W.C. No. 4-271-218Industrial Claim Appeals Office.
July 17, 1996
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined that the claimant suffered a compensable neck injury on June 28, 1995, and awarded benefits. We affirm.
At the conclusion of a hearing before the ALJ, the respondents conceded that the claimant suffered a compensable right shoulder injury while employed as a tree trimmer for the employer on June 28. However, the respondents disputed the claimant’s assertion that the June 28 injury subsequently resulted in neck problems.
Crediting the claimant’s testimony and the medical reports of Dr. Lowrance, the ALJ determined that the claimant’s neck problems are causally related to the June 28 injury, and that Dr. Lowrance is authorized to treat the injuries. The ALJ’s order requires the respondents to pay temporary disability benefits and the reasonable medical expenses incurred by the claimant for treatment of the June 28 injuries.
On review, the respondents contend that the record does not support the ALJ’s finding of a compensable neck injury. Further, the respondents contend that the ALJ failed to address the evidence which supports an inference that the claimant was engaged in “horseplay” at the time of the injury. The respondents also contend that neither the record nor the ALJ’s findings support a conclusion that Dr. Lowrance is authorized to treat the claimant’s neck injury. We disagree.
I.
The claimant testified that his neck “bothered” him ever since June 28. (Tr. pp. 8, 14). The claimant’s co-worker, Mike Ross, testified that the claimant complained of shoulder and neck pain after the June 28 injury. (Tr. P. 24). Further, as noted by the ALJ, the August 21, 1995 and October 9, 1995 reports of Dr. Lowrance are consistent with the claimant’s testimony that the June 28 injury caused pain in his shoulder which radiated into his neck. Therefore, the record contains substantial evidence supporting the ALJ’s finding that the June 28 industrial accident is the proximate cause of the claimant’s neck problems.
Next, we note that at the conclusion of the hearing, the respondents did not argue that the claimant was engaged in “horseplay” at the time of the injuries. Rather, the respondents admitted that the claimant sustained a compensable shoulder injury, and argued that the claimant’s neck problems were the result of a subsequent, intervening injury. (Tr. p. 35).
In any case, the ALJ was not required to make specific findings of fact concerning defense theories she did not find persuasive. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966). The ALJ was not persuaded that the claimant was engaged in horseplay at the time of the injury, and that determination is abundantly supported by the record. (Tr. pp. 6, 18, 23, 26, 27).
II.
On the issue of medical benefits, the claimant stated, and the respondents conceded that the employer did not refer the claimant to a particular physician when he requested medical treatment for the industrial injuries. (Tr. p. 38). The claimant also testified that the employer did not subsequently object to his treating with Dr. Lowrance. (Tr. 9). Accordingly, the record amply supports the ALJ’s finding that the claimant “was authorized by the employer to consult with” Dr. Lowrance for treatment of the June 28 injuries. In any event, it necessarily follows from the respondents’ admission that the claimant was not referred to a particular physician, that the employer waived its right to select a physician to treat the claimant’s injury and allowed the right of selection to pass to the claimant. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987); Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Thus, the record supports the ALJ’s conclusion that Dr. Lowrance is authorized to treat the claimant’s neck problems.
Furthermore, the respondents’ counsel conceded that Dr. Lowrance and her referrals are authorized to treat the June 28 injury. (Tr. p. 38). Because the ALJ determined as a matter of fact that the June 28 injury includes an injury to the claimant’s cervical spine, the respondents have inherently waived any objection to Dr. Lowrance’s authorization to treat the claimant’s neck problems. See generally Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 8, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 17, 1996 to the following parties:
William M. Seamans, 25363 CR 24, La Junta, CO 81050
Southeast Colorado Power Association, P. O. Box 521, La Junta, CO 81050-0521
Federated Rural Electric Insurance Corp., Attn: Nancy Taulbee, P. O. Box 15147, Lenexa, KS 66215
James A. May, Esq., 1401 Court St., Pueblo, CO 81003 (For Claimant)
Barbara Schuman Heckler, Esq. and Laura B. Embleton, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents)
BY: _______________________