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Yeck v. Industrial Claim Appeals Office8/19/1999
Review of Order from the Industrial Claim Appeals Office of the State of Colorado
JUDGMENT AFFIRMED
Division III
Ney and Casebolt, JJ., concur
The sole issue in this workers' compensation case is whether an insurer's denial of a claim by notice of contest should, for public policy reasons, constitute a waiver of the right to select the treating physician. We conclude that it does not. Therefore, we affirm the order of the Industrial Claim Appeals Office (Panel) finding that National Baromedical Services (employer) and its insurer, Colorado Compensation Insurance Authority, (collectively CCIA) are not liable for payment of treatment provided to William Yeck (claimant) by two unauthorized physicians.
Claimant sustained a compensable back injury in December 1996. Employer referred him to authorized providers who administered care. In January 1997, he returned to an authorized provider, told the provider he felt "fine," and was placed at maximum medical improvement.
However, claimant testified that he lied to the authorized provider about his condition and actually did not feel symptom free. He did not return to the authorized provider and, instead, discussed his condition with a different physician, who referred him to a surgeon. In July 1997, the surgeon recommended back surgery, which was performed in December 1997.
The Administrative Law Judge (ALJ) determined that, since there was no valid referral from either CCIA or the authorized provider, these two physicians were unauthorized. Furthermore, the ALJ found that claimant was never refused treatment by the authorized provider.
Between the time surgery was recommended and performed, the workers' compensation case was filed and contested. Claimant filed a claim for compensation in August 1997, which was followed by CCIA's tentative notice of contest in November 1997. Although the ALJ found that the claim was compensable, he denied claimant's request for a change of physician and concluded that CCIA was not liable for the unauthorized treatment, including the back surgery. The Panel affirmed.
Claimant contends that once CCIA denied liability for coverage, he should not be required to obtain a referral from an authorized provider. He argues that such a request would have been futile because an authorized provider probably would not have given him a referral once CCIA denied coverage. Furthermore, the amicus curiae argues that, once the claim is denied, the injured worker should not be forced to treat with the "company doctor," because if the claim is ultimately held not compensable, he may have to pay for such treatment out of his own pocket. This is especially true, argues the amicus curiae, when the worker has his own health insurance that would cover the treatment. We perceive no compelling reasons for setting aside the order.
Claimant recognizes that ยง8-43-404(5), C.R.S. 1998, affords the employer or insurer the statutory right, in the first instance, to select a physician to treat the industrial injury, and that the right of first selection does not pass to the claimant unless the employer or insurer fail to provide a physician willing to treat the injury. Section 8-43-404(5)(a), C.R.S. 1998, also provides that the claimant may not change physicians without permission from the employer, insurer, or ALJ. If a claimant obtains unauthorized care, the employer and insurer are not liable to pay for it. Colorado Fuel & Iron Corp. v. Industrial Commission, 129 Colo. 353, 269 P.2d 1070 (1954); Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
However, claimant contends that once his claim wa
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