W.C. No. 4-285-153Industrial Claim Appeals Office.
December 3, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ), which ordered them to pay for medical treatment by Dr. Bennett Machanic. The respondents argue that Dr. Machanic’s care was unauthorized, and that they did not waive objection to payment for this treatment. We affirm.
The claimant sustained a compensable injury on December 19, 1994. The respondent-employer (Denver Post) referred the claimant to Dr. Shurer for treatment. However, the claimant subsequently obtained treatment from Dr. Machanic without obtaining written approval from the Denver Post or its insurer, Liberty Mutual Insurance Company (Liberty).
Nevertheless, bills for Dr. Machanic’s services were submitted to Liberty, and Liberty paid them in February and March 1995. The ALJ found that Liberty’s payment of Dr. Machanic’s bills induced the claimant to rely on Liberty’s conduct and obtain further treatment from Dr. Machanic.
In December 1995, the respondents filed a Final of Admission of Liability admitting for medical benefits. However, at that time, the respondents did not raise any objection to the treatment provided by Dr. Machanic or otherwise indicate their belief that Dr. Machanic was not an authorized treating physician. Subsequently, the claimant learned that the respondents were refusing to pay some bills submitted by Dr. Machanic, and that they were refusing payment for x-ray services prescribed by Dr. Machanic. The claimant then sought a hearing requiring payment of these bills.
The ALJ concluded that Liberty’s payment of Dr. Machanic’s bills led the claimant reasonably to believe that Dr. Machanic was “acceptable to the Respondents,” and that the respondents “waived” any objection to payment of Dr. Machanic’s bills. The ALJ also found that the respondents violated Rule of Procedure XVI (K), 7 Code Colo. Reg. 1101-3 at 80.01, by failing to provide written notification of the reasons for refusing to pay Dr. Machanic’s bills. The ALJ concluded that this violation rendered the respondents liable for the bills.
I.
On review, the respondents first contend the ALJ erroneously concluded they “waived” their objection to Dr. Machanic as an authorized physician. The respondents argue that the doctrine of waiver is not applicable because the claimant failed to make a written request for a change of physician pursuant to the statutory procedure created by § 8-43-404(5)(a), C.R.S. 1998. Further, the respondents argue that the evidence does not support a finding of waiver because Denver Post’s “employee health supervisor” advised the claimant that treatment with Dr. Machanic would not be paid. We reject these arguments.
It is true, as the respondents argue, that § 8-43-404(5)(a) establishes a statutory procedure for a claimant to obtain written permission from the insurance carrier to change treating physicians. However, the mere existence of a statutory right or process does not preclude application of equitable principles, including waiver and estoppel, where the facts warrant their application. Johnson v. Industrial Commission, 761 P.2d 1140
(Colo. 1988). For this reason, we have previously ruled that an insurer may waive the statutory protection afforded by §8-43-404(5)(a). Hall v. Boise Cascade Corp., W.C. No. 4-119-634
(May 12, 1993).
Consistent with this view, our courts have long held that a claimant “may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion.”Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). The court of appeals applied this principle in Brickell v. Business Machines, Inc., 817 P.2d 536, 539 (Colo.App. 1991), holding that the respondents acquiesced in a claimant’s “change of physician when, after an initial course of chiropractic treatments, the claimant determined that he required medical care.”
Thus, the claimant’s failure to follow the procedure established by § 8-43-401(5)(a) did not preclude the ALJ from applying the doctrine of waiver. The statutory protection created by § 8-43-404(5)(a) was established for the respondents’ benefit, and the statute does not prevent them from waiving that protection.
We also disagree with the respondents’ argument that the record does not support the ALJ’s finding of waiver. Generally, waiver constitutes an intentional relinquishment of a known right. Waiver may be explicit, or it may be implied where a party engages “in conduct which manifests an intent to relinquish the right or privilege or acts inconsistently with its assertion.” Johnson v. Industrial Commission, supra. A waiver must be made with full knowledge of the relevant facts, and the conduct should be free from ambiguity and clearly manifest the intention not to assert the right. Johnson v. Industrial Commission, supra; Department of Health v. Donahue, 690 P.2d 243 (Colo. 1984).
Generally, the question of whether a party waived a right is one of fact for determination by the ALJ. See Johnson v. Industrial Commission, supra. Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, an ALJ is not held to a standard of absolute clarity in expressing findings, so long as the ALJ makes findings concerning that evidence which he found to be determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the record supports the ALJ’s finding that the respondents, by their conduct, waived the right to object that Dr. Machanic was not an authorized physician prior to September 6, 1997. As the ALJ found, the respondents paid a number of bills submitted by Dr. Machanic in February and March 1995. The respondents also filed a final admission of liability, but they failed to raise any objection to Dr. Machanic’s treatment. Under these circumstances, the respondents received notice over a prolonged period that the claimant was receiving treatment from Dr. Machanic, and they affirmatively acquiesced in the treatment by paying the medical bills submitted by Dr. Machanic. See Brickell v. Business Machines, Inc., supra.
It is true, as the respondents point out, that the employee health supervisor testified that she told the claimant that the employer did not intend to pay for treatment rendered by Dr. Machanic. However, this testimony was contradicted by the claimant. In any event, the insurer ultimately paid the bills submitted by Dr. Machanic, and the ALJ could inter that, despite initial reservations, the respondents decided to treat Dr. Machanic as an authorized physician. While other interpretations of the evidence might be possible, we decline the respondents’ invitation to substitute our judgment for that of the ALJ concerning this factual issue.
In light of this determination, we need not reach the question of whether the respondents violated Rule of Procedure XVI (K). Further, we need not consider whether violation of the rule would warrant the conclusion that the respondents waived any objection to authorization of Dr. Machanic.
II.
The respondents next contend that the ALJ’s order is overly broad because it requires them to “pay for Dr. Machanic’s care.” The respondents point out that, at the conclusion of the hearing, the ALJ ordered them to pay only those “bills incurred by the Claimant in the past.” (Tr. p. 35).
We perceive no error in the ALJ’s order. The ALJ’s remarks at the conclusion of the hearing reflect his understanding that the only issue before him concerned bills already submitted by Dr. Machanic. Thus, we do not understand the ALJ as having ordered the respondents to pay any bills other than those which were at issue. See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988) (ALJ’s oral remarks may be considered when interpreting written order).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 12, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed December 3, 1998
to the following parties:
Steven J. Wielgosz, 2685 S. Kline Cir., Lakewood, CO 80227
Denver Post Corporation, Attn: Linda Siedow, 1560 Broadway, Denver, CO 80202-6000
Liberty Mutual Insurance Company, Attn: Leona Zuffoletto, P.O. Box 3539, Englewood, CO 80155-3539
Stuart D. Mann, Esq., Clifford L. Beem, Esq., Suite 3901, Norwest Center, 1700 Lincoln St., Denver, CO 80203 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: ____________