W.C. No. 3-883-959Industrial Claim Appeals Office.
July 2, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which upheld the respondent’s selection of an authorized treating physician. We affirm.
The claimant incurred a compensable injury, and subsequently moved to Arizona. The respondent designated Dr. Ladin to provide care in Arizona, and he did so for several years prior to November 2000. On November 13, 2000, Dr. Ladin decided he was no longer willing to treat the claimant, and the insurer was notified on November 22.
The ALJ found that “within one week” the adjuster began contacting “numerous physicians” in an effort to locate a new treating physician. However, several physicians refused to review the claimant’s records, and others canceled scheduled appointments. The claimant herself missed an appointment scheduled with Dr. Dhillon in March 2001, and then in April refused to sign certain forms required by Dr. Dhillon. As a result, Dr. Dhillon declined to treat the claimant. Finally, the claimant was examined by Dr. Johns on June 6, 2001, but only after missing an appointment scheduled for May 17.
Under these circumstances, the ALJ rejected the claimant’s contention that the delay in appointing a replacement for Dr. Ladin meant that the right of selection passed to the claimant. Instead, the ALJ found the respondent made reasonable attempts to appoint a new treating physician upon notice that Dr. Ladin would no longer treat the claimant.
On review, the claimant contends that as a matter of law the right to select the treating physician passed to the claimant because of the respondent’s lengthy delay in designating Dr. Johns as the treating physician. In light of the facts present here, we disagree.
We do not dispute that upon receiving notice that an authorized treating physician refuses to continue treating the claimant for non-medical reasons, the respondent must appoint a new treating physician “forthwith.” See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29
(Colo.App. 2000); Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987). However, under the circumstances, the question of whether the respondent complied with this duty was an issue of fact. See Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990) (after emergency treatment ended claimant “required to notify her employer and give it a reasonable opportunity to furnish” subsequent treatment); Amorelli v. Amorelli Plumbing and Heating, Inc.,
W.C. No. 4-436-946 (September 26, 2001) (question of whether employer timely tendered services of physician after notice of an injury is one of fact).
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. 2001. Moreover, in view of the claimant’s failure to designate a transcript, we must presume the ALJ’s evidentiary findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
We disagree with the claimant that in view of the ALJ’s findings the ALJ was obligated to find the right of selection passed to the claimant. In light of the unusual circumstances present here, which include the claimant’s remote location, the adjuster’s relatively rapid efforts to locate a physician, the difficulties in finding a physician willing to treat the claimant, and the claimant’s own responsibility for some of the delay, we cannot say the ALJ’s ruling is erroneous as a matter of law. Thus, the order must be upheld.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 10, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 2, 2002 to the following parties:
Lucinda Wesley, 23297 E. Cactus Forest Rd., Florence, AZ 85232
King Soopers, Inc., Landon Wallis, RSKCo, P. O. Box 5567 T. A., Denver, CO 80217
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Claimant)
Steven J. Picardi, Esq., 6355 Ward Rd., #304, Arvada, CO 80004 (For Respondent)
By: A. Hurtado