Opinion
W.C. No. 4-491-883.
June 20, 2002.
FINAL ORDER
The claimant seeks review of a Corrected Order of Administrative Law Judge Felter (ALJ) which determined the medical treatment of Dr. Simpson and his referrals was not authorized and, therefore, not a compensable medical benefit. We reverse.
On March 17, 2000, the claimant suffered injuries during a work-related motor vehicle accident. The claimant testified the employer told her she had no workers' compensation claim and should seek PIP benefits against her automobile insurance carrier. (Tr. p. 16).
The claimant selected Dr. Fall to treat the injury. The PIP carrier paid for Dr. Fall's treatment and paid wage replacement benefits. In August 2000, the PIP carrier granted the claimant permission to treat with Dr. Simpson. The respondents concede Dr. Fall refused continued treatment of the injury after the claimant began treating with Dr. Simpson.
In February 2001 the claimant filed a claim for workers' compensation benefits. In May 2001 the respondents requested Dr. Fall to resume treatment of the injury. Dr. Fall refused, at which time the respondents referred the claimant to Dr. Healy for treatment.
The ALJ found that at the "insistence" of the employer, the claimant filed a PIP claim instead of a workers' compensation claim, and the respondents did not tender the services of a physician in 2000. Further, the ALJ determined the PIP carrier freely allowed the claimant to change doctors to Dr. Simpson, and the claimant listed Dr. Simpson as the treating physician on the claim for workers' compensation benefits. However, the ALJ determined that because the claimant never requested the respondents' permission to change physicians, Dr. Simpson and his referrals are not authorized treating physicians. Consequently, the ALJ denied the claimant's request for an order holding the respondents liable medical treatment by Dr. Simpson and his referrals.
On review the claimant contends, inter alia the respondents are estopped from denying liability for the treatment of Dr. Simpson and his referrals. See Sneath v. Express Messenger Service, 931 P.2d 565 (Colo.App. 1996) (estoppel raised in argument even though term "estoppel" not used). We agree.
The respondents are liable for all authorized and emergency treatment reasonably necessary to cure or relieve the effects of the industrial injury. 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, 944 P.2d 677 (Colo.App. 1997).
Section 8-43-404(5)(a), C.R.S. 2001, affords the respondents the right, in the first instance to select the treating physician. Once the respondents have exercised their right to select the treating physician the claimant may not change physicians without permission from the insurer or an ALJ. See Gianetto Oil Co. v. Industrial Claim Appeals Office, 931 P.2d 570 (Colo.App. 1996); Sims v. Industrial Claim Appeals Office, supra. However, the existence of a statutory procedure for the selection of an authorized treating physician does not preclude the application of equitable principles, including waiver and estoppel, where the facts warrant their application. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988). Consistent with this view, our courts have long held that a claimant "may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion." Greager v. Industrial Commission , 701 P.2d 168 (Colo.App. 1985). The court of appeals applied this principle in Brickell v. Business Machines, Inc., 817 P.2d 536, 539 (Colo.App. 1991), holding that the respondents acquiesced in a claimant's "change of physician when, after an initial course of chiropractic treatments, the claimant determined that he required medical care."
Here, it is undisputed the employer did not attempt to designate a treating physician prior to February 2002. To the contrary, in the first instance the employer directed the claimant to file a PIP claim instead of a workers' compensation claim, thereby circumventing the insurer's right to select a treating physician. Furthermore, there is no evidence that prior to May 2002 the respondents directed the claimant to comply with any requirements of the Workers' Compensation Act concerning the receipt of medical treatment. Rather, the employer allowed the claimant to obtain medical treatment through the PIP carrier. Because the PIP carrier allowed the claimant to seek treatment from Dr. Simpson while also treating with Dr. Fall, the respondents' inaction reflects the employer's acquiescence to the change of physicians and the PIP carrier's management of the claimant's medical treatment. Under these circumstances, the employer's actions created authorization for the claimant's treatment with Dr. Simpson. See Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993) (where undisputed facts lead to only one conclusion the issue is a question of law). Furthermore, the respondents were not entitled to recapture the right of selection in 2001 either by directing the claimant undergo an examination with Dr. Fall or referring the claimant to Dr. Healy. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). Consequently, the ALJ erred in finding Dr. Simpson and his referrals are not authorized treating physicians.
Moreover, the ALJ expressly determined that the treatment by all the medical providers was reasonable and necessary to treat the industrial injury. (Finding of Fact 31). Consequently, the ALJ erred in failing to hold the respondents liable for the treatment of Dr. Simpson and his referrals.
However, we reject the claimant's contention the ALJ erred in failing to order the respondents to reimburse the PIP carrier for medical and wage benefits previously paid to the claimant. Section 8-43-215, C.R.S. 2001 directs the ALJ to enter an order determining "by whom and to whom" benefits should be paid. This authority allows an ALJ to resolve disputes between insurers and order a workers' compensation insurer to reimburse a no-fault carrier for benefits which the no-fault carrier paid to the claimant. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
Here, the PIP carrier is not a party to this claim and has not asserted a claim for reimbursement. Furthermore, we conclude the claimant lacks standing to assert a claim for reimbursement on behalf of the PIP carrier.
To have standing as a party, a litigant must have both an injury in fact and a cognizable legal right. Bradley v. Industrial Claim Appeals Office, 841 P.2d 1071 (Colo.App. 1992). In this case, there is no assertion the claimant is responsible for reimbursing the PIP carrier in the absence of an order requiring the respondents' to reimburse the PIP carrier. Under these circumstances, the record compels the conclusion the claimant does not have standing to seek review of the ALJ's order to the extent it does not address the respondents' duty to reimburse the PIP carrier. See Adams v. Neoplan U.S.A. Corp., 881 P.2d 373 (Colo.App. 1993); Bradley v. Industrial Claim Appeals Office, 841 P.2d 1071 (Colo.App. 1992).
IT IS THEREFORE ORDERED that the ALJ's Corrected Order dated October 2, 2001, is reversed insofar as it determined Dr. Simpson and his referrals are not authorized treating physicians and failed to require the respondents to pay for the medical expenses incurred by the claimant with Dr. Simpson and his referrals for treatment of the industrial injury.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ David Cain
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 20, 2002 to the following parties:
Tebbie Kramer, 245 Wooster Ave., Box 115, Firestone, CO 80520
Capital Pacific Homes, 1333 W. 120th, #222, Westminster, CO 80234
Anita Montoya, Indemnity Insurance Company of North America, P. O. Box 2941, Greenwood Village, CO 80150
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Michael W. Sutherland, Esq., 1720 S. Bellaire St., #310, Denver, CO 80222-4043 (For Respondents)
BY: A. Hurtado