Opinion
W.C. No. 4-705-940.
April 29, 2009.
FINAL ORDER
The respondent seeks review of a corrected order of Administrative Law Judge Jones (ALJ) dated October 2, 2008, that determined that the claimant sustained a compensable injury and that awarded compensation and medical benefits. In connection with the appeal of ALJ Jones' order, the respondent also seeks review of an order entered by ALJ Krumreich dated May 15, 2008, determining that the claimant was an employee rather than an independent contractor. We affirm both orders.
Prior to the hearing held in this matter, ALJ Krumreich entered an order dated May 15, 2008, granting the claimant's motion for summary judgment on the issue whether the claimant was an employee or independent contractor. ALJ Krumreich entered factual findings that the claimant entered into a lease agreement with the employer, which is an "intrastate for hire common carrier" which operates under the authority of the Colorado Public Utilities Commission. Under the terms of the lease agreement, the claimant was required to furnish and maintain a vehicle that he was to drive as a taxicab. The lease agreement provides that the claimant, designated at the "driver," is an independent contractor. The claimant was covered by an occupational accident insurance policy written by National Union Fire Insurance Company. The claimant was not offered workers' compensation coverage and the lease agreement requires that the driver maintain coverage under a workers' compensation or private insurer that provides similar coverage. ALJ Krumreich also found that the occupational accident policy did not provide coverage that was comparable to the coverage provided by the workers' compensation system. Specifically, the accident policy contained limitations on wage loss benefits, a lower cap on the benefit amount, and limitations on medical benefits.
ALJ Krumreich noted that § 8-40-301(5) C.R.S. 2008 provides that the definition of "employee" excludes any person working as a driver under a lease agreement pursuant to § 40-11.5-102. He concluded that the agreement here was one pursuant to § 40-11.5-102, and that the material facts relevant to application of the law was undisputed and that, accordingly, he could determine the claimant's status as a matter of law. Because ALJ Krumreich had found that the insurance coverage provided to the claimant under the occupational accident policy was not comparable to the benefits provided by the workers' compensation system, he concluded that the claimant was not an independent contractor under the agreement. ALJ Krumreich therefore granted the claimant's motion for summary judgment and ruled that he is an employee for purposes of this claim.
The respondents appealed ALJ Krumreich's order granting summary judgment, and the appeal was apparently held in abeyance on account of its interlocutory nature. The appeal of ALJ Krumreich's order has therefore been brought in connection with this appeal of the ALJ's order, and the arguments have been presented here. Accordingly, we will address the respondent's arguments regarding ALJ Krumreich's order in this appeal.
Following entry of ALJ Krumreich's order, a hearing was held on the issues of the compensability of the claimant's injury and his entitlement to medical benefits, temporary total disability benefits, permanent partial disability benefits and penalties for the respondent's failure to admit or deny and for its failure to insure. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked as a taxi driver for the employer, and was injured in an accident on October 28, 2006, when his cab was struck from behind by another vehicle. During the several days following the accident the claimant unsuccessfully attempted to contact the employer's claims manager, Christine Doerr. He eventually sought treatment from a medical provider at Colorado Accident and Trauma, whom he saw on November 7, 2006. On November 21, 2006, the claimant sent a copy of his worker's claim for compensation to the employer and on December 1, 2006, Doerr acknowledged receipt of the claim and its allegedly work-related nature, and she sent information to the claimant permitting him to pursue a claim through AIG Insurance. Doerr did not object to the physicians who were treating the claimant, nor did she refer him to any provider designated by the employer. The claimant continued to be treated by various physicians and in September 2007 Doerr received medical records from the claimant. She did not object to his treatment by any provider and she did not refer him to a designated provider. On September 27, 2007 the employer filed a notice of contest denying liability for the claim. The claimant underwent surgery on his shoulder and was placed at maximum medical improvement on January 28, 2008, with permanent impairment of the shoulder and of the lumbar spine. The report setting forth the claimant's permanent impairment was from Dr. Nadler and was dated March 11, 2008. On June 30, 2008 the respondent sought to obtain a Division-sponsored independent medical examination (DIME) by filing a Notice and Proposal to Select Independent Medical Examiner.
