Opinion
W.C. No. 4-451-277
May 15, 2001
FINAL ORDER
The respondents have petitioned for review of an order issued by Administrative Law Judge Martinez (ALJ) which determined that the claimant sustained a compensable injury, and ordered the respondents to pay medical and temporary disability benefits. We affirm the order in part, set it aside in part, and remand for further proceedings.
It was undisputed that the claimant was involved in an accident on or about July 22, 1999, in the scope of his employment. The claimant was struck in the head by a sheet of falling plywood as he and other workers were carrying a bathtub. The respondents disputed that the claimant sustained any injuries in the accident. However, the ALJ was persuaded the claimant was injured when the force of the plywood caused him to fall to the ground and land hard on his back. The ALJ found that as a result of the accident, the claimant experiences headaches, pain in his back, jaw, skull, elbows, and neck, as well as pain and numbness in his arms and legs. Although the claimant had suffered previous injuries, the ALJ found that the claimant's symptoms were from the July 1999 injury and not a pre- existing condition.
The ALJ further found that the claimant reported the injury to the employer, but was not referred to a physician. Consequently, the ALJ concluded the claimant was free to select his own physician, and ordered that Drs. Unger and Morris, chosen by the claimant, were authorized.
The ALJ further found that the claimant's symptoms preclude him from performing his regular job duties, and from working as many hours and earning as much pay as he did prior to the industrial injury. Although the claimant continued working for the employer after the injury, he was absent approximately one day per week because of the symptoms caused by the work injury, and was discharged in September 1999 for excessive absenteeism. The ALJ found the absenteeism was caused by the industrial injury, and therefore concluded the claimant was terminated under circumstances which were not his fault. The ALJ further found that the claimant has been forced to quit subsequent jobs because of the physical problems he suffered from the industrial injury, and concluded the claimant is entitled to temporary partial disability benefits from July 22, 1999 and continuing.
The respondents have not filed a brief in support of their appeal, and we perceive no basis for disturbing the ALJ's factual findings, which are supported by substantial evidence. See § 8-43-301(8), C.R.S. 2000. Moreover, the findings support the conclusion that the claimant's injury is compensable, and that he is entitled to temporary disability benefits. Cf. § 8-42-103(1)(g), C.R.S. 2000; § 8-42-105(4), C.R.S. 2000 (in cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the on-the-job injury). As we understand the order, the ALJ determined the claimant was not at fault or "responsible" for his separation from the employer because the absences occurred when the claimant was unable to work or impaired due to physical problems caused by the industrial injury, and the absences were therefore, outside the claimant's control. Cf. Gonzales v. Industrial Commission, 740 P.2d 999 (Colo. 1987) (in determining whether claimant is responsible for separation caused by absenteeism and entitled to unemployment benefits, the volitional nature of the claimant's conduct or ability to avoid the absences must be considered); see also Mountain States Telephone and Telegraph Co. v. Industrial Commission, 637 P.2d 401 (Colo.App. 1981) ; Colorado State Judicial Dept. v. Industrial Commission, 630 P.2d 102 (Colo.App. 1981).
However, the award of medical benefits appears, in part, to be inconsistent with applicable law. The ALJ correctly determined that the right to select the treating physician passed to the claimant when the claimant was not referred to a physician by the employer or insurer. See § 8-43-404(5)(a), C.R.S. 2000. However, once the claimant selects a physician, he may not ordinarily change physicians without permission from the respondents or approval by an administrative law judge. See Wishbone Restaurant v. Moya, 162 Colo. 30, 424 P.2d 119 (1967).
There are exceptions to the general rule, but the ALJ's order does not indicate that an exception is applicable here. To the contrary, the order suggests that the claimant was permitted to select multiple physicians because the respondents failed to appoint a physician in the first instance. Since this rationale is not consistent with applicable law, additional findings are necessary to resolve the respondents' liability for medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order issued November 3, 2000, is set aside insofar as it determines that both Dr. Morris and Dr. Unger are authorized. The case is remanded for further findings determining the authorized physician, or alternatively, findings indicating the basis for the authorization for both physicians.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
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(1) and 307, C.R.S. 1997.
Copies of this order were mailed May 15, 2001 to the following parties:
Matthew Pace, 621 Chipeta Rd. #28, Montrose, CO 81401
Commercial Design Engineering, P.O. Box 2240, Colorado Springs, CO 80901-2440
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave. #100, Englewood, CO 80112
Amy K. Eaton, Esq., P.O. Box 4859, Grand Junction, CO 81504 (For Claimant)
Scott M. Busser, Esq., 300 S. Jackson St. #570, Denver, CO 80209 (For Respondents)
By: A. Pendroy