W.C. No. 4-766-877.Industrial Claim Appeals Office.
May 6, 2009.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated December 29, 2008 that determined she suffered an occupational disease but denied the her claim for payment of certain medical expenses. Because the ALJ’s factual findings are insufficient to permit review, we set aside the disputed portion of the order and remand for further findings.
The ALJ determined that the claimant had proven by a preponderance of the evidence that she suffered an occupational disease to both her hands. The ALJ found that the treatment by Dr. Pise, Dr. Struck and Penrose Hospital was unauthorized. The ALJ further found that the treatment by Dr. Lund and Memorial Occupational Health Center was authorized. The claimant brings this appeal requesting that the ALJ’s order regarding disputed medical expenses involving her surgery be set aside.
In her brief, the claimant concedes that the sole evidence presented at the hearing was that the medical care the claimant received prior to surgery was obtained before anyone knew that her injury was an industrial injury. However, the claimant contends that at the hearing she also sought payment of medical expenses incurred as a result of her surgery. The claimant argues that while she initially sought medical care from her own providers, when one of her personal providers gave her a prescription for a workplace evaluation she delivered that prescription to her employer. At this initial conversation with her employer regarding her hand problems, the claimant contends she expressly advised the employer that her own physician had scheduled surgery and the employer did not object to that surgery. In response to the information that the claimant
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was scheduled for surgery the employer referred the claimant to a physician concerning the workplace evaluation and stated they would see her after her surgery. The claimant requests that the ALJ’s order be set aside on the issue of surgical costs and the matter be remanded with directions to enter an award ordering the respondents to pay for the medical expenses involved in her surgery.
The claimant essentially argues that there is no support for the ALJ’s finding that the claimant sought care from medical providers before reporting to the employer she had an alleged occupational disease. To the contrary, the claimant argues, it was essentially undisputed that the employer was aware of her impending surgery after sufficient notice of her compensable claim. The claimant argues that the expense incurred for the surgery occurred after the employer filled out a Notice of Claim and after the claimant saw the employer’s physicians.
We note that in her application for hearing the claimant endorsed the issue of medical benefits, and at the hearing specifically identified the question of whether the respondents were liable for the surgery. However, the ALJ’s order does not specifically address the respondents’ potential liability for the surgery. The order generally denies all medical benefits except for the bills from Memorial Occupational Health Center where the employer sent the claimant for the ergonomic evaluation. The claimant objects to the following finding made by the ALJ:
Claimant admitted at hearing that Dr. Pise and Dr. Struck were not authorized. She sought care from those providers before reporting to the employer that she had an alleged occupational disease. The record evidence also shows that Penrose Hospital was unauthorized. Claimant obtained tests at that facility upon referral by Dr. Pise.
Finding of Fact at 3, § 11.
In general, the employer or insurer has the right in the first instance to select the physician who attends the injured employee, but if the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician. Section 8-43-404(5)(a), C.R.S. 2008. Here the timing of the surgery and the employer’s knowledge regarding the surgery is not well documented in the file. The ALJ found that no medical reports from the claimant’s surgery were admitted into evidence. However, the ALJ did find that on April 18, 2008, the claimant delivered an ergonomic evaluation prescription to the employer and the claimant later underwent surgery on her hands. Findings of Fact at 3, § 6, 7. It is not clear whether the respondents dispute that the claimant’s surgery took place after the claimant delivered the ergonomic evaluation to the employer. It is further unclear whether the order can be read as finding that all of the
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claimant’s medical treatment, including the surgery, occurred before the employer was given notice that the claimant had a problem with her hands.
We are unable to ascertain from the order whether the ALJ, in generally denying medical benefits, implicitly found that the claimant had failed to demonstrate that the surgery occurred before notice was given to the employer. Further, the ALJ’s order does not determine when the employer had actual knowledge of the occurrence of the claimant’s injuries. Consequently, we are unable to ascertain whether the general denial of medical benefits was premised on the belief that the surgery occurred before the respondents were given notice of the possible occupational disease. Under these circumstances, it is necessary to remand the matter to the ALJ to issue specific findings of fact concerning whether the employer received notice of the occupational disease before the surgery took place. See Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969) (findings must indicate the evidence which was relied upon to reach the order); Su Cha Nilson v. Broadmoor Hotel, W.C. 4-177-384 (October 07, 1994); § 8-43-301(8), C.R.S. 2008.
This determination regarding the timing of the notice should include a finding of the sufficiency of the notice. The respondents argue that the claimant herself testified that when she told the employer she was having surgery she stated that it was not a workers’ compensation claim. Tr. at 28. Therefore, the respondents may not have received sufficient notice of a claimed work injury at the time of the claimant’s conversation with the employer representative involving the prescription for a workplace evaluation. However, this is a factual determination. See Dodson v. Felix Duran and Non-Insured, W.C. No. 3-109-126 (August 30, 1994). The applicable legal standard is whether the employer received a notice sufficient to cause a conscientious manager to believe that the claimant’s injuries may involve a compensable claim for workers’ compensation. See F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Therefore, we must remand the matter back for the ALJ to make a factual determination on the issue of when the employer received a sufficient notice of the claim to trigger its obligations to offer medical services. Here, in our view, the evidence is susceptible to various inferences, including that the employer had sufficient notice of the possible claim to trigger its duty to designate a physician willing to treat the claimant’s condition.
In addition, the order contains no finding regarding whether the respondents actually exercised their right to designate a medical provider with regard to the surgery. § 8-43-404(5)(a)(I)(A). Here the employer apparently referred the claimant for an ergonomic evaluation and at the same time engaged in some discussion regarding the prescription for those services. We note that whether this referral was a sufficient tender of the services of a physician at the time of injury is a question of fact for the ALJ. In this regard, it is unclear whether the referral for an ergonomic evaluation was actually a
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referral to a physician willing to treat the claimant’s compensable condition or was merely a referral to provide advice regarding the mechanisms of the claimant’s work station. See Wallace v. Stone Gate Homes, W. C. No. 4-650-504 (April 18, 2006). The ALJ made no determination regarding whether there was a sufficient tender of the medical services and in this regard we conclude that the ALJ’s findings of fact are insufficient to permit appellate review of this issue.
The ALJ’s findings of fact are insufficient to permit appellate review regarding whether the ALJ properly denied the claim for reimbursement for the costs of the surgery. The matter is remanded to the ALJ for additional findings concerning when the employer received a sufficient notice of the claim to trigger its obligation to offer medical services and whether there was a sufficient tender of the medical services by the employer. Depending on these findings, the ALJ should further determine whether the right of selection at any point passed to the claimant. The claimant’s entitlement to medical benefits should then be determined based upon the factual findings.
Of course, nothing in the foregoing order should be construed as dictating any particular outcome on these issues.
IT IS THEREFORE ORDERED that the ALJ’s order issued December 29, 2008 is set aside insofar as it denied the claimant’s request for reimbursement for surgical costs for entry of a new order on the issue consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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NANCY L MILLER, WOODLAND PARK, CO, (Claimant).
POLICY STUDIES INC., Attn: BRUCE DANFELSER, DENVER, CO, (Employer).
CHUBB GROUP OF INSURANCE COMPANIES, Attn: SCOTT DANFELSER, ENGLEWOOD, CO, (Insurer)
LEE KINDER, LLC, Attn: KATHERINE M. LEE, ESQ., DENVER, CO, (For Respondents).
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