Based upon her factual findings the ALJ concluded that the claimant sustained a compensable injury. She awarded temporary total disability benefits from October 26, 2007 to January 27, 2008, at a stipulated rate. She also ordered the respondent to pay the medical bills incurred by the claimant for treatment from Colorado Accident and Trauma and Mile Hi Medical Group, which the ALJ concluded were both authorized to provide treatment. She ordered the respondent to pay permanent partial disability benefits based upon the impairment ratings of 19 of the whole person for the lumbar spine and seven percent of the whole person for the right shoulder. She ordered the compensation and benefits to be increased by 50 percent on account of the employer's failure to insure, and she imposed a penalty for the employer's failure to admit or deny the claim on a timely basis.
The respondent appealed the ALJ's order and argues that ALJ Krumreich erred in granting the claimant's motion for summary judgment on the issue whether the claimant was an employee. The respondent also argues that the ALJ erred in concluding that the claimant sustained a compensable injury, that she erred in awarding penalties for the employer's failure to admit or deny, that she erred in awarding permanent partial disability benefits, and that she erred in concluding that certain medical providers were authorized.
I.
The respondent first argues that ALJ Krumreich erred in granting summary judgment on the issue whether the claimant was the employer's employee or an independent contractor. We disagree that ALJ Krumreich committed reversible error.
The respondent first argues that the dispute over the claimant's status as an alleged employee was not properly one resolved on summary judgment. In this respect, the respondent argues that certain disputed facts precluded such an order. However, it is well-established that summary judgment is an available procedure in a workers' compensation proceeding. The Office of Administrative Courts (OAC) has promulgated a procedural rule authorizing summary judgment in workers' compensation proceedings. OACRP Rule 17 allows an ALJ to enter summary judgment where there are no disputed issues of material fact. See Office of Administrative Courts' Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 at 7. Moreover, to the extent that it does not conflict with OACRP 17, C.R.C.P. 56 also applies in workers' compensation proceedings. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (the Colorado rules of civil procedure apply insofar as they are not inconsistent with the procedural or statutory provisions of the Act). Summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo.App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundaton Health Plan v. Sharp, 741 P.2d 714 (Colo.App. 1987). However, once the moving party establishes that no material fact is in dispute, the burden of proving the existence of a factual dispute shifts to the opposing party. The failure of the opposing party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo.App. 1991).
In the context of summary judgment, we review the ALJ's legal conclusions de novo. See A.C. Excavating v. Yacht Club II Homeowners Association, 114 P.3d 862 (Colo. 2005). However, pursuant to § 8-43-301(8), C.R.S. 2008, we have authority to set aside an ALJ's order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law.
Here, the question on review is generally whether applicable law supports the ALJ's conclusion that undisputed facts compelled the conclusion that the claimant was an employee under § 8-40-301(5), C.R.S. 2008 and § 40-11.5-102, C.R.S. 2008. We conclude that the ALJ did not err in his conclusion that the claimant is an employee under the applicable law.
We recently resolved similar contentions to those made here. See Abramczuk v. Brisk Transportation, W.C. No. 4-688-350 (November 19, 2007) affd. Brisk Transportation v. Industrial Claim Appeals Office, No. 07CA2388 (Colo.App. July 17, 2008) (not selected for publication). In Abramczuk we noted that § 8-41-301, C.R.S. 2008 requires that in order to recover workers' compensation benefits a claimant must be the respondent's "employee" at the time of the injuries. An individual who is an independent contractor is not an "employee." Section 8-40-202(2)(a), C.R.S. 2008, provides:
Notwithstanding any other provision of this section, any individual who performs services for pay for another shall be deemed to be an employee, irrespective of whether the common-law relationship of master and servant exists, unless such individual is free from control and direction in the performance of the service, both under the contract for performance of service and in fact and such individual is customarily engaged in an independent trade, occupation, profession, or business related to the service performed.
However, we also observed in Abramczuk that under § 8-40-301(5), a person working as a driver under a lease agreement meeting the requirements set forth in § 40-11.5-102, is excluded from the definition of "employee." Further, a lease agreement which meets the requirements of § 40-11.5-102(4) creates a presumption that the lessee is an independent contractor and that presumption may only be overcome by "clear and convincing evidence." Section 8-40-301(6), also provides that any person working as a driver with a common carrier shall be offered workers' compensation insurance coverage by Pinnacol Assurance or similar coverage consistent with the requirements set forth in § 40-11.5-102 (5). Section 40-11.5-102(5)(b), defines the term "similar coverage" as disability insurance for on and off-the-job injuries, health insurance and life insurance.
