W.C. No. 4-351-350Industrial Claim Appeals Office.
December 2, 1998
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) dated April 21, 1998. The claimant contends the ALJ erred insofar as he determined that Dr. Cobb and the providers to whom he referred the claimant are not authorized treating physicians. We affirm.
The claimant filed a workers’ compensation claim alleging a back injury. The respondents filed a Notice of Contest which denied liability for the injury.
The ALJ’s pertinent findings of fact may be summarized as follows. The claimant suffered a compensable back injury on December 23, 1996. The employer referred the claimant to the emergency room of the Poudre Valley Hospital for treatment. The claimant obtained follow-up treatment from the Occupational Health Services (OHS) component of the Poudre Valley Hospital, and OHS is an authorized provider. OHS placed the claimant at maximum medical improvement (MMI) in January 1997. The claimant subsequently continued to experience pain and symptoms from the industrial injury. However, instead of returning to OHS for further treatment, the claimant discussed his injury with Dr. Cobb who referred him to Dr. Coester for treatment. On December 29, 1997, Dr. Coester performed surgery.
The ALJ further found that neither the respondents nor OHS referred the claimant to Dr. Cobb or Dr. Coester. Therefore, the ALJ determined that Dr. Cobb and the providers to whom he referred the claimant are not authorized treating physicians. In addition the ALJ determined that there was no refusal to treat by OHS. Consequently, the ALJ denied the claimant’s request for a change of physician and concluded that the respondents are not liable for Dr. Coester’s treatment.
On review, the claimant recognizes that § 8-43-404(5), C.R.S. 1998, affords the respondents a statutory right, in the first instance, to select a physician to treat the industrial injury, and that the right of first selection does not pass to the claimant unless the respondents fail to provide a physician willing to treat the injury. Section 8-43-404(5) also provides that the claimant may not change physicians without permission from the respondents or an ALJ. If a claimant obtains unauthorized care, the respondents are not liable to pay for it Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
However, the claimant contends that § 8-43-404(5) is not applicable to this claim because the respondents denied liability and were not providing workers’ compensation benefits when he began treating with Dr. Coester. The claimant argues that under these circumstances there was no “authorized treating physician” and he was not required to obtain the respondents’ permission to select a treating physician. We disagree.
We have previously held that the respondents’ statutory right to select the treating physician is not dependent on an admission of liability. Dominguez v. Monfort Colorado, W.C. No. 3-857-241
(February 27, 1991), aff’d, on other grounds, Monfort of Colorado v. Industrial Claim Appeals Office, (Colo.App. No. 91CA0378, December 12, 1991) (not selected for publication); Cantrell v. Against Domestic Abuse, W.C. No. 4-178-113 (June 24, 1997). Rather, the respondents may deny liability and retain their right to select a treating physician in the event they later admit liability or are found liable for the injury. The claimant’s arguments do not persuade us to depart from our conclusions i Dominguez v. Monfort of Colorado, supra.
Furthermore, there is substantial evidence to support the ALJ’s findings of fact and the findings support the ALJ’s order. The claimant admitted that after he reported the injury to the employer he was referred to the emergency room and was later referred to OHS where he received additional treatment. (Tr. pp. 29-31, 50). The claimant also stated that neither OHS nor the respondents referred him to Dr. Coester. (Tr. pp. 54, 55).
Similarly, Dr. Cobb testified that neither OHS nor the respondents referred the claimant to him for treatment. (Tr. pp. 22, 23). Under these circumstances, the ALJ could, and did, reasonably infer that the claimant was not referred to Dr. Cobb or Dr. Coester in the normal progression of authorized treatment See City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997) Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). Consequently, the ALJ correctly determined that the respondents are not liable for costs of the surgery performed by Dr. Coester See Vanadium Corp. of America v. Sargent, 134 Colo. 555, 307 P.2d 454 (Colo. 1957).
Moreover, the claimant did not present evidence that OHS refused his request for additional treatment. To the contrary, the claimant admitted that he never went back to OHS after MMI. (Tr. p. 54). Consequently, the claimant could not change physicians without permission from the respondents or the ALJ See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996). Because the ALJ denied the claimant’s request for a change of physician, the ALJ did not err in refusing to hold the respondents’ liable for additional treatment by Dr. Coester.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 21, 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. 1998.
Copies of this decision were mailed December 2, 1998
to the following parties:
William F. Yeck, 800 E. Elizabeth St., Fort Collins, CO 80524
National Baromedical Services, Poudre Valley Hospital, 1024 Lemay Ave., Fort Collins, CO 80524
Randall M. Willard, Esq., 315 W. Oak St., Suite 501, Fort Collins, CO 80521 (For Claimant)
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Andrew Bantham, Esq., 2629 Redwing Rd., #330, Fort Collins, CO 80526
BY: ____________