FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ). The claimant contends the ALJ erred in refusing to impose penalties in connection with the respondent's allegedly wrongful termination of temporary disability benefits. We disagree, and therefore, affirm.
Under § 8-43-304(1), C.R.S. 1998, an ALJ may impose penalties against an insurer who "fails or refuses to perform any duty lawfully enjoined." The failure to comply with a procedural rule has been held to constitute the failure to perform a duty lawfully enjoined. Diversified Veterans Corporate Center v. Hewuse, 942 P.2d 1312 (Colo.App. 1997). Rule IX(C)(1)(a), 7 Code Colo. Reg. 1101-3 at 34 provides that an insurer may unilaterally terminate temporary disability benefits by filing an admission of liability form with a medical report from "an authorized treating physician" stating the claimant has reached MMI.
The claimant suffered a work-related injury on July 29, 1997, and began treating with his personal physician, Dr. Schneider. The respondent admitted liability for temporary disability benefits, and directed the claimant to Dr. Kendall for an examination on August 26, 1997. Dr. Kendall reexamined the claimant on September 30, 1997, and recommended a surgical consultation with Dr. Kurica.
The claimant requested a change of physicians to Dr. Schneider. The respondent did not object. At the respondent's request the claimant was reexamined by Dr. Kendall on February 18, 1998, at which time Dr. Kendall placed the claimant at maximum medical improvement (MMI) with 2 percent whole person impairment. Relying on Rule IX(C)(1)(a) and Dr. Kendall's determination of MMI, the respondent filed a Final Admission of Liability terminating temporary disability benefits effective February 17, 1998. The claimant objected and requested an order imposing penalties.
At the hearing the claimant contended that due to the change of physicians to Dr. Schneider, Dr. Kendall was not an "authorized treating physician" as of February 18, 1998. Therefore, the claimant argued that the respondent wrongfully relied on Dr. Kendall's MMI determination to unilaterally terminate temporary disability benefits.
The ALJ determined that Dr. Kendall was an "authorized treating physician" and that the change of physicians to Dr. Schneider did not "deauthorize" Dr. Kendall's status. (Findings of Fact 5, 6; Conclusions of Law 1). Therefore, the ALJ determined the respondent did not violate Rule IX(C)(1)(a) in relying on Dr. Kendall's MMI determination to terminate temporary disability benefits.
On review the claimant contends the ALJ erred in finding that Dr. Kendall was an authorized treating physician because the respondent did not, in the first instance, designate Dr. Kendall to treat the industrial injury. The claimant also contends that because Dr. Kendall only examined the claimant on two occasions prior to February 1998, he was not a "treating" physician. Further, the claimant contends that Dr. Kurica and Dr. Schneider were the only "authorized treating physicians" after the respondent approved a change of physician to Dr. Schneider. We reject these arguments.
An employer is liable for authorized medical treatment necessitated to cure or relieve the effects of the industrial injury. Sections 8-42-101(1)(a) 8-43-404(5)(a), C.R.S. 1998; Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). An "authorized treating physician" refers to a physician who is legally authorized to treat the injury. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995); Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993). Accordingly, where the employer directs the claimant to a particular physician and agrees to pay for the medical expenses incurred by the claimant with a particular physician, the physician is necessarily an "authorized" physician.
Moreover, even if the respondent does not exercise its statutory right in the first instance to designate a treating physician, the claimant is required to submit to examinations by physicians the respondent selects. Sections 8-43-404(1) (5)(a), C.R.S. 1998. Thus, the claimant may have multiple authorized treating physicians. See Bestway Concrete v. Industrial Claim Appeals Office, ___ P.2d. ___ (Colo.App. No. 1999).
Here, it is undisputed that the claimant was referred to Dr. Kendall by the respondent, and that the respondent paid for all treatment by Dr. Kendall. Under these circumstances, the ALJ reasonably inferred that Dr. Kendall became an "authorized treating physician," and it is immaterial whether the respondent, in first instance designated Dr. Kendall to treat the industrial injury.
We also disagree that Dr. Kendall was "deauthorized" after the respondent approved a change of physician to Dr. Schneider. We have previously concluded that in the absence of evidence of a specific agreement to "deauthorize" a previously "authorized treating physician," the insurer's approval for a change of physician merely adds another physician to the list of physicians who are legally authorized to treat the injury at the insurer's expense. Chapman v. The Spectranetics Corporation, W.C. No. 4-162-568 (May 30, 1997); Matthews v. United Parcel Service, W.C. No. 4-325-652 (December 15, 1997). The claimant's arguments to do not persuade us to depart from our conclusions in Chapman and Matthews.
Further, the record supports the ALJ's finding that there was no agreement to deauthorize Dr. Kendall. The letters dated August 26, 1997 and September 29, 1997, from claimant's counsel to the respondent do not request permission for the claimant to treat solely with Dr. Schneider. Instead, the claimant's counsel requested permission for Dr. Schneider to be the "primary authorized treating physician." We also note that the respondent's adjuster denied any agreement to "deauthorize" Dr. Kendall. (Tr. p. 38). Under these circumstances, we may not disturb the ALJ's determination that Dr. Kendall was an "authorized treating physician" when he determined the claimant to be at MMI. Moreover, the ALJ's findings support the conclusion that the respondent did not violate Rule IX(C)(1)(a) by unilaterally terminating temporary disability benefits based on Dr. Kendall's determination of MMI. Therefore, the ALJ did not err in denying the claim for penalties.
Evidence the claimant did not consider Dr. Kendall to be an authorized treating physician, and that Dr. Kendall did not examine the claimant between September 30, 1997 and February 1998 does not compel a contrary conclusion. The term "authorized treating physician" and the term "attending" physician are used interchangeably. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997). An "attending" physician has been defined as a physician who "takes care"of the claimant. Popke v. Industrial Claim Appeals Office, supra. Regardless, of whether Dr. Kendall provided "active treatment," after September 30, 1997, the record contains evidence that Dr. Kendall was taking care of the injury by recommending the claimant see Dr. Kurica and instructing the claimant to contact him after Dr. Kurica's examination.
The claimant's remaining arguments have been considered and are not persuasive. Moreover, because we uphold the ALJ's finding that Dr. Kendall was an "authorized treating physician" as of February 18, 1998, we need not consider the claimant's arguments concerning the application of § 8-42-107(8)(b)(II), C.R.S. 1998.
IT IS THEREFORE ORDERED that the ALJ's order dated September 17, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed July 20, 1999 the following parties:
Nathaniel Granger, Jr., 5877 Dutchess Drive, Colorado Springs, CO 80909
Ginny Weed, Penrose Hospital, P.O. Box 7021, Colorado Springs, CO 80933-7021
Debra Howie, Alternative Management Services Inc., Employee Injury Management, 1115 Elkton Dr., Ste. 400, Colorado Springs, CO 80907
Steven R. Waldmann, 303 S. Circle Dr., Ste. 203, Colorado Springs, CO 80910-3026 (For Claimant)
Susan F. Reeves, 111 S. Tejon St., Ste. 700, Colorado Springs, CO 80903 (For Respondents)
BY: A. Pendroy