Colorado § 8-43-404 - Examination - refusal - personal responsibility - physicians to testify and furnish results - injured worker right to select treating physician - injured worker right to third-party communications - rules.

§ 8-43-404. Examination - refusal - personal responsibility - physicians to testify and furnish results - injured worker right to select treating physician - injured worker right to third-party communications - rules.

(1) (a) If in case of injury the right to compensation under articles 40 to 47 of this title exists in favor of an employee, upon the written request of the employee's employer or the insurer carrying such risk, the employee shall from time to time submit to examination by a physician or surgeon or to a vocational evaluation, which shall be provided and paid for by the employer or insurer, and the employee shall likewise submit to examination from time to time by any regular physician selected and paid for by the division.

(b) (I) At least three business days in advance of an examination under paragraph (a) of this subsection (1), if requested by the claimant, the employer or insurer shall pay to the claimant the claimant's estimated expenses of attending the examination, including transportation, mileage, food, and hotel costs. In addition, if the claimant verifies that he or she will incur uncompensated wage losses as a result of attending the examination, the employer or insurer shall reimburse the claimant at the rate of seventy-five dollars per day. Failure to provide payment in accordance with this subparagraph (I) constitutes grounds for the claimant to refuse to attend the examination.

(II) If an employer pays estimated expenses under this paragraph (b) and the claimant does not attend the examination, the employer or insurer may recover the costs paid for the employee's expenses from future indemnity benefits.

(2) (a) The employee shall be entitled to have a physician, provided and paid for by the employee, present at any such examination. If an employee is examined by a chiropractor at the request of the employer, the employee shall be entitled to have a chiropractor provided and paid for by the employee present at any such examination. After any examination conducted under this section, the examiner shall prepare a written report giving a description of the examination performed, the written documents or any other materials reviewed, and all findings or conclusions of the examiner. The employee shall be entitled to receive from the examining physician or chiropractor a copy of any report that the physician or chiropractor makes to the employer, insurer, or division upon the examination, and the copy shall be furnished to the employee at the same time it is furnished to the employer, insurer, or division. The employee shall also be entitled to receive reports from any physician selected by the employer to treat the employee upon the same terms and conditions and at the same time the reports are furnished by the physician to the employer. All such examinations shall be recorded in audio in their entirety and retained by the examining physician until requested by any party. Prior to commencing the audio recording, the examining physician shall disclose to the employee the fact that the exam is being recorded. If requested, an exact copy of the recording shall be provided to the parties. Nothing in this subsection (2) shall be construed to prevent any party to the claim from making an audio recording of the examination. The division shall promulgate rules regarding such recordings that shall include provisions for the protection of the audio recordings and the privacy of information contained in such recordings. The employer shall be entitled to receive reports from any physician or chiropractor selected by the employee to treat or examine the employee in connection with such injury upon the same terms and at the same time the reports are furnished by the physician or chiropractor to the employee.

(b) The amendments made to paragraph (a) of this subsection (2) by Senate Bill 09-168, enacted in 2009, are declared to be procedural and were intended to and shall apply to all workers' compensation claims, regardless of the date the claim was filed.

(3) So long as the employee, after written request by the employer or insurer, refuses to submit to medical examination or vocational evaluation or in any way obstructs the same, all right to collect, or to begin or maintain any proceeding for the collection of, compensation shall be suspended. If the employee refuses to submit to such examination after direction by the director or any agent, referee, or administrative law judge of the division appointed pursuant to section 8-43-208 (1) or in any way obstructs the same, all right to weekly indemnity which accrues and becomes payable during the period of such refusal or obstruction shall be barred. If any employee persists in any unsanitary or injurious practice which tends to imperil or retard recovery or refuses to submit to such medical or surgical treatment or vocational evaluation as is reasonably essential to promote recovery, the director shall have the discretion to reduce or suspend the compensation of any such injured employee.

(4) Any physician or chiropractor who makes or is present at any such examination may be required to testify as to the results thereof. Any physician or chiropractor having attended an employee in a professional capacity may be required to testify before the division when it so directs. A physician or chiropractor will not be required to disclose confidential communications imparted to said physician or chiropractor for the purpose of treatment and which are unnecessary to a proper understanding of the case.

(5) (a) [Editor's note: This version of subsection (5)(a) is effective until January 1, 2028.]

