W.C. No. 4-192-074Industrial Claim Appeals Office.
May 21, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Rumler (ALJ) which determined that Dr. Weinerman is not an authorized treating physician for purposes of providing continuing treatment of the claimant’s industrial injury. We affirm.
It is undisputed that the claimant sustained a compensable back injury, and as a result developed knee problems. It is also undisputed that the claimant requires further knee treatment, including surgery. However, the parties disputed whether Dr. Weinerman is authorized to provide that treatment.
The claimant argued before the ALJ and on appeal that Dr. Weinerman became an authorized treating physician pursuant to the provisions of §8-43-404(5)(a), C.R.S. (1996 Cum. Supp.). Insofar as pertinent, the statute provides that:
“Upon written request to the insurance carrier or employer’s authorized representative if self-insured, the employee may procure written permission to have a personal physician or chiropractor attend said employee. If such permission is neither granted nor refused within twenty days, the employer or insurance carrier shall be deemed to have waived any objection thereto.”
The claimant contends that in a letter dated October 24, 1995, his attorney requested permission from the respondent’s insurance adjuster, Alexsis Risk Management Services (Alexsis), for the claimant to treat with Dr. Weinerman. Further, the claimant contends that the respondent failed to respond to the request within twenty days. Therefore, the claimant argues that the respondent waived the right to object to Dr. Weinerman’s authorization to treat his knee problems.
As found by the ALJ, the October 24 letter from the claimant’s counsel notified Alexsis that the claimant’s knees were bothering him, and stated, “we would like an appropriate doctor to examine [the claimant’s] knees.” The letter also stated:
“Please call me and advise how we might get [the claimant] to an orthopedic specialist on an expedited basis to have his knees examined. My experience with Dr. Weinerman who is the head of orthopedic surgery at Aurora Regional Hospital, is that he is quite good in evaluating knee conditions. Please advise whether you think it would be appropriate for [the claimant] to see Dr. Weinerman to have his knees checked.”
Alexsis responded in a letter dated November 14, 1995, and agreed to a pay for a “one-time evaluation” by Dr. Weinerman. The November 14 letter also directed the claimant’s counsel to contact Alexis if there was any question or “misunderstanding” about Dr. Weinerman’s authorization
Thereafter, in a letter dated December 1, 1995, claimant’s counsel acknowledged receipt of the November 14 letter. Claimant’s counsel also expressly recognized that Alexis only authorized a “one time evaluation” by Dr. Weinerman, however claimant’s counsel did not indicate any “misunderstanding” concerning the scope of Dr. Weinerman’s authorization.
The claimant was subsequently evaluated by Dr. Weinerman. The respondent paid for the examination as well as the diagnostic tests Dr. Weinerman recommended.
Based upon this evidence, the ALJ found that the October 24 letter did not request a “change of treating physician.” Therefore, the ALJ determined that the respondent was not required to respond within twenty days of the request to preserve its objection to Dr. Weinerman’s authorization to provide continuing treatment. Rather, the ALJ determined that the October 24 letter requested “an evaluation and testing from Dr. Weinerman” which the respondent agreed to provide, and did provide. Under these circumstances, the ALJ determined that the “Claimant got what the Claimant asked for,” and that Dr. Weinerman did not become authorized to treat the claimant’s knee problems by virtue of the claimant’s October 24 request.
On review, the claimant contends that the ALJ misconstrued §8-43-404(5)(a) in determining that the respondent was not required to respond within twenty days because the letter of October 24 did not expressly state that the claimant was seeking permission for a “change of treating physician.” The claimant points out that the plain language of § 8-43-404(5)(a) refers to a request for permission to “have a personal physician or chiropractor attend” the industrial injury. Furthermore, the claimant contends that the October 24 letter constitutes a written request for permission to receive knee treatment from “a personal physician” within the meaning of the statute. We reject these arguments.
The claimant’s argument notwithstanding, the courts have repeatedly construed § 8-43-404(5)(a) as governing the procedure for changing the treating physician. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); Jacoby v. Metro Taxi, Inc., 851 P.2d 245 (Colo.App. 1993). Furthermore, there is no appreciable distinction between a request to have a physician of the claimant’s selection treat the industrial injury and a request for a “change of treating physician.” This is true because insofar as a claimant seeks permission to “have a personal physician,” or a physician of his selection treat the industrial injury, the request necessarily requests permission for a “change” from the physician who has previously been designated to treat the injury. Consequently, the ALJ did not misconstrue the scope of § 8-43-404(5)(a).
In any case, the October 24 letter does not expressly request permission to treat with a “personal physician” or a “chiropractor.” Rather, the letter requests “an appropriate doctor” or “orthopedic specialist” to “examine” the claimant’s knees. Furthermore, although the letter mentions Dr. Weinerman by name, the letter does not request permission for Dr. Weinerman to “attend” to the injury by becoming the authorized treating physician. Rather, the letter suggests that Dr. Weinerman is good at “evaluating” knees and indicates that the claimant wants to know if Alexis agrees that he should be “checked” by Dr. Weinerman.
Under these circumstances, the ALJ could, and did, reasonably interpret the October 24 letter as only requesting an evaluation, not treatment from Dr. Weinerman. See Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780, 785 (Colo.App. 1991) (claimant’s letter unambiguous and “could reasonably be interpreted as simply a request for a further examination and opinion, not a request for treatment”). Moreover, the ALJ’s inference is supported by the subsequent correspondence between the parties. Therefore, we must uphold the ALJ’s determination that the claimant did not request permission for Dr. Weinerman to provide continuing treatment of his knee problems. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995); Brown Root, Inc., v. Industrial Claim Appeals Office, supra.
It follows that we agree with the ALJ that the respondent’s failure to expressly grant or deny permission for the claimant to treat with Dr. Weinerman did not render Dr. Weinerman an authorized treating physician. In view of our disposition, we need not address the claimant’s remaining arguments. Therefore, we do not consider the claimant’s contention that the November 14 letter was an untimely response to his request for permission to treat with Dr. Weinerman.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 23, 1996, 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. (1996 Cum. Supp.).
Copies of this decision were mailed May 21, 1997 to the following parties:
Lyle Wentzel, 3661 W. Seramonte Dr., Highlands Ranch, CO 80126
DIA/United Airlines, 8900 Pena Blvd., Denver, CO 80249-6363
Alexsis Risk Management Services, Attn: Carol Schwartz, One Park Central Bldg., Ste. 410, 1515 Arapahoe St., Denver, CO 80202-2117
Shelley P. Dodge, Esq., 1763 Franklin St., Denver, CO 80218 (For the Claimant)
Floyd M. Youngblood, Esq., 4465 Kipling, Ste. 102, Wheat Ridge, CO 80033 (For the Respondent)
BY: _______________________