W.C. No. 4-347-019Industrial Claim Appeals Office.
January 13, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined that Dr. Mitchell is not an authorized treating physician for medical treatment after maximum medical improvement. We affirm.
The claimant suffered an admitted low back injury on May 2, 1996, and was treated by Dr. Ladwig. On May 13, 1996, the claimant was injured in a motor vehicle accident on the way to an appointment at Dr. Ladwig’s office. As a result, the claimant was unable to see Dr. Ladwig until May 14.
On June 10, 1996 Dr. Ladwig placed the claimant at maximum medical improvement (MMI) for the May 2 and May 13 injuries. On June 18, 1996, the claimant began treating with Dr. Mitchell for the May 13 injury.
In July 1997, the claimant filed a workers compensation claim alleging compensable injuries on May 13, 1996, based upon the “quasi-course of employment” theory, and requested payment for Dr. Mitchell’s treatment. The respondent admitted liability but refused to pay for Dr. Mitchell’s treatment on grounds that Dr. Ladwig is the designated treating physician for the May 2 and May 13 injuries.
The ALJ found that Dr. Ladwig is the designated treating physician for all work-related injuries at the Federal Express Corporation. The ALJ also found that the claimant sought treatment from Dr. Ladwig for the May 13 injuries. Therefore, the ALJ determined that the claimant did not have the right to change physicians. Further, the ALJ determined that Dr. Ladwig did not refuse to treat the claimant for non-medical reasons and did not refer the claimant to Dr. Mitchell for treatment. Therefore, the ALJ determined that Dr. Mitchell is not an authorized treating physician.
On review, the claimant contends Dr. Mitchell became an authorized treating physician following the respondent’s failure to provide treatment for the May 13 injuries. Therefore, the claimant argues the ALJ’s findings of fact are not supported by the record. We disagree.
The applicable law is undisputed. Under § 8-43-404(5), C.R.S. 1998, the respondent has the right, in the first instance, to select a physician to treat the industrial injury. In some circumstances, the employer’s pre-injury designation of a treating physician may be sufficient to establish the tender of the services at the “time of the injury.” See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987); Broadmoor v. Industrial Claim Appeals Office, Broadmoor Hotel v. Industrial Claim Appeals Office, (Colo.App. No. 92CA1635, May 27, 1993 (not selected for publication). The sufficiency of an employer’s pre-injury designation is a question of fact to be determined by the ALJ based upon the individual circumstances of the case Stough v. Wood Recovery Systems, W.C. No. 4-210-391 (March 4, 1996); Jones v. Weld County Government, W.C. No. 4-176-234, (December 8, 1994); Trujillo v. Oppenheimer Management Group, W.C. No. 4-143-750, (August 9, 1993). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
The substantial evidence standard requires that we view the evidence in the light most favorable to the prevailing party, that we accept the ALJ’s resolution of conflicts in the evidence, and that we uphold plausible inferences drawn by the ALJ from the record. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, we may not disturb the ALJ’s assessment of the probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993).
The claimant admitted that she knew that she was required to seek treatment from Dr. Ladwig for all work-related injuries. (Tr. pp. 31-32). She also stated that on May 14 she asked Dr. Ladwig to treat the May 13 injuries. (Tr. p. 25). Therefore, the record contains substantial evidence to support the ALJ’s implicit determination that the respondent made an effective pre-designation of Dr. Ladwig as the authorized treating physician for all work-related injuries and that, in accordance with that designation, the claimant requested Dr. Ladwig to treat the May 13 injuries. Moreover, the ALJ’s findings of fact reflect his determination that even if the respondents’ did not effectively designate a physician to treat the May 13 injuries, the claimant selected Dr. Ladwig, as the treating physician. Therefore, the claimant could not change physicians without permission from the respondent or the ALJ. See Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
However, the claimant contends that Dr. Ladwig refused to treat the May 13 injuries for non-medical reasons. Therefore, the claimant argues that she had the right to treat with Dr. Mitchell. Again we disagree.
As argued by the claimant, § 8-43-404(5) implicitly contemplates that the respondent designate a physician who is willing to provide treatment. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff’d., Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo.App. 92CA0643, December 24, 1992) (not selected for publication).
