W.C. No. 4-172-294Industrial Claim Appeals Office.
December 4, 1995
FINAL ORDER
The respondent seeks review of a final order of Chief Administrative Law Judge Felter (ALJ) which determined that Dr. Sherman and Dr. Burke were authorized treating physicians, and ordered the respondent to pay for treatment which they provided to the claimant. We affirm.
The ALJ found that the claimant was injured on March 19, 1993. Thereafter, she received authorized medical treatment from Dr. Gutierrez and Dr. Primack. In November 1993, Dr. Primack opined that the claimant had reached maximum medical improvement, and the respondent filed a Final Admission of Liability based on Dr. Primack’s report. The claimant admitted receiving the final admission, but the ALJ found that the copy provided to the claimant did not include Dr. Primack’s report.
The ALJ further found that the claimant’s condition worsened in 1994, and the claimant called the respondent’s insurance adjuster requesting additional medical treatment. However, the adjuster declined to authorize more treatment because she said the case was “closed.”
The claimant then sought treatment from Dr. Sherman. Dr. Sherman referred the claimant to Dr. Burke for additional treatment.
Under these circumstances, the ALJ concluded that the respondent is liable for the treatment provided by Dr. Sherman and Dr. Burke. Initially, the ALJ determined that the Final Admission of Liability was insufficient to close the claim because the claimant was not provided a copy of Dr. Primack’s report as required by the Rules of Procedure. In any event, the ALJ found that the claimant’s condition had worsened and the claim should be reopened.
Moreover, the ALJ determined that because the adjuster refused to allow the claimant to receive additional treatment, the “right to select [a] physician of her own choosing” passed to the claimant. Consequently, the ALJ ordered the respondent to pay for “all charges incurred for the claimant’s consultations” with Dr. Sherman and Dr. Burke.
On review, the respondent states that it does not challenge the ALJ’s order insofar as it involves “reopening” of the claim. However, the respondent argues that the ALJ erred in ordering it to pay for the treatments rendered by Dr. Sherman and Dr. Burke because the claimant did not make a written request for change of physician as required in §8-43-404(5)(a), C.R.S. (1995 Cum. Supp.). We find no error.
It is true that § 8-43-404(5)(a) gives the employer or insurer the right to select the treating physician in the first instance. Moreover, the statute contemplates that a change of physician may occur only upon the claimant’s “written request” to the employer or insurer, or upon approval of the Division of Workers’ Compensation. Generally, respondents are not required to pay for medical treatment which has not been authorized in accordance with the statute. See Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
However, we do not believe the provisions of § 8-43-404(5)(a) operate to deprive the claimant of compensation for the medical treatment provided by Dr. Sherman and Dr. Burke under the facts present here. We have previously held that when a claim has been closed, and the claimant seeks to reopen based on a worsened condition, it falls to the employer or insurer to designate an authorized treating physician for purposes of providing additional treatment. In the event that the employer or insurer fails to authorize a physician, the right to select the physician passes to the claimant. See Mathis v. Hildebrand Care Center, W.C. No. 3-744-785, November 30, 1987, aff’d., Hildebrand Care Center v. Mathis, Colo. App. No. 87CA1922, July 28, 1988 (not selected for publication). Our rationale for this holding is that closure of a claim terminates the claimant’s right to all benefits including medical benefits, and therefore, notice of the claimant’s desire to reopen triggers the requirement that the respondent designate a physician under § 8-43-404(5)(a). Cf. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987) (employer must tender medical treatment “forthwith” upon notice of an injury or the right of first selection passes to the claimant).
Moreover, in Greager v. Industrial Commission, 701 P.2d 168
(Colo.App. 1985), the court noted that there are exceptions to the rule that a claimant must make written request to the employer or insurer prior to changing physicians. The court stated the following:
“However, an employee 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, or, with full knowledge over a sustained period of time, has failed to object to claimant’s change of physician.”
Here, the ALJ found that when the claimant requested additional medical treatment, the adjuster took the position that the claim was closed and that the respondent was not obliged to provide any treatment absent a reopening. In these circumstances, we hold that the adjuster was required to designate an “authorized” treating physician or permit the right of selection to pass to the claimant. The failure of the adjuster to designate an authorized physician constituted an implicit statement to the claimant that the respondent did not consider any physician to be “authorized,” and that the claimant could select her own physician at her own risk. Greager v. Industrial Commission, supra.
Thus, whether the claim was “closed” or remained open, the ALJ correctly ruled that the right of selection passed to the claimant. Therefore, there was no error in ordering payment for the services rendered by Dr. Sherman and Dr. Burke.
IT IS THEREFORE ORDERED that the ALJ’s order, dated April 12, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 4, 1995 to the following parties:
Nathalie Wright, 8680 E. Alameda, #1429, Denver, CO 80231
City County of Denver, 110 16th St., Denver, CO 80202-5202
City County of Denver, 1445 Cleveland Place, Annex 1, #200, Denver, CO 80202
Clifford E. Eley, Esq., 1777 S. Harrison, Ste. 906, Denver, CO 80210
(For the Claimant)
John R. Palermo, Esq., 1445 Cleveland Pl., Ste. 303, Denver, CO 80202
(For the Respondent)
By: _______________________