We largely relied in Abramczuk on the court of appeals' opinion in USF Distribution Services, Inc. v. Industrial Claim Appeals Office, 111 P.3d 529 (Colo.App. 2004), in which the issue was whether the claimant's failure to secure complying coverage changed his status from that of an independent contractor to that of an employee. The court noted that § 8-40-301(5) was enacted simultaneously with § 8-40-301(6) and § 40-11.5-102(5) and determined that the purpose of these amendments was to clarify that drivers working for contract carriers under qualifying lease agreements are generally to be treated as "independent contractors" for purposes of workers' compensation benefits liability. In this regard, the court recognized that § 8-40-301(5) evinces a clear legislative intent to exclude leased drivers from the definition of "employee."
However, of great importance to the court's holding, it also observed that when the statute is viewed in combination with both § 8-40-301(6) and § 40-11.5-102(5), it becomes clear that the exclusion takes effect only when the lease agreement includes complying coverage. The scheme created by these statutes shares the same purpose underlying the statutory employer provision, see § 8-41-401(1)(a), C.R.S. 2008, which is to prevent an employer from evading compensation coverage by contracting out work instead of directly hiring the workers.
The court further explained in USF Distribution Services that pursuant to § 8-40-202(2)(c), nothing in § 8-40-202(2)(a) or (b) was intended to conflict with § 8-40-301 or to otherwise relieve any obligation imposed by that statute. The court further reasoned that excepting the driver from the definition of an "employee" under § 8-40-202(2)(a) might conflict with the obligation to provide complying insurance imposed in § 8-40-301(6). Therefore the court concluded that § 8-40-202(2)(a) did not apply to the truck driver in USF Distribution Services. The court further ruled that since the claimant established that the policy negotiated through respondent did not comply with the requirements set forth in § 40-11.5-102(5), the claimant was an employee at the time of his industrial injury.
As we read USF Distribution Services ¸ a driver can establish his status as an employee rather than as an independent contractor either by overcoming the presumption of independence established by § 40-11.5-102(4), or by showing that he was not offered coverage that satisfied the requirements of § 40-11.5-102(5). Here, we disagree with the respondent's argument that the interpretation of the alternative policy was a matter that had to be submitted to an ALJ at a hearing. Rather, we have examined the policy and we do not disagree with the ALJ's conclusion that because the policy limited medical benefits and compensation it was not in compliance with § 40-11.5-102(5)(b), which requires that the benefits offered by the policy "shall be at least comparable to the benefits offered under the workers' compensation system." In our view ALJ Krumreich did not err in concluding that the limitations of the claimant's policy made it as a matter of law not "comparable" to the benefits offered under the workers' compensation system.
II.
The respondent also argues that the ALJ erred in concluding that the claimant sustained any injury in the compensable accident. Specifically, the respondent points out discrepancies in the claimant's testimony and in the evidence and argues that he was not credible and should have been disbelieved by the ALJ. We reject this argument.
As the respondent correctly observes, where the claimant=s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because these questions are factual in nature, we are bound by the ALJ=s determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-304(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo App. 2003). This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). In this regard, we note that inconsistencies, contradictory evidence, and incomplete testimony are not uncommon in workers= compensation claims and it was the ALJ=s sole prerogative as the fact finder to resolve any inconsistencies in the testimony. See West v. Aranda (Colo.App. No. 92CA1576, July 1, 1993) (not selected for publication). Despite the respondent's arguments, we may only interfere with the hearing officer=s credibility determinations in extreme circumstances, such as where the testimony believed by the hearing officer was rebutted by such hard, certain evidence that it would be error as a matter of law to credit it. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1970). That is not the case here and we are therefore not at liberty to disturb the hearing officer=s findings.
Here, the ALJ's conclusion that the claimant sustained injuries in the accident is amply supported by the factual record, including the claimant's testimony and the medical evidence. It was a reasonable inference from the claimant's testimony regarding the mechanism of the accident and the resulting pain in his neck and shoulder that he sustained an injury in the accident. Tr. at 49, 52.
Because of our resolution of this issue, it is unnecessary for us to address the claimant's contention that the respondent is precluded by a judicial admission from contending that the claimant did not sustain a compensable injury.
III.
The respondent also argues that the ALJ erred in imposing penalties for the employer's failure to admit or deny. We disagree that the ALJ committed any reversible error.