(I) (A) In all cases of injury, the employer or insurer shall provide a list of at least four physicians or four corporate medical providers or at least two physicians and two corporate medical providers or a combination thereof where available, in the first instance, from which list an injured employee may select the physician who attends the injured employee. At least one of the four designated physicians or corporate medical providers offered must be at a distinct location from the other three designated physicians or corporate medical providers without common ownership. If there are not at least two physicians or corporate medical providers at distinct locations without common ownership within thirty miles of the employer's place of business, then an employer may designate physicians or corporate medical providers at the same location or with shared ownership interests. Upon request by an interested party to the workers' compensation claim, a designated provider on the employer's list shall provide a list of ownership interests and employment relationships, if any, to the requesting party within five days of the receipt of the request. 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. For purposes of this section, "corporate medical provider" means a medical organization in business as a sole proprietorship, professional corporation, or partnership.

(B) If there are fewer than four physicians or corporate medical providers within thirty miles of the employer's place of business who are willing to treat an injured employee, the employer or insurer may instead designate one physician or one corporate medical provider, and subparagraphs (III) and (IV) of this paragraph (a) shall not apply. A physician is presumed willing to treat injured workers unless he or she indicates to the employer or insurer to the contrary.

(C) If there are more than three physicians or corporate medical providers, but fewer than nine physicians or corporate medical providers within thirty miles of the employer's place of business who are willing to treat an injured employee, the employer or insurer may instead designate two physicians or two corporate medical providers or any combination thereof. The two designated providers shall be at two distinct locations without common ownership. If there are not two providers at two distinct locations without common ownership within thirty miles of the employer's place of business, then an employer may designate two providers at the same location or with shared ownership interests. Upon request by an interested party to the workers' compensation claim, a designated provider on the employer's list shall provide a list of ownership interests and employment relationships, if any, to the requesting party within five days of the receipt of the request.

(D) Except as otherwise provided by sub-subparagraph (E) of this subparagraph (I), any party may request an expedited hearing on the issue of whether the employer or insurer provided a list in compliance with this subsection (5) if the application for expedited hearing is filed within forty-five days after the claimant provides notice of the injury to the employer.

(E) If the insurer or self-insured employer admits liability for the claim, any party may request an expedited hearing on the issue of whether the employer or insurer provided a list in compliance with this subsection (5) if the application for expedited hearing is filed within forty-five days after the initial admission of liability for the claim. The director shall set any expedited matter for hearing within sixty days after the date of the application. The time schedule for an expedited hearing is subject to the extensions set forth in section 8-43-209. If the party elects not to request an expedited hearing under this subsection (5), the time schedule for hearing the matter is as set forth in section 8-43-209.

(II) (A) If the employer is a health-care provider or a governmental entity that currently has its own occupational health-care provider system, the employer may designate health-care providers from within its own system and is not required to provide an alternative physician or corporate medical provider from outside its own system.

(B) If the employer has its own on-site health-care facility, the employer may designate such on-site health-care facility as the authorized treating physician, but the employer shall comply with subparagraph (III) of this paragraph (a). For purposes of this sub-subparagraph (B), "on-site health-care facility" means an entity that meets all applicable state requirements to provide health-care services on the employer's premises.

(III) An employee may obtain a one-time change in the designated authorized treating physician under this section by providing notice that meets the following requirements:

(A) The notice is provided within ninety days after the date of the injury, but before the injured worker reaches maximum medical improvement;

(B) The notice is in writing and submitted on a form designated by the director. The notice provided in this subparagraph (III) shall also simultaneously serve as a request and authorization to the initially authorized treating physician to release all relevant medical records to the newly authorized treating physician.

(C) The notice is directed to the insurance carrier or to the employer's authorized representative, if self-insured, and to the initially authorized treating physician and is provided to the employer, who shall notify the insurance carrier, if necessary, and the initially authorized treating physician;

(D) The new physician is on the employer's designated list or provides medical services for a designated corporate medical provider on the list;

(E) The transfer of medical care does not pose a threat to the health or safety of the injured employee;

(F) An insurance carrier, or an employer's authorized representative if the employer is self-insured, shall track how often injured employees change their authorized treating physician pursuant to this subparagraph (III) and shall report such information to the division upon request.

(IV) (A) When an injured employee changes his or her designated authorized treating physician, the newly authorized treating physician shall make a reasonable effort to avoid any unnecessary duplication of medical services.

(B) The originally authorized treating physician shall send all medical records in his or her possession pertaining to the injured employee to the newly authorized treating physician within seven calendar days after receiving a request for medical records from the newly authorized treating physician.

(C) The originally authorized treating physician shall continue as the authorized treating physician for the injured employee until the injured employee's initial visit with the newly authorized treating physician, at which time the treatment relationship with the initially authorized treating physician shall terminate.

(D) The opinion of the originally authorized treating physician regarding work restrictions and return to work shall control unless and until such opinion is expressly modified by the newly authorized treating physician.

(E) The newly authorized treating physician shall be presumed to have consented to treat the injured employee unless the newly authorized treating physician expressly refuses in writing within five days after the date of the notice to change authorized treating physicians. If the newly authorized treating physician refuses to treat the injured employee, the employee may return to the employer to request an alternative authorized treating physician. If the employer does not provide an alternative authorized treating physician within five days after the employee's request, rules established by the division shall control.

(V) If the authorized treating physician moves from one facility to another, or from one corporate medical provider to another, an injured employee may continue care with the authorized treating physician, and the original facility or corporate medical provider shall provide the injured employee's medical records to the authorized treating physician within seven days after receipt of a request for medical records from the authorized treating physician.

(VI) (A) In addition to the one-time change of physician allowed in subparagraph (III) of this paragraph (a), upon written request to the insurance carrier or to the employer's authorized representative if self-insured, an injured employee may procure written permission to have a personal physician or chiropractor treat the employee. The written request must be completed on a form that is prescribed by the director. If permission is neither granted nor refused within twenty days after the date of the certificate of service of the request form, the employer or insurance carrier shall be deemed to have waived any objection to the employee's request. Objection shall be in writing on a form prescribed by the director and shall be served on the employee or, if represented, the employee's authorized representative within twenty days after the date of the certificate of service of the request form. An insurance carrier, or an employer's authorized representative if self-insured, shall track how often an injured employee requests to change his or her physician and how often such change is granted or denied and shall report such information to the division upon request. Upon the proper showing to the division, the employee may procure the division's permission at any time to have a physician of the employee's selection treat the employee, and in any nonsurgical case the employee, with such permission, in lieu of medical aid, may procure any nonmedical treatment recognized by the laws of this state as legal. The practitioner administering the treatment shall receive fees under the medical provisions of articles 40 to 47 of this title as specified by the division.

(B) If an injured employee is permitted to change physicians under sub-subparagraph (A) of this subparagraph (VI) resulting in a new authorized treating physician who will provide primary care for the injury, then the previously authorized treating physician providing primary care shall continue as the authorized treating physician providing primary care for the injured employee until the injured employee's initial visit with the newly authorized treating physician, at which time the treatment relationship with the previously authorized treating physician providing primary care is terminated.

(C) Nothing in this subparagraph (VI) precludes any former authorized treating physician from performing an examination under subsection (1) of this section.

(D) If an injured employee is permitted to change physicians pursuant to sub-subparagraph (A) of this subparagraph (VI) resulting in a new authorized treating physician who will provide primary care for the injury, then the opinion of the previously authorized treating physician providing primary care regarding work restrictions and return to work controls unless that opinion is expressly modified by the newly authorized treating physician.

(5) (a) [Editor's note: This version of subsection (5)(a) is effective January 1, 2028.]

(I) (A) Immediately upon receipt of notice of an on-the-job injury from an employee who is a resident of Colorado, but not more than seven calendar days after receipt of notice of the on-the-job injury, an employer or insurer shall, in written verified form, notify the injured employee of the injured employee's right to designate a treating physician and notify the injured employee where to access the division's list of level I and level II accredited physicians. The director shall create a form to implement the procedure to designate a physician. The employee may designate only a level I or level II accredited physician licensed under the "Colorado Medical Practice Act", article 240 of title 12, as the employee's authorized treating physician. The authorized treating physician designated by the employee must be within seventy miles of the employee's work or home address, unless there are three or fewer level I or level II accredited physicians within seventy miles of the employee's work or home address who are willing to treat the injured employee. If there are three or fewer level I or level II accredited physicians within seventy miles of the employee's work or home address who are willing to treat the injured employee, then the authorized treating physician designated by the employee must be within one hundred miles of the employee's work or home address; except that an injured employee may, upon good cause shown, designate an authorized treating physician who is not within one hundred miles of the employee's work or home address. Good cause is presumed to exist if there are three or fewer level I or level II accredited physicians within one hundred miles of the employee's work or home address who are willing to treat the injured employee. An accredited physician is presumed willing to treat an injured worker unless the physician indicates the contrary to a party. The employee must designate the treating physician in writing on the form prescribed by the director. The employee may make one treating physician designation on the form prescribed by the director any time after the on-the-job injury but before being placed at maximum medical improvement. If the employee declines to designate a physician within seven calendar days after receipt of notice of the right to designate in written verified form, an employer or insurer may designate only a level I or level II accredited physician licensed under the "Colorado Medical Practice Act", article 240 of title 12, as the employee's authorized treating physician. The employee may subsequently designate a physician consistent with this subsection (5)(a)(I)(A). The physician designated by the employer or insurer and the physician designated by the employee shall comply with subsection (5)(a)(IV)(A) of this section. For an injured employee who is not a resident of Colorado, as soon as possible, but no later than ten calendar days after the receipt of a notice of an on-the-job injury, an employer or insurer shall designate a treating physician and notify the employee of the designation in writing. The treating physician must be within one hundred miles of the employee's home address. If the employer or insurer declines to designate a physician within the ten-calendar-day time period, the employee may designate a treating physician within one hundred miles of the employee's home address in writing to the employer or through attendance at an appointment with the employee's designated physician.

(B) In an emergency situation, an injured employee shall be taken to any physician or health-care facility that is able to provide the necessary care. When emergency care is no longer required, subsection (5)(a)(I)(A) of this section applies. Immediately upon receipt of notice that emergency care is no longer required, but not more than seven calendar days after receipt of notice that emergency care is no longer required, an employer or insurer shall, in written verified form, notify the injured employee of the injured employee's right to designate a treating physician and notify the injured employee where to access the division's list of level I and level II accredited physicians.

(II) An employee may obtain a one-time change in the designated authorized treating physician under this section by providing notice that meets the following requirements:

(A) The notice is provided within one hundred twenty days after the date of the first physician designation, but before the injured employee reaches maximum medical improvement;

(B) The notice is in writing and submitted on a form designated by the director. The notice provided in this subsection (5)(a)(II) must also simultaneously serve as a request and authorization to the initially authorized treating physician to release all relevant medical records to the newly authorized treating physician.

(C) The notice is directed to the insurer or to the employer's authorized representative, if self-insured, and to the initially authorized treating physician and is deposited in the United States mail or hand-delivered to the employer, who shall notify the insurer, if necessary, and the initially authorized treating physician;

(D) The new physician is a level I or level II accredited physician licensed under the "Colorado Medical Practice Act", article 240 of title 12; and

(E) The transfer of medical care does not pose a threat to the health or safety of the injured employee.

(III) An insurer, or an employer's authorized representative if the employer is self-insured, shall track how often injured employees change their authorized treating physician pursuant to subsection (5)(a)(II) of this section and shall report such information to the division upon request.

(IV) (A) When an injured employee changes their designated authorized treating physician, the newly authorized treating physician shall make a reasonable effort to avoid any unnecessary duplication of medical services.

(B) The originally authorized treating physician shall send all medical records in their possession pertaining to the injured employee to the newly authorized treating physician within seven calendar days after receiving a request for medical records from the newly authorized treating physician.

(C) The originally authorized treating physician shall continue as the authorized treating physician for the injured employee until the injured employee's initial visit with the newly authorized treating physician, at which time the treatment relationship with the initially authorized treating physician terminates.

(D) The opinion of the originally authorized treating physician regarding work restrictions and return to work controls unless and until such opinion is expressly modified by the newly authorized treating physician.

(E) The newly authorized treating physician shall be presumed to have consented to treat the injured employee unless the newly authorized treating physician expressly refuses in writing within five days after the date of the notice to change authorized treating physicians. If the newly authorized treating physician refuses to treat the injured employee, the employee may request an alternative authorized treating physician who is a level I or level II accredited physician licensed under the "Colorado Medical Practice Act", article 240 of title 12.

(V) If an authorized treating physician moves from one facility to another, or from one corporate medical provider to another, an injured employee may continue care with the authorized treating physician, and the original facility or corporate medical provider shall provide the injured employee's medical records to the authorized treating physician within seven days after receipt of a request for medical records from the authorized treating physician.