Therefore, if the physician selected by the respondent refuses to treat the claimant for non-medical reasons, and the respondent fails to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized. See Ruybal v. University Health Sciences Center supra; Teledyne Water Pic v. Industrial Claim Appeals Office, supra; Buhrmann v. University of Colorado Health Sciences Center,
W.C. No. 4-253-689 (November 4, 1996); Ragan v. Dominion Services, Inc., W.C. No. 4-127-475, (September 3, 1993). 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.
Dr. Ladwig’s testimony is subject to conflicting inferences. (Ladwig depo. pp. 7-8). Dr. Ladwig stated that he diagnosed the May 2 injury as a neck, back and shoulder strain. (Ladwig depo. pp. 5, 13, 14). Dr. Ladwig stated that the only injury the claimant sustained on May 13 was an aggravation of the preexisting injuries to her neck and back, including a lumbar back strain. (Ladwig depo. p. 10).
Dr. Ladwig stated that during the May 14 examination, the claimant indicated that she was in a motor vehicle accident on May 13. In response to whether he provided treatment for the May 13 injuries, Dr. Ladwig stated “yes and no.” (Ladwig depo. p. 7). He stated that he told the claimant he would not provide treatment for injuries involving structures other than the neck and back. (Ladwig depo. p. 8). He also stated that his medical records do not reflect that he provided treatment for a lumbar back strain. (Ladwig depo. p. 23). However, he stated that he provided treatment for the aggravation of her preexisting injuries in the neck, back and shoulders, including physical therapy for her neck, back and shoulders. (Ladwig depo. pp. 7, 16). It was the ALJ’s sole prerogative to resolve the conflict in Dr. Ladwig’s testimony. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (ALJ may credit all, part, or none of a witness’ testimony).
The ALJ also reasonably interpreted Dr. Ladwig’s testimony to mean that Dr. Ladwig did not provide specific low back treatment because the claimant’s low back complaints from the motor vehicle accident did not warrant treatment. Finding of Fact 8. This finding is consistent with the paramedic report from May 13. (Ladwig depo. p. 30). Further, Dr. Ladwig stated that after the course of physical therapy he determined the claimant to be at MMI on June 10 and discharged the claimant from treatment. (Ladwig depo. pp. 16, 21). Under these circumstances, the record supports the ALJ’s determination that Dr. Ladwig refused to provide further treatment for “medical” reasons as opposed to “non-medical reasons.”
Nevertheless, the claimant contends that she was referred to Dr. Mitchell by Dr. Ladwig. In support, the claimant relies upon Dr. Ladwig’s letter dated January 12, 1998, in which he stated that he told the claimant to “seek out medical care as a result of guidance and/or direction from [her] motor vehicle insurance carrier.”
As argued by the claimant, treatment provided as a result of a referral in the normal progression of authorized treatment is compensable. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). However, the claimant admitted that she did not have motor vehicle insurance as of May 13. (Tr. p. 30). Further, there is no evidence that the claimant began treating with Dr. Mitchell as a result of a direction from any motor vehicle insurance carrier. Therefore, the record does not compel finding that the claimant began treating with Dr Mitchell on a referral from Dr. Ladwig.
Lastly, the claimant contends that the respondent knew throughout the summer of 1996 that she was treating with Dr. Mitchell but it never redirected her to another physician. Under these circumstances, the claimant argues that the respondent acquiesced in her selection of Dr. Mitchell as the authorized treating physician for the May 13 injuries.
From conflicting evidence the ALJ determined that the employer did not know the work-related nature of the May 13 injuries until July 997. The ALJ’s finding is supported by the testimony of the respondent’s adjuster, Lucy Arguello, and therefore, must be upheld.
See (T. pp. 38,52). If follows that even if the respondent knew the claimant was treating with Dr. Mitchell, the respondent did not acquiesce in Dr. Mitchell’s treatment for a compensable injury.
IT IS THEREFORE ORDERED that he ALJ’s order dated March 26, 1998, is affirmed.
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed January 13, 1999
to the following parties:
Mali Tolman, 8841 Race Street, Thornton, CO 80229
Federal Express Corporation, Carmen Cooley, 2007 Corporate Plaza, Third Floor, Memphis, TN 38132
Federal Express Corporation, Alexis Risk Management Services, Lucy Arguello, 1515 Arapahoe Street, Tower 1, Suite 410, Denver, CO 80202-2117
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th Floor, Lakewood, CO 80215 (For Claimant)
Kathryn Kaeble Todd, Esq., Ritsema Lyon, P.C., 999 18th Street, Suite 3100, Denver, CO 80202 (For Respondents — Federal Express)
BY: ____________