Pursuant to § 8-43-203(1)(a), C.R.S. 2008, an employer or, if the employer is insured, the insurer, must provide notice admitting or denying liability within twenty days of the date it becomes aware of the employee's alleged disabling injury. Pacesetter Corp. v. Collett, 33 P.3d 1230, 1232 (Colo.App. 2001). If such notice is not timely filed, the employer or insurer "may become liable to the claimant, if the claimant is successful on the claim for compensation, for up to one day's compensation for each day's failure to so notify." Section 8-43-203(2)(a), C.R.S. 2008.
Here, the ALJ found with record support that the respondent failed to supply notice admitting or denying liability in this matter within 20 days after the employer was notified of the motor vehicle accident. The ALJ further found that the notice was due on December 21, 2006. The respondent did not admit or deny liability until a notice of contest was filed on September 27, 2007. The ALJ determined that the appropriate amount of a penalty was one day's compensation for each day's failure on the part of the respondent to file the proper notices.
Because the ALJ's authority is discretionary, we may not disturb the ALJ's determination of the amount of the penalty to be imposed in the absence of fraud or an abuse of discretion. See Associated Business Products v. Industrial Claim Appeals Office, 126 P.3d 323 (Colo.App. 2005); Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986); Brunetti v. Industrial Commission, 670 P.2d 1246 (Colo.App. 1983). There is no assertion of fraud in this case. The legal standard for review of an alleged abuse of discretion is whether, under the totality of the factual circumstances at the time of the ALJ's determination, the ALJ's order "exceeds the bounds of reason." Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). The application of this substantial evidence standard includes consideration of whether the ALJ's determination is supported by substantial evidence and the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
In Associated Business Products the court reviewed a penalty for constitutional excessiveness, to determine whether its amount violated the due process protections of the federal and state constitutions and the excessive fines clause of the Eighth Amendment. The court set forth three factors to be used to determine whether those constitutional limits had been exceeded by the amount of the penalty. Specifically, the court considered (1) the reprehensibility of the conduct, (2) the disparity between the harm caused by the violation and the penalty, and (3) the difference between the penalty and civil damages that could be imposed in comparable cases. As we read Associated Business Products the court held that these factors are appropriate in reviewing whether a penalty is unconstitutionally excessive, or "grossly disproportionate." Associated Business Products, 126 P.3d at 326; See also Pueblo School District No. 70 v. Toth, 924 P.2d 1094, 1100 (Colo.App. 1996). However, subject to constitutional limitations, the ALJ's decision regarding the amount of the penalty remains highly discretionary, which implies that the ALJ may consider a wide variety of factors.
The burden is on the party who is penalized to show mitigation tending to reduce the amount of the penalty. Here, the ALJ noted that there was "no persuasive evidence of mitigating factors." Corrected Order at 9, ¶ 16. Therefore, she imposed the statutory maximum of one day's compensation for the period during which the violation persisted. It is, of course, solely within the province of the ALJ to weigh the evidence and determine its probative value. Here, the order makes clear that the ALJ was unpersuaded that any factors worked to mitigate the amount of the penalty. Given her factual findings, we cannot state that she abused her discretion in concluding that the respondent had not showed that factors weighed in favor of mitigating the penalty. Finally, we agree with the claimant's argument that the "cure" provision in § 8-43-304, C.R.S. 2008 does not apply to § 8-43-203(1)(a). We perceive nothing in either statute even suggesting that the cure provision in § 8-43-304, which provides for a penalty of up to $500 per day for certain violations, should be imported into the statute controlling notices. Accordingly, because there was no abuse of discretion, we are unpersuaded to disturb the order in this respect.
IV.
The respondent contends that the ALJ erred in concluding that the issue of the claimant's permanent partial disability benefits was ripe for adjudication. Specifically, the respondent argues that liability had been denied and, additionally, there was a dispute regarding whether Dr. Nadler was authorized. However, we are unpersuaded that the ALJ committed reversible error in adjudicating the issue of permanent disability.
In Trujillo v. United Medical Group, W.C. No. 4-537-815 (March 12, 2004) we concluded that the respondents were not entitled to an automatic suspension of the DIME procedures pending the resolution of the compensability of the claim. In Trujillo we stated:
Had the General Assembly intended to provide an extension of time for requesting a DIME where compensability is denied, the General Assembly could have enacted language to that effect. However, the legislature did not create such an exception and we may not read non-existent provisions into the statute. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
To the contrary, § 8-42-107.2(2)(c), allows the insurer to request a DIME even where compensability is denied. The statute provides that:
"If the insurer or self-insured employer requests an IME and the examination is conducted before the insurer or self-insured employer admits liability pursuant to section 8-43-203(2)(b), the claimant may not request a second independent medical examination on that issue but may appeal the IME's decision as set forth in section 8-43-203(2)(b)(II)."
