W.C. No. 4-413-780Industrial Claim Appeals Office.
July 20, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Rumler (ALJ) which determined the claimant sustained a compensable injury, found the claimant is entitled to temporary disability benefits, and awarded medical benefits. We conclude the evidence supports the ALJ’s finding the claimant sustained a compensable injury, set aside the contested award of medical benefits, and dismiss without prejudice the petition to review as it pertains to temporary disability benefits.
The ALJ credited the claimant’s testimony that she injured her back on January 20, 1999, when she lifted a bag of dog food and a bag of cat litter while performing duties as a cashier. The ALJ further found that the claimant’s testimony was corroborated by a cash register tape, and a medical report dated January 25, 1999. The ALJ concluded the injury resulted in temporary total and temporary partial disability from January 21, 1999 to March 1, 1999. However, no temporary disability benefits were awarded because the issue of the average weekly wage was not tried, and the parties failed to reach agreement concerning the claimant’s average weekly wage.
Concerning medical benefits, the ALJ found the Greeley Medical Clinic was the authorized provider. However, the ALJ found the respondents refused to pay for the claimant’s treatment and, therefore, the clinic refused to provide additional treatment to the claimant. Under the circumstances, the ALJ concluded the claimant was entitled to select Dr. Williams, D.C. as the authorized treating provider, and ordered the respondents to pay for visits the claimant “already had” with Dr. Williams.
I.
On review, the respondents contend claimant failed to present any “credible or persuasive evidence” that she sustained a work-related back injury on January 20. The respondents argue the claimant’s testimony that she was injured at 5 PM January 20 is incredible as a matter of law because the cash register detail tape shows the claimant did not lift any bags of dog food or cat litter after 5 PM. The respondents also rely on testimony that cashiers are not required to lift bags of dog food or cat litter. Finally, the respondents challenge the ALJ’s reliance on the January 25 medical report because the report does not contain an explicit opinion concerning the cause of the claimant’s injury. We find no error.
The question of whether the claimant proved a work-related back injury is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because the issue is factual, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. In applying this standard of review, we are bound by the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Wal- Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). We may not deem testimony incredible as a matter of law unless it is rebutted by hard, certain evidence. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Further, the weight and credibility of medical evidence on the issue causation is a matter for the ALJ as fact-finder Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ determined the cash register detail tape corroborated rather than contradicted the claimant’s testimony concerning the critical elements of the claim. Although the claimant testified she lifted the bags at 5 PM, the detail tape shows the claimant checked bags of dog food and cat litter approximately fifteen minutes before 5 PM. The fact that the claimant’s recollection concerning the precise moment of the injury was different than the cash register detail tape did not require the ALJ to conclude the claimant’s overall testimony was incredible as a matter of law. Further, even if the claimant could have checked the bags without lifting them, the respondents did not assert that lifting the bags was outside the scope of her employment.
Moreover, the ALJ did not err in relying on the January 25 medical report. Although the medical report does not contain an opinion concerning the cause of the claimant’s condition, the report does contain the diagnosis of “low back strain.” Thus, the report tends to corroborate the claimant’s testimony that she was suffering from a back injury of recent origin. Although the report, standing alone, might not have been sufficient to sustain the claim, it certainly is relevant to the issue of whether the claimant sustained a work-related injury. The weight to be assigned the report was a matter for the ALJ.
The respondents’ remaining arguments concerning the sufficiency of the evidence are without merit.
II.
The respondents next contend the ALJ erred in concluding the claimant was entitled to select Dr. Williams as the treating physician. First, the respondents argue there is insufficient evidence to establish that the designated providers refused to treat the claimant for non-medical reasons. Second, the respondents assert the claimant failed to prove the respondents were afforded an opportunity to designate a replacement physician. Finally, the respondents assert there is no evidence the claimant was treated by Dr. Williams. We agree the claimant failed to prove she was entitled to change physicians.
