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All Authorized Treating Physicians Must Refuse to Treat in Order for the Right of Selection to Pass to the Injured Worker

Under §8-43-404(5)(a), C.R.S., the respondent is afforded the right in the first instance to select a physician to attend the claimant. However, the statute implicitly contemplates that the respondent will designate a physician who is willing to provide treatment. Therefore, if the physician selected by the respondent refuses to treat the claimant for non-medical reasons, and the respondens fails to appoint a new treating physician, the right of selection passes to the claimant, and the physician selected by the claimant is authorized.

However, the Industrial Claim Appeals Office recently found that when a claimant has more than one authorized treating physician (as usually is the case due to referrals to specialists), the claimant must prove that all of the authorized treating physicians have refused to treat the claimant before the right of selection passes to the claimant.  Daniels v. US Airways Group, W. C. No.  4-695-093 (June 5, 2013).  In Daniels, the employer referred claimant to a medical clinic, where she was seen by a nurse practitioner and a physician beginning in June 2006.  Those two providers referred Claimant to several specialists for treatment. In late-2006 the nurse practitioner at the clinic left the authorized treating clinic to join a different medical practice.  The employer later filed a Notice of Contest, and the physician at the clinic refused to treat the claimant because the respondents had denied the claim (a non-medical reason for refusing to treat).  The claimant sought treatment from her personal physician, who later referred the claimant to the original treating nurse practitioner at that nurse practitioner’s new practice.  However, even though the original clinic physician refused to treat for non-medical reasons, the Administrative Law Judge found that claimant failed to prove that the specialists to whom the claimant was referred by the nurse practitioner and the physician in 2006 had refused to treat for non-medical reasons. Therefore, since the claimant did not prove that all of the authorized treating physicians had refused to treat the claimant for non-medical reasons, the Administrative Law Judge found that the right of selection had passed to the claimant.

It is very common for an authorized treating physician to refer a claimant to several different providers and/or specialists during the course of normal treatment. This case stands for the proposition that the right of selection does not pass to the claimant unless all of the authorized treating physicians have refused to treat for non-medical reasons.

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