Opinion
Sept. 9, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 626
Margaret Bates Ellison, Richard T. Goold, Denver, for Ilona Turchanyi.
Zarlengo, Mott & Carlin, Albert E. Zarlengo, Jr., Denver, for petitioners.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for The Industrial Comm. of Colorado.
PIERCE, Judge.
Appellants were respondents and appellee, Turchanyi, was claimant below in a workmen's compensation action from which a final order obtained from the appellee Commission. The parties will be referred to by name or by their designation below.
The record shows that claimant was employed by respondent Russell Stover as the operator of certain candy packaging machinery. While so employed on December 10, 1966, she experienced sharp pain in her upper back, which she attributed to a twisting motion necessitated by the nature of her work. She informed her immediate supervisor of this pain and that she was going to see a physician about it; but she did not inform the supervisor of its cause. She left work and consulted a physician, Dr. Kalley, who diagnosed the pain as caused by arthritis, aggravated by her body movements, and treated her accordingly. After three days, claimant returned to work, still experiencing the pain. She continued working until April, 1967 when she left work for a four-month period, again consulting with various physicians concerning the pain. Their several diagnoses were that the pain was radicular, resulting either from arthritis in her back, possible kidney ailment, ulcers, or gynecological problems, for all of which she underwent treatment. The pain, nevertheless, persisted.
A reading of the total record in this case shows that the reason for these diagnoses, partially correct, but incorrect as being the cause of claimant's back pain, was very probably a communications problem between claimant and her doctors. She is a Hungarian immigrant to this country, and the record makes it clear that she has extreme difficulty in communicating in English.
In September of 1967, claimant returned to work for Russell Stover, remaining employed by them until discharged on April 2, 1968. During this time she continued to experience the pain. Following her discharge, she continued to consult with various physicians which proved fruitless. The pain still persisted.
In January of 1969, claimant, on family advice, consulted with physicians at the University of California Medical Center, and was found to have a spinal injury. Appropriate treatment was commenced, and continued by physicians at the University of Colorado Medical Center upon her return from California, without any notification to her ex-employer, its insurance carrier, or the Industrial Commission.
On June 9, 1969, claimant filed a claim for compensation for accidental injuries with the Commission. She asserted her back injury occurred in the course of her employment with Russell Stover, and was caused by the twisting motion necessitated by operation of machinery to which she was assigned. Hearing was held before a referee who ruled the claim timely filed and awarded claimant $49 per week for temporary partial disability until further order, retroactive to April 2, 1968. He also ordered respondents to pay all medical expenses in connection with claimant's back injury. The referee's decision was affirmed by the Commission on review, and the Commission's final order to this effect, from which respondents now appeal, was issued on April 8, 1970. The issue of permanent partial disability is not before us since a later hearing will be held to determine whether or not such a condition exists and the date of its inception.
We will treat claimant's contention that this case is not properly before this Court, and several of respondents' contentions, summarily, as follows:
1. A careful review of the record indicates that respondents followed proper procedures to obtain review, claimant's assertion to the contrary notwithstanding.
2. Claimant's claim was not barred by C.R.S.1963, 81--13--5, as not timely filed, since the instant fact situation falls squarely within the rule announced in City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194. Under the facts in this case, the Commission was correct in concluding that claimant, as a reasonably prudent person, would not have become aware of the compensable nature of her injury until February, 1969. This conclusion is particularly justified in light of the diagnoses by several doctors that other ailments were causing her back pain, and the difficulties which arose as a result of her language barrier.
3. Respondents' contentions concerning certain medical reports considered by the Commission in arriving at its determinations are without merit since they were on notice of these reports and by letter dated September 15, 1969, waived their statutory rights under C.R.S.1963, 81--14--3 in regard to these reports.
4. Claimant offered sufficient proof to establish that she sustained an injury from an accident, out of and in the course of her employment, within the definitions and criteria established in Wesco Electric Co. v. Shook, 143 Colo. 382, 353 P.2d 743.
5. The Commission's findings of fact contested by respondents, save one which will be discussed below, are supported by the evidence and will not be disturbed.
One erroneous finding by the Commission, however, and its failure to apply the provisions of C.R.S.1963, 81--12--11(5), require reversal of its award of temporary total disability payments and medical expenses. THE DISABILITY FINDING
C.R.S.1963, 81--12--1 provides, among other things,
'(1) If the accident causes disability, a disability indemnity shall be payable as wages, upon the fifteenth day after the injured employee leaves work as the result of the injury and thereafter regularly but not less frequently than once in each calendar month, unless otherwise ordered by the Commission, subject, to the following limitations: * * *'
Among the limitations is the following:
'(3) If the period of disability lasts longer than three weeks from the day the injured employee leaves work as the result of the injury, disability indemnity shall be recoverable from the day the injured employee leaves work.' 1965 Perm.Supp., C.R.S.1963, 81--12--1.
The amount of the benefit is statutorily provided for (1965 Perm.Supp., C.R.S.1963, 81--12--2), and would have been $49 per week in this case.
In order to receive such benefits, however, the employee must be found to have left work because of an injury-caused disability. The Commission so found, stating that claimant was discharged from her employment on April 2, 1968, because of difficulty in her employment caused by pain from her injury; and that she, therefore, became disabled as of that date. She was awarded $49 per week in temporary total disability payments.
We find no evidence whatsoever in the record justifying such a finding. To the contrary, the only evidence touching upon the matter of claimant's discharge was the unrebutted documentary evidence in the record that claimant was fired for her inability, even after 'counseling,' to cooperate with her fellow employees and to follow established company rules. Under these circumstances, the finding is erroneous and must be set aside, as well as the temporary total disability award predicated upon it. Industrial Commission of Colorado et al. v. Elkas, 73 Colo. 475, 216 P. 521.
UNAUTHORIZED MEDICAL EXPENSES
In the record, respondents concede that they are liable for treatment rendered by Dr. Kalley; but they assert that they cannot be required to pay other medical expenses incurred by claimant in connection with her spinal injury, because, uncontrovertedly, all such expenses resulted from treatment of claimant by physicians of her own choice, without notice to respondents and without opportunity for respondents to have physicians of their choice treat claimant. We agree.
C.R.S.1963, 81--12--11(5) provides:
'In all cases of injury, the employer or insurer, shall have the right in the first instance to select the physician who shall attend said injured employee. If the services of a physician are not tendered at the time of injury the employee shall have the right to select his own physician and upon the proper showing to the commissioner may procure its permission at any time to have a physician of his own selection attend him * * *'
This statute, and its predecessors, has been interpreted by our Supreme Court as meaning that if a claimant avails himself of the services of his own physician without notice to the employer and without consent of the Industrial Commission, the employer is not liable for the medical expenses incurred in connection therewith. Wishbone Restaurant v. Moya, 162 Colo. 30, 424 P.2d 119; Colorado Fuel & Iron Corp. v. Industrial Commission, 129 Colo. 353, 269 P.2d 1070. See also, 2 A. Larson, The Law of Workmen's Compensation, s 61.12 (1970).
For the reasons above, the award of temporary total disability payments and the award of medical expenses, other than those resultant from Dr. Kelley's treatment, is set aside, and the matter is remanded for further proceedings regarding the claim for permanent partial disability.
COYTE and ENOCH, JJ., concur.