W.C. No. 4-395-458Industrial Claim Appeals Office.
February 28, 2000
FINAL ORDER
The respondents seek review of a Corrected Order of Administrative Law Judge Felter (ALJ) which found the claimant is entitled to temporary total disability benefits, that certain medical providers are authorized, and the claimant is entitled to file a petition to reopen for purposes of submitting additional medical evidence. We affirm the order with respect to the authorization issue. We dismiss the petition to review without prejudice with respect to the remaining issues.
In this case, the claimant alleged he sustained a compensable back injury on or about August 14, 1998, as a result of driving a truck with a defective seat. The claimant also alleged he sustained a second low back injury on September 18, 1998, when adjusting the “tandem” wheels of the truck. Alternatively, the claimant alleged that the problems he experienced on September 18, 1998, are a continuation of the August 14 injury.
Purporting to resolve conflicts in the evidence, the ALJ determined the claimant did not sustain a separate injury on September 18. Instead, the ALJ found that the “totality of the evidence demonstrates” the claimant sustained a “gradual exacerbation or aggravation, of his underlying mechanical problems of the low back by driving his truck on the defective seat and that this was work related.”
Concerning medical treatment, the ALJ found that on August 14 the employer referred the claimant to Dr. Smith in Ontario, California. Dr. Smith’s report dated August 19, 1998, states that he conducted an examination, took x-rays, dispensed Motrin, and instructed the claimant to “follow-up with doctor in Colorado.” Thereafter, the claimant continued working.
On September 18, 1998, the claimant was in California when he had a telephone conversation with his supervisors, Usher and Robbins. The ALJ found that the telephone conversation occurred at 3:30 p.m., and it was decided the claimant and the employer should “part ways.” At 3:51 p.m. the claimant e-mailed Robbins stating that he “threw [his] back out” and was going to have to go home (to Arizona). Robbins then e-mailed the claimant that he would need to call ASAP. The claimant replied that he was not near a telephone, and at 4:35 p.m. e-mailed Robbins that “I am just going to doctor.” At 4:52 p.m., Robbins e-mailed the claimant and replied, “okay . . . need you to let me know what doctor says.”
The ALJ found that on September 19, 1999, claimant visited Dr. Romay, D.C. in Arizona. Dr. Romay then referred the claimant to the Mojave Valley Hospital, and claimant was then referred to a series of providers. At 1:13 p.m. on September 19, the claimant e-mailed the employer that “I gave you the doctor’s note for my injury.” Robbins testified that she had a telephone conversation with the claimant and advised him that the employer required the report of a medical doctor, not a chiropractor. (Tr. p. 86).
In an order dated July 19, 1999, the ALJ determined claimant was temporarily and totally disabled by the August 14 injury from September 19, 1998, through February 11, 1999. However, the ALJ did not enter a specific award for temporary disability benefits because the record did not contain any evidence establishing the claimant’s average weekly wage. (Finding of Fact 26). The ALJ also concluded that Dr. Romay, and all providers to whom the claimant was subsequently referred, are authorized providers. In support, the ALJ determined that the employer made “no specific referral” for medical treatment on September 18, 1998, when the claimant reported the alleged injury. Consequently, the ALJ held the right of first selection passed to the claimant.
The claimant filed a Motion for a Corrected Order on August 9, 1999. The motion alleged that the ALJ improperly terminated temporary disability benefits on February 11, 1999, and attached medical reports in support of this contention. Two of the reports were dated prior to the hearing, and two of the reports were dated subsequent to the July 19 order.
On August 18, 1999, the ALJ entered the Corrected Order. The ALJ adopted and reentered the prior findings of fact and conclusions of law. The ALJ refused to consider any of the medical reports submitted with the claimant’s Motion for Corrected Order. The ALJ also stated that the medical reports issued after the July 19 order might constitute newly discovered evidence, and opined that a petition to reopen “is the appropriate avenue of recourse.”
I.
On appeal, the respondents first contend the ALJ’s determination that the August 14 injury was the cause of the claimant’s disability and wage loss commencing September 19, is not supported by the evidence. We conclude that there is no final and appealable order concerning temporary disability benefits. Therefore, these arguments are premature.
