W.C. No. 4-674-408.Industrial Claim Appeals Office.
August 4, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) dated March 30, 2011, that determined the right to select the authorized treating physician had passed to the claimant. We modify the order and as modified affirm it.
This matter has previously been before us. In an order dated January 12, 2011, we remanded the matter for the ALJ’s determination of the narrow issue: whether the respondents timely designated a medical provider in Florida once the employer or insurer had some knowledge of facts that would lead a reasonably conscientious person to believe that the claimant was relocating to Florida and would require treatment in Florida.
In her order dated March 30, 2011, the ALJ found that the claimant had proven by a preponderance of the evidence that the respondents did not timely designate a treating physician. Therefore, the ALJ determined the right of selection had passed to the claimant and that she had selected Dr. Lebowitz to be her new treating physician.
I.
The respondents on appeal first contend that the ALJ exceeded the scope of the remand. The respondents argue that in the first appeal, we had dismissed the claimant’s contention that the ALJ had erred in deciding the issue of change of physician. The respondents argue that on remand the claimant has re-argued the issue of change of physician that previously had been decided. We agree in part.
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In the original appeal, the claimant had argued that the ALJ erred in deciding the issue of change of physician because the ALJ incorrectly analyzed the claim under § 8-43-404(5)(a) C.R.S., which discusses the process for requesting a change of physician. We were not persuaded that a remand on that ground was necessary.
As we understand the respondents, they contend in part that the ALJ exceeded the scope of remand in making the following findings: 1) by letter dated March 5, 2010, the claimant advised the insurer that her move to Florida had taken place; and 2) on March 16, 2010, respondents’ counsel characterized the claimant’s request for a new medical provider in Florida as a request for a change of physician. However, in our view factual findings addressing when the claimant advised the insurer of her move to Florida and the respondents’ reaction to such information are well within the parameters of the remand, which was to determine whether the respondents had timely designated a medical provider in Florida.
However, we agree with respondents’ argument that the ALJ exceeded the scope by addressing an alleged refusal of treatment by the respondents’ physician, Dr. Mehalik. That was not raised as an issue and was not within the purview of our remand. Therefore, findings 23 and 24 shall be stricken as well as the conclusions based on these findings.
II.
The respondents also argue that there was no persuasive evidence that the respondents were aware of the claimant’s intention to relocate in January 2010 and it was questionable if they were on notice in February 2010. The respondents further argue that they were not given actual notice of the claimant’s relocation until April 12, 2010, at which point they were only given a P.O. Box mailing address rather than the claimant’s residential address. The respondents assert that the claimant was evasive and intentionally did not provide respondents with her address until almost a month after her arrival.
However, even if the respondents were not aware in January or February, the respondents concede in their brief that on March 1, 2010 they were aware that the claimant was relocating to Florida. They further concede that they employed the help of a nurse case manager to assist in locating a physician for the claimant and notified the claimant on May 17, 2010 that the claimant had an appointment with Dr. Mehalik set for June 7, 2010. Although there were certainly other facts presented on the issue of designation of a physician, the conceded facts alone could support the ALJ’s determination that the respondents had some knowledge of facts that would lead a reasonably conscientious person to believe that the claimant was relocating to Florida and
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would require treatment in Florida. Moreover, in our view, the claimant’s testimony, which the ALJ found to be credible, and the exhibits constitute substantial evidence supporting the ALJ’s determination that the right of selection had passed to the claimant.
The questions of whether the respondents failed to timely tender the services of a physician and the right of selection passed to the claimant are questions of fact for resolution by the ALJ. See Ruybal v. University Health Sciences Center, 768 P.2d 1259 (Colo. App. 1988); Buhrmann v. University of Colorado Health Sciences Center, W.C. No. 4-253-689 (November 4, 1996); Tellez v. Teledyne Waterpik, W.C. No. 3-990-062, (March 24, 1992), aff’d, Teledyne Water Pic v. Industrial Claim Appeals Office, (Colo. App. 92CA0643, December 24, 1992) (not selected for publication). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). The issue is not whether there is substantial evidence, which, if credited, might support a contrary determination, but whether there is substantial evidence that supports the ALJ’s findings. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). We conclude that standard has been met.
III.
The respondents finally contend that the ALJ’s conclusions of law are not supported by the evidence and the ALJ misapplied the standard of when a conscientious manager should have known the claimant was in need of care in Florida. We note that the respondents appear to be contending that the arrangement requested by the claimant of having Dr. Leibowitz become a treating physician and have Dr. Leibowitz’s recommendations go through Dr. Castro is unreasonable. The reasonableness and necessity of this type of medical treatment may be an issue, but it is not within the scope of the present remand.
Further, we do not agree with the respondents that the ALJ’s reliance on Rogers v. Industrial Claim Appeals Office, was error. In our view Rogers, although dealing with the initial tender of medical care, is instructive on the employer’s exercise of the right of selection and on the requirement of when medical treatment must be tendered. The respondents argue that the conclusion of law exceeded the instructions on remand and should be reversed because the ALJ concluded that the respondents had not found a physician willing to treat the claimant when the issue was timeliness of the designation. The respondents argue the ALJ erred in relying upon Bunch v. Industrial Claim Appeals Office of State of Colorado, 148 P.3d 381 (Colo. App. 2006) and Jones v. Adolph Coors
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Co., 689 P.2d 681 (Colo. App. 1984) because they dealt with the issue of failure of the employer to designate a physician in the first instance.
However, we note that in our order of remand that we cited bot Bunch v. Industrial Claim Appeals Office of State of Colorado, and Jones v. Adolph Coors Co. We still are of the opinion that these cases are instructive on the respondents’ duty to designate a medical provider when triggered by knowledge of facts that would lead a reasonably conscientious person to believe that the claimant was relocating to Florida and would require treatment in Florida.
IV.
The claimant contends that the respondents’ appeal is frivolous and is intended to harass, cause delay, or unnecessarily increase the cost of litigation. Therefore, the claimant requests attorney fees and costs pursuant to § 8-43-301(14) C.R.S. We deny the request for attorney fees.
Although § 8-43-301(14), C.R.S. authorizes an award of attorney fees and costs under certain circumstances, such an award is not appropriate if there is a reasonable basis for the appeal. BCW Enterprises Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo. App. 1997). Inasmuch as we modify the ALJ’s order in part, we do not view the corresponding arguments to be frivolous. Neither do we find respondents’ remaining arguments to be frivolous, even though they were unsuccessful. Accordingly, we deny the claimant’s request for attorney fees
IT IS THEREFORE ORDERED that the ALJ’s order dated March 30, 2011 is modified to strike findings 13, 23, and 24 and the corresponding conclusions. As modified the order is affirmed.
IT IS THEREFORE FURTHER ORDERED that the claimant’s request for attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Dona Rhodes
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SIBYL A RIES, 5660 BAYSHORE RD #27, NORTH FT MYERS, FL, (Claimant).
SUBWAY OF CHERRY CREEK, INC., ENGLEWOOD, CO, (Employer).
TRUCK INSURANCE EXCHANGE, Attn: TAMMY DeWALT, CLAIMS ADJUSTER, C/O: FARMERS INSURANCE, OKLAHOMA CITY, OK, (Insurer).
ALVARADO, LaFORETT MARTINEZ TENREIRO, LLC, Attn: ELSA MARTINEZ-TENREIRO, ESQ., DENVER, CO, (For Claimant).
VARNELL ASSOCIATES, Attn: JOE M. ESPINOSA, ESQ., DENVER, CO, (For Respondents).
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