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Employers Beware! Right to Select Doctor Can Pass to Claimant for Physician's Refusal to Treat for "Non-Medical Reasons."

Garcia v. McDonalds Corp. W.C. 9-862-853-01 (ICAO, January 2, 20140.

Colorado appeals courts have long held that the right to choose a doctor can pass to the claimant if the treating physician refuses to provide treatment for "non-medical reasons." However what defines a reason as non-medical has been somewhat unclear. Certainly, if a doctor isn't getting paid and therefore refuses to provide treatment, this would be a non-medical reason. But a diagnosis of a non-work related injury could be argued as a medical reason for not treating. However, in Garcia v. McDonalds, the ICAO determined that a doctor's refusal to treat because of a determination of causation is a non-medical reason and the right can to choose a doctor can then pass to the claimant if a new doctor is not promptly provided by the carrier.

The claimant was injured on August 7, 2011 while working for McDonalds when a large metal panel from a soft drink dispenser became loose and fell, striking her on the head. The claimant symptoms included headaches, dizziness, neck pain and blurry vision. A CT scan showed a left-sided diffuse disc bulge with nerve impingement at C4-5 and C5-6. However, the claimant had a previous neck injury and underwent a fusion surgery in 1992. Also, the claimant was involved in a car accident in June, 2011 and had an MRI of her cervical spine on July 1, 2011, a little more than a month prior to the accident at McDonalds. This showed disc problems in the same area of the neck with protrusions into the nerves.

The employer sent the claimant to Dr. Laura Caton after a prior designated clinic informed the claimant that they had no agreement to treat from the employer. Dr. Caton ordered a repeat MRI and concluded that there was no progression of the disk herniation since the MRI taken the month prior to the on-the-job incident. She concluded that there was no new injury and that she would not treat disc injury as it was not work-related. She recommended that the claimant she her own doctor for this treatment which would probably include surgery.

The claimant went to her own physician, Dr. Jeffrey Johnson who referred the claimant to Dr. Hans Coester. Dr. Coester performed a decompression and fusion surgery at C5-6 and C4-5. Respondents argued that it was not liable for the surgery as it was non-work related and not performed by an authorized treating physician. Dr. Jack Rook testified as an expert for the claimant and stated that the neck injury occurred or was aggravated by the McDonalds incident. The ALJ relied on this testimony and ruled that it the injury was work related. She also ruled that Dr. Coester was an authorized treating physician.

The ICAO stated that the ALJ's order was somewhat ambiguous but it inferred from the language of the order that Dr. Caton refused to treat the claimant for a non-medical reason, that being that she didn't have authority to treat an injury that didn't occur from the incident at McDonalds. She then recommended the claimant see her own doctor which she did. That doctor referred her to Dr. Coester who performed the surgery.

The employer has the right to designate a treating physician once it is notified of an injury. If the designated physician refused to provide treatment for non-medical, the respondents must appoint a new physician "forthwith." Lutz v. Industrial Claims Appeals Office, 746 P.2d 565 (Colo. App. 1987). In this case, the determination that the disk injury was not work related was the reason Dr. Caton gave for not treating. Dr. Caton then did a referral by sending the claimant to her own doctor for treatment. This chain of referral continued to Dr. Coester who performed the surgery. When the ALJ determined it was work related, the respondents became liable for the injury and the surgery.

This case creates a dilemma for respondents in that it may require them to refer to and pay a doctor who will treat the claimant even when they believe there is no work-related injury. Dr. Caton refused to treat for this reason. The employer didn't send the claimant to another doctor for treatment because they didn't believe it was work related. Therefore the right to choose the doctor passed to the claimant, although it could also be reasoned that Dr. Caton made the referral to the claimant's personal physician. Per this decision, in order to retain the right to designate a treating doctor, the respondents must provide and pay for treatment even when the designated doctor says the injury didn't happen on the job. If they fail to do that, the claimant can get her own doctor and, if the injury is found to be compensable, the respondents will be liable for that treatment. Perhaps worse, the claimant will gain the right to choose her own physician. The right to choose the treater is zealously asserted by employers and insurance companies. Losing that right because they refuse to pay for treatment of what they see as non-compensable injury puts the respondents in a difficult position. They can either pay for treatment of an injury for which they don't see themselves as liable, or not pay for treatment and lose the right to designate the physician, which could be costly if the injury is eventually ruled to be compensable.

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