Section 8-43-301(2), C.R.S. 1999, provides that a party dissatisfied with an order “which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty,” may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Thus, orders which hold the respondents liable for benefits without determining the amount of benefits to be paid are not final and reviewable under the statute. See United Parcel Service, Inc., v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0540, June 24, 1999). For this reason, we have previously held that orders assessing liability for temporary disability benefits, without determining the claimant’s average weekly wage, are interlocutory because the amount of benefits has not finally been determined. Eg. Lindsey v. Stand-By Personnel, W.C. No. 4-266-504 (June 27, 1996). Finally, we note that orders may be partly final and reviewable, and partly interlocutory. Oxford Chemicals, Inc. v. Richardson, 782 to P.2d 843 (Colo.App. 1989).
Here, there has been no determination of claimant’s average weekly wage. Therefore, the ALJ’s order, insofar as it determines the respondents’ liability for temporary total disability benefits, is not currently subject to review. Accordingly, we must dismiss without prejudice that portion of the petition to review which addresses temporary total disability benefits.
II.
The respondents also contest the ALJ’s Corrected Order insofar as it states that a petition to reopen is the proper procedure if the claimant wishes to attack the award of temporary disability benefits based on the “newly discovered evidence.” However, we conclude there is no final and reviewable order with respect to the claimant’s right to relief by way of a petition to reopen. Indeed, the record does not reflect the claimant has even filed a petition to reopen. The ALJ’s statements concerning the proper avenue for attacking the award of temporary total disability benefits do not involve an award or denial of benefits, nor the award or denial of a penalty. Consequently, we may not review the issue at this time. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986).
III.
The respondents’ final contention is that the ALJ erred in awarding medical benefits because the treatment rendered by Dr. Romay and all subsequent providers was not authorized. The respondents reason that because the ALJ determined there was no injury on September 18, they had no obligation to appoint a treating physician. Thus, the respondents reason that the right of first selection did not pass to the claimant. We disagree.
Under § 8-43-404(5)(a), C.R.S. 1999, the employer or insurer has the right, in the first instance, to select the treating physician. The right to select the treating physician must be exercised when knowledge of the injury first comes to the employer’s attention, or the right of first selection passes to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). Further, the employer’s right to select the physician exists independently of its willingness to admit liability for the alleged injury. This is true because the employer and insurer retain an interest in being apprised of the course of treatment in the event they are later found liable for the injury. Yeck v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA2497, August 19, 1999).
Here, the respondents do not deny the claimant reported an injury on September 18, nor do they allege that they designated a specific treating physician for the claimed injury. In view of the fact that the respondents could have designated a treating physician while maintaining their right to contest the claim, we disagree with respondents’ argument that the ALJ’s finding that there was no separate injury on September 18 governs the authorization issue. This conclusion in no way infringes on the respondents’ right to control medical care. In fact, the claimant notified the employer of the alleged injury and afforded the employer a full opportunity to designate a treating physician. The employer did not do so, and the ALJ correctly ruled that the right of first selection passed to the claimant. Our holding is not altered by the fact that on September 19 the employer advised the claimant it would require a report from a medical doctor rather than a chiropractor. By that time, the right of first selection had already passed to the claimant.
Neither do we view this case as one in which the claimant improperly sought unauthorized medical treatment for the August 14 injury. On September 18 the claimant advised the employer that he was having back problems and intended to obtain treatment from a medical provider near his hometown in Arizona. The employer did not object to this procedure, and in fact directed the claimant to advise the employer of what the doctor said. Under these circumstances, the employer conveyed to the claimant the impression that it was proper to proceed in this fashion, and is not now in a position to object to the providers selected by the claimant. Greager v. Industrial Commission, 701 P.2d 168
(Colo.App. 1985).
IT IS THEREFORE ORDERED that the respondents’ petition to review the ALJ’s Corrected Order dated August 18, 1999, is dismissed without prejudice insofar as it disputes the award of temporary disability benefits, and disputes the ALJ’s statement that the claimant may file a petition to reopen if he wishes to submit additional evidence.
IT IS FURTHER ORDERED that the ALJ’s Corrected Order is affirmed insofar as it awards medical benefits.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
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. 1999.
Copies of this decision were mailed February 28, 2000
to the following parties:
Angelo Zaffuto, P.O. Box 1439, Topock, AZ 86436
Angelo Zaffuto, 1012 Lansing St., Aurora, CO 80010-4122
Navajo Express, Inc., 5300 E. 56th Ave., Commerce City, CO 80022-3827
Stephanie Kuntz, Lumbermen’s Underwriting Alliance, 15055 W. Sequoia Pkwy., #120, Portland, OR 97224-7197
Kenneth M. Platt, Esq., and David M. Pantos, Esq., 1732 Race St., Denver, CO 80206 (For Claimant)
Gregory K. Chambers, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Respondents)
BY: A. Pendroy