Section 8-43-404(5)(a), C.R.S. 1999), provides the employer or insurer has the right, in the first instance, to select a physician to treat the industrial injury. The claimant is not free to change physicians except with permission from the respondents or an ALJ. See Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999). However, the statute implicitly contemplates the respondents will designate a physician who is willing to provide treatment based on the physician’s medical judgment. Therefore, if the physician selected by the respondents refuses to treat the claimant for non-medical reasons, the right of selection passes to the claimant. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988).
The initial duty to designate a treating physician arises when the employer first has knowledge of the injury. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). In light of this notice requirement, we have held that, in cases were the designated treating physician refuses to treat the claimant for non-medical reasons, the respondents’ duty to select a replacement physician arises immediately upon knowledge that the designated physician has refused to treat. Wesley v. King Soopers, W.C. No. 3-883-959 (November 22, 1999); compare Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990) (in an emergency situation the claimant may procure treatment without notice to the employer, but the employer retains the right of first selection once the emergency is concluded).
We assume, arguendo, the evidence is sufficient to support the ALJ’s inference that the authorized physicians refused to treat the claimant for non-medical reasons. However, we agree with the respondents there is no evidence in the record to establish the respondents were notified of this refusal and afforded an opportunity to select a replacement physician. Although counsel for the claimant apparently attempted to introduce documentary evidence bearing on this issue at the commencement of the hearing, the ALJ determined the evidence could not be admitted absent a proper foundation during the course of the hearing. (Tr. pp. 18-20). Our review of the record indicates the claimant did not attempt to establish a foundation and there is no other evidence concerning notice to the respondents. Therefore, the claimant was not entitled to change physicians without procuring authorization of the respondents or an ALJ.
Further, we agree with the respondents there is no evidence that the claimant was ever treated by Dr. Williams. Although counsel for the claimant indicated he would present such proof during the course of the hearing, the proof was not forthcoming. (Tr. p. 6). Therefore, the record does not support the ALJ’s order requiring the respondents to pay for alleged treatments by Dr. Williams.
III.
The respondents challenge on various grounds the ALJ’s conclusion the claimant is entitled to temporary disability benefits. However, this portion of the order is not currently reviewable.
Under § 8-43-301(2), C.R.S. 1999, a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). In order for an award to be reviewable, the ALJ must determine the amount of the award United Parcel Service, Inc., v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999). Finally, an award may be partially interlocutory and partially reviewable. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).
Determination of the claimant’s average weekly wage is a necessary prerequisite to an award of temporary total or temporary partial disability benefits. Section 8-42-105(1), C.R.S. 1999; §8-42-106(1), C.R.S. 1999. For this reason, we have held that awards of temporary disability benefits are not reviewable until such time as the claimant’s average weekly wage has been determined. Lindsey v. Stand-By Personnel, W.C. No. 4-266-504 (June 27, 1996). Here, the claimant’s average weekly wage has not been determined. Therefore, the ALJ’s conclusion that the claimant is entitled to temporary total and temporary partial disability benefits is not currently reviewable.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 16, 1999, is affirmed insofar as it determined the claimant sustained a compensable injury.
IT IS FURTHER ORDERED that the ALJ’s order is reversed insofar as it determined that Dr. Williams is an authorized treating physician, and ordered the respondents to pay for treatments by Dr. Williams.
IT IS FURTHER ORDERED that the respondents’ petition to review the ALJ’s order is dismissed without prejudice insofar as the petition concerns the claimant’s entitlement to temporary disability benefits.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is 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. 1999. 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 July 20, 2000
to the following parties:
Aurora Tellez, P. O. Box 504, Platteville, CO 80651
Wal-Mart Stores, Inc., 3103 23rd Ave., Greeley, CO 80631-8750
Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Claims Management, Inc., P. O. Box 3708, Bartlesville, OK 74006-3708
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Richard A. Bovarnick, Esq., and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy