Opinion
W.C. No. 4-578-567.
May 14, 2004
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) requiring it to pay medical benefits. The respondent contends it is not liable for the disputed treatment because it was unauthorized in light of the provisions of a collective bargaining agreement (CBA). We affirm.
The claimant was employed as an airline pilot instructor. He resides in Colorado and is primarily employed in Colorado. The claimant injured his back in an admitted accident on April 16, 2003. The injury occurred in Denver, Colorado.
The claimant is a union member, and his union entered into a CBA with the respondent. Although the CBA itself was not put into evidence, the claimant testified, and the ALJ found, that the agreement designated Illinois "as the initial forum for work injuries."
On April 17, 2003, the claimant reported his injury to the respondent at its Denver office. The claimant requested that he be allowed to treat with Dr. Wright, D.C., whom he had seen for a prior injury, and the respondent agreed. In May, Dr. Wright referred the claimant to a physiatrist, Dr. Hall. The claimant contacted the insurance adjuster who authorized treatment by Dr. Hall.
Prior to May 16, 2003, the claimant received temporary disability benefits under the workers' compensation law of Illinois. On May 16 the claimant filed a claim in Colorado. In June the respondent admitted the Colorado claim and referred the claimant to Dr. Baer for treatment. The respondent refused to pay for treatment rendered by Dr. Hall, reasoning such treatment was not authorized under Colorado law, and the respondent was entitled to exercise its right of first selection after jurisdiction was "changed" to Colorado. (Tr. P. 8).
However, the ALJ rejected the respondent's theory. The ALJ ruled that jurisdiction of the claim vested in Colorado because the claimant's residence, primary work site, and place of injury all are in Colorado. Further, the ALJ concluded that Dr. Wright was authorized under the law of Colorado, as was his referral to Dr. Hall, and the terms of the CBA "are not controlling" on the issue of authorization. Thus, the ALJ ordered the respondent to pay for the treatment provided by Dr. Hall.
The respondent contends the "forum selection clause" of the CBA is enforceable and that the parties selected Illinois as the initial forum for the claim. Further, according to the respondent, the law of Illinois permits the claimant to select the treating physician. However, the respondent argues, once the claimant filed the Colorado claim "Colorado law applied" and the respondent was entitled to exercise the right of first selection. We are not persuaded.
The ALJ correctly ruled that Colorado had jurisdiction of the claim by virtue of the facts that the claimant works in Colorado and was injured in Colorado. Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989). Because Colorado has jurisdiction, it is entitled to apply its own law to the claim, regardless of the law of other state which might also be entitled to assert jurisdiction over the claimant's injury. See Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996) (purpose of extraterritorial jurisdiction statute is to protect welfare of Colorado citizens temporarily working out of state); Tatlock v. Resort Sports Network, W.C. No. 4-214-040 (June 5, 1996); 9 Larson's Workers' Compensation Law, ch. 142.
Under the law of Colorado, the employer has the right, in the first instance, to select the treating physician. Section 8-43-404(5)(a), C.R.S. 2003. If the employer does not designate a physician forthwith upon notice of the injury, the right of selection passes to the claimant. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987). Further, if an authorized physician makes a referral to another provider in the normal progression of authorized treatment, that provider also becomes authorized. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
Here, the respondent does not dispute that Dr. Hall is authorized under Colorado law if that law applies from the outset of the injury. This is true because the claimant reported the injury to the employer on April 16 and the employer agreed to Dr. Wright as an authorized provider. Dr. Wright referred the claimant to Dr. Hall in the normal progression of treatment.
The respondent's argument notwithstanding, we agree with the ALJ that the CBA has no effect on the application of Colorado law. The CBA did not, and could not prohibit the Colorado workers' compensation system from exercising subject matter jurisdiction over the claim. Sanchez v. Straight Creek Constructors, 41 Colo. App. 19, 580 P.2d 827 (1978) (subject matter jurisdiction refers to the power of a court to decide a case, and it exists or does not). Indeed, subject matter jurisdiction cannot be waived, estopped, or conferred by agreement of the parties. See Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984); Johnson v. United Airlines, Inc., W.C. No. 3-965-034 (February 13, 1992). Thus, although the parties may have privately agreed that the initial "forum" for the claim would be Illinois, that agreement had no effect on the power of Colorado to adjudicate the claim in accordance with its own workers' compensation laws.
Under Colorado law, the respondent's duty to appoint a treating physician arose on notice of the injury, regardless of the date a formal claim for benefits was filed. Rogers v. Industrial Claim Appeals Office, supra. Further, the obligation to provide medical treatment arose at the time of the injury. Section 8-42-101(1)(a), C.R.S. 2003.
The claimant could not assign, release, or commute the right to receive medical benefits under the Act except as expressly provided therein. Section 8-42-124(1), C.R.S. 2003. The respondent points to no provision of the Act under which a CBA may exempt an employer from providing workers' compensation benefits in accordance with the Colorado Act, or delay the applicability of the Colorado Act. Similarly, a claimant may not settle or release the right to receive benefits unless the claimant enters into a written settlement agreement approved by an ALJ or the Director of the Division of Workers' Compensation. Section 8-43-204(1)-(3), C.R.S. 2003; Cook v. McLister, 820 P.2d 1167 (Colo.App. 1991); Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989). The respondent does not assert that the CBA was ever approved by an ALJ or the Director.
For these reasons, we reject the respondent's assertion that the CBA prevented or delayed the application of the provisions of the Colorado Act to this Colorado injury. This conclusion is in no way inconsistent with the decision in Garrard v. United Airlines, W.C. No. 4-475-678 (March 25, 2002). In Garrard, we merely concluded that under the provisions of the Colorado Act temporary total disability (TTD) benefits paid under the law of another state may be offset against liability for TTD benefits under the Colorado Act. Section 8-42-103(1)(e), C.R.S. 2003. Further, TTD benefits paid under the law of another state count against the benefit cap contained in § 8-42-107.5, C.R.S. 2003. This is true because the Colorado Act contemplates that employers doing business in Colorado should receive a savings in workers' compensation costs. Thus, Garrard was based on the application of Colorado law, not an attempt to avoid the application of Colorado law as is the case here.
IT IS THEREFORE ORDERED that the ALJ's order dated November 25, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
David Cain
Kathy E. Dean
Samuel Mark Rutledge, Monument, CO, United Airlines, DIA, Denver, CO, Kasey Troutman, Gallagher Bassett Services, Inc., Englewood, CO, Cullen A. Wheelock, Esq., Colorado Springs, CO, (For Claimant).
Derek T. Frickey, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondent).