Opinion
W.C. No. 4-565-576.
February 15, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated October 15, 2007, that denied claimant's claim for a penalty against the employer. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant suffered an admitted industrial injury on September 9, 2002. Dr. Sandell was the primary authorized treating physician for the claimant's injury. Dr. Sandell referred the claimant to Dr. Kaplan for psychological treatment. The claimant's attorney informed Dr. Sandell that Dr. Kaplan would not treat patients who were his clients. Dr. Sandell referred the claimant to Dr. Allred and Dr. Sandell's office representative, "Gina," called the adjuster to request authorization for Dr. Allred. The adjuster asked Gina if there was any reason why Dr. Sandell had chosen Dr. Allred and asked if the psychological treatment could be done by Dr. Mann. Gina subsequently called the adjuster back and indicated that the treatment could be by Dr. Mann The claimant received treatment by Dr. Mann and Dr. Sandell noted that the psychological treatment was helping the claimant.
The claimant sought penalties pursuant to § 8-43-304(1), C.R.S. 2007, due to the employer's alleged violation of § 8-43-503(3), C.R.S. 2007 (employers shall not dictate to any physician the type or duration of treatment or degree of physical impairment). The ALJ determined that the claimant failed to prove by a preponderance of the evidence that the employer violated § 8-43-503(3) because the employer did not issue an order or command concerning the type or duration of treatment. The ALJ denied and dismissed the claim for a penalty against the employer.
On appeal, the claimant contends that the ALJ's finding that the respondent denied care and treatment by Dr. Allred, but did not relay the denial to Dr. Sandell's office is unsupported by the evidence and therefore the ALJ abused his discretion. We disagree.
The claimant had the burden of proof to establish the right to the penalty. Section 8-43-201 C.R.S. 2007; Long v. DBF, LLC, W. C. No. 4-264-006 (June 5, 1997). Whether the claimant sustained his burden of proof is a question of fact for resolution by the ALJ. We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Coven v. Industrial Commission, 694 P.2d 366 (Colo.App. 1984); Seawell v. Foto Fast, Inc,. W. C. No. 4-304-561 (December 11, 1997).
Section 8-43-503(3) states that no representative of the employer or insurer shall "dictate to any physician the type or duration of treatment" to be provided. As noted by the ALJ, the panel has concluded that § 8-43-503(3) precludes a representative of the insurer from issuing commands to a treating physician concerning the type or duration of treatment to be provided to the claimant. York v. Larchwood Inns, W.C. No. 4-365-429 (November 7, 2002).
Here, the ALJ noted that the employer's attorney in a March 22, 2007 letter to claimant's counsel stated that Dr. Sandell's referral to Dr. Allred was "denied." However, the ALJ also found that the record evidence in fact demonstrated that the adjuster did not inform Gina that the referral to Dr. Allred was denied. Instead the ALJ, noting that no one had called Gina or Dr. Sandell as witnesses, found that the adjuster merely asked Gina if Dr. Sandell would refer the claimant to Dr. Mann instead of Dr. Allred. Findings of Fact, Conclusions of Law, and Order at 3, ¶ 11.
The ALJ further found that the adjuster did not issue an order or command concerning the type or duration of treatment. The ALJ noted that if the adjuster had, in fact, informed Dr. Sandell or Gina that the referral to Dr. Allred had been "denied," that statement might form the basis for finding that the employer had issued an order or command to Dr. Sandell concerning the type of treatment for the claimant. However, the ALJ concluded that the record evidence had failed to demonstrate that the adjuster made that statement to Gina. Findings of Fact, Conclusions of Law, and Order at 3, ¶ 12.
The claimant has detailed considerable evidence in the record, particularly testimony from the claims adjuster that indicates she "denied" the referral to Dr. Allred. Tr. at 19, 28, 30, 39. In addition, the letter from counsel for the employer to counsel for the claimant does state that the referral to Dr. Allred was "denied." Exhibit S.
However, on the issue of what statements were actually made to Dr. Sandell's office concerning the referral to Dr. Allred, the finding of the ALJ finding is, in our opinion, supported in the record by substantial evidence. The following is a summary taken from the claims adjuster's testimony. Tr. at 104-05. The claims adjuster talked to Gina at Dr. Sandell's office regarding the referral to Dr. Allred. The claims adjuster asked why Dr. Sandell had picked Dr. Allred and Gina said Dr. Sandell didn't care, he just wanted the claimant to get treatment. The claims adjuster then suggested Dr. Mann and the referral was made to Dr. Mann.
The issue is whether the evidence, when viewed in the light most favorable to the prevailing party, is sufficient to support the ALJ's pertinent findings. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951). In this regard, we must defer to the ALJ's credibility determinations, and the plausible inferences he drew from the record. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, as noted above the evidence is subject to conflicting inferences. However, the ALJ was not persuaded that the claims adjuster stated to Gina that the referral to Dr. Allred had been "denied." Therefore, the ALJ found that the employer did not issue an order or command concerning the type or duration of treatment. Admittedly, the evidence could have been interpreted differently, however, the ALJ's inferences are a plausible interpretation of the record. Furthermore, we cannot substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Therefore, we decline the claimant's invitation to do so.
IT IS THEREFORE ORDERED that the ALJ's order issued October 15, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________
John D. Baird
_______________________
Thomas Schrant
DAVID G WILLIAMS, COLORADO SPRINGS, CO, (Claimant).
CITY OF COLORADO SPRINGS/UTILIITES, Attn: LORI STEWART, COLORADO SPRINGS, CO, (Employer).
STEVEN U. MULLENS, PC, Attn: STEVEN U MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RITSEMA LYON, Attn: JOSEPH IRWIN, ESQ., COLORADO SPRINGS, CO, (For Respondents).