Accordingly, the General Assembly determined that resolution of the compensability issue is not a prerequisite to requesting and completing a DIME. This is consistent with the legislative purpose § 8-42-107.2 to resolve issues of permanent medical impairment without delay.
We are unpersuaded to depart from our reasoning or from the result in Trujillo, and in our view that order is dispositive of the issue raised by the respondent here. In this regard, we do not understand the respondent to be arguing that it availed itself of any prehearing procedures to obtain relief in the nature of holding the DIME process in abeyance. Under these circumstances, we cannot state that the ALJ abused her discretion in hearing and adjudicating the issue of permanent disability benefits.
V.
The respondent also argues that even if the issue of permanency was ripe, the ALJ nonetheless erred in awarding permanent partial disability benefits based upon the authorized treating physician's whole person impairment ratings, without combining them.
We perceive no error in the ALJ's order. The law applicable to this issue is well-established. Section 8-42-107(1), C.R.S. 2008 provides that the claimant is limited to an award of permanent partial disability benefits based on an extremity rating if the claimant's injury is described in the schedule set forth in 38-42-107(2). See Strauch v. PSL Swedish Health Care System, 917 P.2d 366 (Colo.App. 1996). Conversely, if the claimant has sustained an injury not enumerated on the schedule, the claimant is entitled to benefits based upon a whole person impairment rating under 38-42-107(8), C.R.S. 2008. Mountain City Meat v. Oqueda, 919 P.2d 246 (Colo. 1996). For purposes of 38-42-107(1), the term "injury" does not refer to the site of the injury or to the site of any ensuing surgery or treatment. Rather, the term refers to the part of the body that has been functionally impaired or disabled as a result of the injury. Strauch v. PSL Swedish Health Care System, supra. Moreover, there is no requirement that functional impairment for these purposes take any particular form. Accordingly, pain and discomfort which interferes with the claimant's ability to use a portion of the body may be considered "impairment" for purposes of assigning a whole person impairment rating. Under § 8-42-107(2)(a), the partial "loss of an arm at the shoulder" is a scheduled disability. Depending upon the facts of a particular claim, damage to the "shoulder" may or may not reflect functional impairment enumerated on the schedule of benefits. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo.App. 1997). Here, the ALJ correctly recognized that the disputed issue to be resolved was whether the claimant sustained functional impairment not enumerated on the schedule of benefits.
The question of whether the claimant suffered functional impairment that is fully compensated as a partial "loss of an arm at the shoulder" within the meaning of § 8-42-107(2)(a), is one of fact for determination by the ALJ. Langton v. Rocky Mountain Healthcare Corp., 937 P.2d 883 (Colo.App. 1996). Accordingly the ALJ's determination in this regard must be upheld if supported by substantial evidence in the record and plausible inferences from the record. Section 8-43-301(8), C.R.S. 2008.
Here, there is ample support for the ALJ's findings that the situs of the claimant's functional impairment was not included in the schedule. The ALJ relied upon Dr. Nadler's opinion that the claimant's shoulder injury affected the musculature of his lateral cervical spine and "posterior shoulder," which in turn caused pain in the claimant's cervical spine. This medical opinion is sufficient to support the ALJ's findings that, in turn, support her conclusion that the claimant's injury should be compensated based upon the whole person impairment rating.
The respondent also argues on appeal that the AMA Guides to the Evaluation of Permanent Impairment require that the two separate whole person impairment ratings be "combined" using the procedures set forth in the AMA Guides. The respondent argues that the ALJ's failure to follow this procedure requires that we either modify the order or remand for compliance with the AMA Guides. However, our review of the record does not indicate that this argument was presented to the ALJ for her consideration. Issues not raised before the ALJ may not be considered for the first time on appeal. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994). Moreover, we have been unable to locate the relevant portions of the AMA Guides in the record. Our review is limited to the record before the ALJ. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995). For these reasons, we decline to consider the respondent's argument that the ALJ erred by not combining the whole person ratings pursuant to the AMA Guides.
VI.
