W.C. No. 4-371-530Industrial Claim Appeals Office.
October 25, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied his request for a change of physician. We affirm.
Section 8-43-404(5), C.R.S. 1999, allows a claimant to obtain a change of physician by making a written request to the respondent-insurer. If the insurer fails to respond to the written request within twenty days, the insurer is deemed to have waived the right to object to the change and the physician selected by the claimant is authorized to treat the injury Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570
(Colo.App. 1996).
The claimant suffered two industrial injuries. This claim pertains to an injury on January 22, 1998, which arose out of and in the course of the claimant’s employment for Job Search. The claimant suffered a prior injury in 1997 while working for another employer, and that injury is the subject of W.C. No. 4-355-528.
The claimant applied for a hearing on the issue of change of physician. The claimant asserted that Dr. Higginbotham became authorized to treat the 1998 injury by virtue of the Colorado Compensation Insurance Authority’s (CCIA) failure timely to object to his February 20, 1998 request for a change of physicians. A hearing was scheduled for September 28, 1998. No testimony was presented at the hearing.
Based upon the record, the ALJ determined the CCIA gave the claimant “sufficient and repeated notice” that the claimant’s request for permission to treat with Dr. Higginbotham was denied. Therefore, the ALJ concluded the claimant failed to establish the CCIA waived their objection to the request for a change of physician.
The claimant’s Petition to Review alleges the ALJ erred in finding the CCIA timely objected to the request for a change of physician. The claimant also alleges the ALJ erred insofar as her order was based upon findings that the respondents’ objection was in “substantial compliance”with § 8-43-404, the respondents did not “intentionally waive” the right to select a treating physician, and the claimant’s request was not made for any proper reason. We perceive no reversible error.
We note the claimant did not file a brief in support of the Petition to Review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642
(Colo.App. 1986).
On February 20, 1998, claimant’s counsel filed a workers’ compensation claim for the January 22 injury, and an entry of appearance. Claimant’s counsel also wrote to the CCIA and requested copies of the Employer’s First Report of Injury, the claimant’s personnel file and wage records. Further, the letter indicated that the claimant was “wondering if [the CCIA] would allow him to change the primary authorized treating physician to Dr. Thomas W. Higginbotham.” The February 20 letter does not identify a date of injury, or reference any workers’ compensation claim number or carrier number.
The CCIA responded in a letter dated February 27, 1998, from Claims Adjuster David Hehr. The response listed the date of injury as September 27, 1997, and the Division of Workers’ Compensation # 4-355-528, and stated:
“Regarding your 2 20 98 note, we are assuming your entry of appearance and request for production are intended for this claim # and date of accident and policyholder. . . . We are assuming it is your intention to represent [the claimant] on this claim, so if this is not correct, please advise.”
The February 27 letter also stated:
“In the meantime, please be advised that our records show your client has been noncompliant with treatment, and no showed several appointments with Emergicare and has refused to respond to our inquiries. Your change of physician request to Dr. Higginbotham is therefore denied.”
On March 4, 1998, claimant’s counsel advised Mr. Hehr that he was not representing the claimant in W.C. No. 4-355-528, and was representing the claimant for the 1998 injury, which was assigned to adjuster Lorraine Hensley. The letter also stated, “I would appreciate it if you would forward the February 20, 1998 letter from me to Ms. Hensley.”
On April 13, 1998, claimant’s counsel wrote to CCIA Claims Adjuster Barbara Herbold, and asserted that the CCIA waived its objection to Dr. Higginbotham by failing timely to respond to the claimant’s request for a change of physician. On April 20, 1999, Ms. Herbold responded by indicating that the February 20 request had been denied by Mr. Hehr on February 27, 1998.
We must uphold the ALJ’s findings of fact if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 1999; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Where the evidence is subject to conflicting inferences, it is the ALJ’s sole prerogative to determine the inference to be drawn Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Section 8-43-404(5) does not specify a particular form for the insurer to grant or approve permission for a change of physician. Accordingly, the ALJ could reasonably infer that the respondents’ February 27 notice of objection substantially complied with the intent of the statute.
Furthermore, we agree with the ALJ that the February 20 letter is ambiguous concerning whether the claimant was requesting a change of physician for the 1997 or 1998 injury. Insofar as the claimant was requesting a change of physician in the 1998 injury claim, the ALJ could reasonably interpret the CCIA’s February 27 response as reflecting the CCIA’s position that because the claimant was noncompliant with authorized medical treatment, the CCIA refused to permit any change of physician to Dr. Higginbotham. Therefore, the February 27 letter supports the ALJ’s finding that the CCIA timely objected to the claimant’s request for a change of physician in this claim.
Moreover, as we read the ALJ’s order, she did require the claimant to prove an “intentional waiver” of the respondents’ right to select the treating physician. Instead, she determined that the CCIA’s failure to respond to the March 4 letter until April 20 did not demonstrate an “intentional waiver” because the CCIA’s February 27 letter was an effective denial of the request for a change of physician. Under these circumstances the CCIA was under the reasonable impression that no further response was necessary.
In reaching our conclusions we recognize that there is no limit on the number of times a claimant may request permission to change physicians, and the insurer must timely respond to each request. Jacoby v. Metro Taxi, Inc., 851 P.2d 245 (Colo.App. 1993). However, a reasonable interpretation of the record supports the ALJ’s implicit determination that the claimant only made one request for a change of physician.
The letter dated February 20, 1998, requested several things in addition to the change of physician. Under these circumstances, we disagree with the claimant’s contention that the February 20 letter must be construed as a renewed request for a change of physician. To the contrary, the ALJ could reasonably infer that the claimant’s March request that Mr. Hehr “forward the February 20 letter to Ms. Hensley” pertained to the production of claimant’s wage and personnel records. The inference is buttressed by the April 13 correspondence in which claimant’s counsel only refers to a February 20 request for a change of physician.
Because the claimant only requested a change of physician on grounds that the CCIA waived its objection to the change, the ALJ’s finding that the request was not done for any reason related to proper medical care is superfluous. Further, the ALJ’s finding that the CCIA timely objected to the claimant’s request is dispositive and supports the ALJ’s denial of benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 5, 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. 1999.
Copies of this decision were mailed October 25, 1999 to the following parties:
Charles L. Williams, 13455 Milne Rd., Colorado Springs, CO 80928
Job Search, Attn: Monty Sowell, 1107 S. Nevada Ave., #113, Colorado Springs, CO 80903
Legal Department, Colorado Compensation Insurance Authority — Interagency Mail
Steven R. Waldmann, Esq., 303 S. Circle Dr., #203, Colorado Springs, CO 80910-3026 (For Claimant)
Thomas M. Schrant, Esq., 1660 S. Albion St., #425, Denver, CO 80222 (For Respondents)
BY: A. Pendroy