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Andrade v. Industrial Claim Appeals Office of the State of Colorado8/11/2005
ORDER AFFIRMED
Rothenberg and Webb, JJ., concur
OPINION PREVIOUSLY ANNOUNCED AS "NOT PUBLISHED PURSUANT TO C.A.R. 35(f)" ON JUNE 30, 2005, IS NOW SELECTED FOR PUBLICATION
In this workers' compensation proceeding, Albert Andrade (claimant) seeks review of the final order of the Industrial Claim Appeals Office (Panel) upholding the denial of his claim for permanent medical impairment benefits. We affirm.
In June 2000, claimant sustained an industrial injury to his back. Triple R Structures and its insurer, Pinnacol Assurance (collectively, employer), referred claimant to Corporate Health and Medical Programs, Inc. (CHAMPS), an occupational medical clinic, for treatment. In November 2000, the CHAMPS physician providing claimant's primary care placed him at maximum medical improvement (MMI) with no permanent impairment.
In September 2001, claimant underwent a division-sponsored independent medical examination (DIME). The DIME physician agreed with the finding of MMI, but opined that claimant had suffered permanent impairment of his low back and his left shoulder as a result of the industrial injury. The DIME physician assigned a whole-person impairment rating of twenty-two percent.
Following an evidentiary hearing, the administrative law judge (ALJ) determined that employer had presented clear and convincing evidence sufficient to overcome the DIME. Based on her assessment of the witnesses' credibility, and taking into account the DIME physician's modification of his initial report after viewing a surveillance videotape of claimant, the ALJ found that claimant's left shoulder injury was not caused by the industrial injury and that he had suffered no permanent impairment as a result of the industrial injury. Accordingly, the ALJ denied the claim for permanent disability benefits. The Panel affirmed.
I.
Claimant first contends that employer's initial referral for treatment was invalid because it designated a corporate provider, CHAMPS, rather than a specific physician. Thus, claimant argues, the treating physician's determination of MMI was insufficient to trigger the DIME provisions of § 8-42-107(8), C.R.S. 2004, and the hearing on permanent disability was premature. We disagree.
Section 8-43-404(5)(a), C.R.S. 2004, states, as relevant here:
In all cases of injury, the employer or insurer has the right in the first instance to select the physician who attends 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 a physician or chiropractor.
The statute gives employers or insurers the right to choose treating physicians in the first instance in order to protect their interest in being apprised of the course of treatment for which they could ultimately be held liable. See Vanadium Corp. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Yeck v. Indus. Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999). That initial right of selection passes to the employee only if medical services are not timely tendered by the employer or insurer. Vanadium Corp. v. Sargent, supra; Lutz v. Indus. Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000).
Here, it is undisputed that claimant timely received medical care from a physician at CHAMPS. Claimant does not allege that that physician was unlicensed or was otherwise not a "physician" as defined in the Workers' Compensation Rules of Procedure. See Dep't. of Labor & Employment Rule XVI(E)(1)(a)(1), 7 Code Colo. Regs. 1101-3. He nevertheless contends that § 8-43-404(5)(a) precludes an employer from designating anyone other than a specific ind
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