Finally, the respondent argues that the ALJ erred in concluding that the Mile High Medical Group was authorized to treat the claimant's compensable injuries.
The ALJ found that because the respondent did not designate a provider to treat the claimant in the first instance, the right of selection passed to the claimant. It is apparently undisputed that the claimant sought treatment at Colorado Accident and Trauma, and that his "file" and his treatment was subsequently transferred to the Mile Hi Medical Group. The respondent argues that there is no evidence of any referral within the meaning of the Workers' Compensation Act, and that therefore the latter medical group is not authorized to provide care. We disagree that the ALJ erred in this respect.
The law in this area is well-established. The respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). "Authorization" refers to the physician's legal status to treat the injury at the respondents' expense. Popke v. Industrial Claim Appeals Office, 797 P.2d 677 (Colo.App. 1997). Under § 8-43-404(5)(a), C.R.S. 2008 the employer or insurer is afforded the right in the first instance to select a physician to treat the injury. Clark v. Avalanche Industries Inc., W. C. No. 4-471-863 (March 12, 2004). An employer is liable for medical expenses when, as part of the normal progression of authorized treatment, an authorized treating physician refers the claimant to other providers for additional services. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). A referral may be made either orally or in writing, and the question of whether a referral was made is one of fact for determination by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). A referral is not invalid simply because it is "general" rather than "specific" in nature. Eckard v. Weatherford International, Inc., W.C. No. 3-796-220 (August 29, 1988).
However, in order to assert the statutory right to designate a provider in the first instance, the employer has an obligation to name the treating physician forthwith upon receiving notice of the compensable injury. Rogers v. Industrial Claim Appeals Office, 746 P.2d 545 (Colo.App. 1987). If the claimant obtains unauthorized medical treatment, the respondent is not required to pay for it. Section 8-43-404(7), C.R.S. 2008; Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999); Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973). However, the employer's failure to designate the authorized treating physician results in the right of selection passing to the claimant. Id. The employer's duty is triggered once the employer or insurer has some knowledge of facts that would lead a reasonably conscientious manager to believe the case may involve a claim for compensation. Bunch v. Industrial Claim Appeals Office of State of Colorado, 148 P.3d 381 (Colo.App. 2006); Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984).
A physician's status as "authorized" and, relatedly, whether particular treatment was provided by an authorized physician are generally questions of fact for resolution by the ALJ. See Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). Accordingly, as with all factual questions, we must uphold the ALJ's findings concerning these questions if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2008. Insofar as the evidence is in conflict or subject to contrary inferences, it is the ALJ's sole responsibility to weigh the evidence and resolve those conflicts, and we must defer to the ALJ's determinations. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
Here, in our view, the ALJ could reasonably infer from the factual record that the treatment provided by the Mile Hi Medical Group was pursuant to a referral from his previous providers. Thus, the claimant testified that he began treating with that group in about February 2007, and that he had never "heard" of that provider previously. Tr. at 59-60. He further stated that his file was "transferred]" to the Mile Hi Medical Group, and that that was the reason he began obtaining treatment there. Tr. at 60. He was not familiar with the provider prior to obtaining treatment for his compensable injuries and, he did not request a referral or otherwise act to have his treatment transferred to it. Tr. at 60. In our view this factual record supports the ALJ's inference that the claimant's treatment was transferred by virtue of a referral from the previous provider. In this respect, we note that it is apparently undisputed that the claimant's care was "transferred" from Colorado Accident and Trauma. Although the factual record does not compel the inference that a referral occurred, it is certainly reasonable for the ALJ to have inferred that that was the case. Accordingly, we perceive no error in this respect.
IT IS THEREFORE ORDERED that the ALJ=s order dated October 2, 2008, is affirmed.
IT IS FURTHER ORDERED that ALJ Krumreich's order dated May 15, 2008, granting the respondent's motion for summary judgment is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
KETEMA ALIGAZE, AURORA, CO, (Claimant).
COLORADO CAB CO/VEOLIO TRANSPORTATION, INC., Attn: CHRISTINE DOERR, DENVER, CO, (Employer).
ERICA WEST, Attn: ERICA WEST, ESQ., C/O: ATTORNEY AT LAW, DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: LYNDA S NEWBOLD, ESQ., DENVER, CO, (For Respondents).
GALLAGHER BASSETT SERVICES, INC., Attn: ANGELA FAISON, ENGLEWOOD, CO, (Other Party).