.
Section 8-43-404(5)(a), C.R.S. 2005, gives the employer or insurer the right in the first instance to select the treating physician. Further, providers to whom the claimant is referred in the normal progression of authorized treatment are also authorized to render treatment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). If the claimant changes physicians without procuring permission from the insurer or an ALJ, the treatment is not authorized and the respondents are not liable to pay for it. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999). This right of selection is not conditioned on an admission of liability, and we do not believe that such a condition may be read into the statute. The mere fact that the respondent denied liability, after the claimant initially sought treatment, does not extinguish its interest in being apprised of the course of treatment for which it could ultimately be held liable. See Colorado Fuel and Iron Corp. v. Industrial Commission, 129 Colo. 353, 269 P.2d 1070 (1954) (the party responsible for paying medical bills has a “legal right to know what is being done”). Dominguez v. Monfort W.C. 3-857-241
(February 27, 1991)
The insurer’s right to select the treating physician contemplates the insurer will appoint a physician willing to treat the claimant based on the physician’s independent medical judgment. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000); Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988). Consequently, if the designated treating physician refuses to provide treatment for non-medical reasons, the insurer must designate a new treating physician or the right of selection passes to the claimant. The respondent must appoint a new treating physician “forthwith.” See Lutz v. Industrial Claim Appeals Office, supra; Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987); Davis v. Interstate Brand Corp., W.C. No. 4-291-678
(May 17, 1999), aff’d. Interstate-Brands Corp. v. Industrial Claim Appeals Office, (Colo.App. No. 99CA1020, December 16, 1999) (not selected for publication); Tellez v. Teledyne Water Pik, W.C. No. 3-990-062 (March 24, 1992); aff’d., Teledyne Water Pik v. Industrial Claim Appeals Office, W.C. No. 92CA0643, December 24, 1992) (not selected for publication). The insurer’s obligation to appoint a new treating physician therefore arises forthwith upon notice that the previously designated physician has refused to treat. Wesley v. King Soopers,
W.C. No. 3-883-959 (November 22, 1999). Whether the authorized treating physician has refused to treat the claimant for non-medical reasons is a question of fact for resolution by the ALJ. Ruybal v. University Health Sciences Center, supra. We must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. § 8-43-301(8), C.R.S. 2001.
Here, we disagree with the respondents that the ALJ erred in ruling that Dr. Severin was authorized. Although the respondents correctly state the law regarding a change of physicians pursuant to § 8-43-404(5)(a), C.R.S. 2005 that is not the applicable provision here. Rather, the ALJ entered factual findings that Dr. Maiocco refused to treat the claimant for non-medical reasons, that the employer failed to designate a new physician, and that the claimant selected Dr. Severin as the new authorized treating physician. These findings are supported by substantial evidence and by reasonable inferences from the record, and the ALJ’s conclusion that the right to select an authorized doctor passed to the claimant is consistent with the applicable law.
The ALJ expressly relied upon Dr. Maiocco’s report dated February 28, 2005, in inferring that he declined to offer treatment for her plantar fasciitis. Dr. Maiocco stated in that report that: “I do not feel this is a work related injury as there is no hx of an injury at work she should f/u with her personal physician to care for her discomfort. . . .” The ALJ could reasonably infer from this report, in conjunction with Dr. Maiocco’s release of the claimant from his further care, that he declined to offer any medical treatment on the grounds that he did not believe the condition to be work-related. Although the report is ambiguous concerning whether Dr. Maiocco believed that any further care was actually necessary, the ALJ could certainly infer from the referral to the claimant’s personal physician that Dr. Maiocco contemplated that medical treatment was available to relieve the claimant’s condition, but that he declined to provide it. See Davis v. Interstate Brands Corporation, supra.
(doctor’s refusal to treat on the grounds that the condition was not work-related was a refusal for non-medical reasons and the right of selection passed to the claimant). Although this is certainly not the only possible reading of Dr. Maiocco’s report, it is within the province of the ALJ to weigh the medical evidence and resolve conflicts and ambiguities in that evidence Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Our review of the ALJ’s interpretation of the doctor’s medical report is narrow, and we defer to the plausible inferences she drew from that report. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Because the ALJ’s reading of the doctor’s report is a plausible one, we decline to disturb her finding that the doctor disclaimed responsibility for medical treatment in the case and, in effect, refused to treat the claimant for non-medical reasons. See A R Concrete Construction v. Lightener, 759 P.2d 831 (Colo.App. 1988).
Further, we disagree with the respondents that the record is devoid of evidence that the employer was afforded an opportunity to designate another physician. After stating that the claimant’s condition was not work-related and that the claimant should follow up with her personal physician, Dr. Maiocco’s report then states on its face that “I have called her employer to make them aware of this. . . .” (emphasis added). The ALJ could certainly infer from this that the employer was notified of the need to authorize another doctor, and since that obligation arises “forthwith” and since it is undisputed that the employer did not do so, the ALJ could conclude that the right of selection passed to the claimant.
Insofar as the respondents raise other arguments, we have considered them and are not persuaded that a different result is appropriate.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 2, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Victoria Scoggins, Denver, CO, Air Serv, Denver, CO, Air Serv Corporation, Atlanta, GA, ACE American Insurance Company, Portland, OR, Neil D. O’Toole, Esq., Denver, CO, (For Claimant).
Richard A. Bovarnick, Esq., Denver, CO, (For Respondents).