(VI) (A) In addition to the one-time change of physician allowed in subsection (5)(a)(II) of this section, upon written request to the insurer or to the employer's authorized representative if the employer is self-insured, an injured employee may procure written permission to have a personal physician or chiropractor treat the employee. The employee must complete the written request on a form prescribed by the director. If the employer or insurer neither grants nor refuses the permission request within twenty days after the date of the certificate of service of the request form, the employer or insurer is deemed to have waived any objection to the employee's request. If the employer or insurer objects to the request, the employer or insurer shall make the objection in writing on a form prescribed by the director and shall serve the written objection on the employee or, if represented, the employee's authorized representative within twenty days after the date of the certificate of service of the request form. An insurer, or an employer's authorized representative if the employer is self-insured, shall track how often an injured employee requests to change the employee's physician and how often such change is granted or denied and shall report such information to the division upon request. Upon the proper showing to the division, the employee may procure the division's permission at any time to have a physician of the employee's selection treat the employee, and in any nonsurgical case the employee, with such permission, in lieu of medical aid, may procure any nonmedical treatment recognized by the laws of this state as legal. The practitioner administering the treatment shall receive fees under the medical provisions of articles 40 to 47 of this title 8 as specified by the division.

(B) If an injured employee is permitted to change physicians under subsection (5)(a)(VI)(A) of this section resulting in a new authorized treating physician who will provide primary care for the injury, then the previously authorized treating physician providing primary care shall continue as the authorized treating physician providing primary care for the injured employee until the injured employee's initial visit with the newly authorized treating physician, at which time the treatment relationship with the previously authorized treating physician providing primary care is terminated.

(C) Nothing in this subsection (5)(a)(VI) precludes any former authorized treating physician from performing an examination under subsection (1) of this section.

(D) If an injured employee is permitted to change physicians pursuant to subsection (5)(a)(VI)(A) of this section resulting in a new authorized treating physician who will provide primary care for the injury, then the opinion of the previously authorized treating physician providing primary care regarding work restrictions and return to work controls unless that opinion is expressly modified by the newly authorized treating physician.

(VII) An attorney representing an injured employee shall not refer the injured employee to an authorized treating physician or physician practice in which the attorney has an ownership interest or other financial interest.

(b) Any private insurer or self-insured employer acting as its own insurance carrier as provided in section 8-44-201 providing workers' compensation coverage shall pay for chiropractic care as provided in paragraph (a) of this subsection (5).

(c) A treating physician shall not communicate with the employer or insurer of an injured worker regarding that injured worker unless:

(I) The injured worker is present for the communication; or

(II) The treating physician makes an accurate written record of the communication, containing all relevant and material information that was communicated, and provides the injured worker access to the writing in the same manner as medical records disclosures as required by director rules.

(6) Application or prosecution of a claim for benefits shall be a waiver of any privilege concerning communications relating to all medical issues raised by the claim, for the purposes of a utilization review conducted pursuant to section 8-43-501.

(7) An employer or insurer shall not be liable for treatment provided pursuant to article 285 of title 12, unless such treatment has been prescribed by an authorized treating physician.

(8) Upon request by an employee who has not reached maximum medical improvement and whose authorized treating physician is not level II accredited, an insurer or self-insured employer shall select a level II accredited physician as the authorized treating physician.

(9) (a) Health-care services provided shall be deemed authorized if the claim is found to be compensable when:

(I) Compensability of a claim is initially denied;

(II) The services of the physician selected by the employer are not tendered at the time of the injury; and

(III) The injured worker is treated:

(A) At a public health facility in the state;

(B) At a public health facility within one hundred fifty miles of the residence of the injured worker; or

(C) Through a publicly funded program.

(b) A claimant shall not be liable for payment for treatment by the provider under this subsection (9) if the treatment is reasonably needed and related to the injury.

(10) (a) If an authorized physician refuses to provide medical treatment to an injured employee or discharges an injured employee from medical care for nonmedical reasons when the injured employee requires medical treatment to cure or relieve the effects of the work injury, then the physician shall, within three business days from the refusal or discharge, provide written notice of the refusal or discharge by certified mail, return receipt requested, to the injured employee and the insurer or self-insured employer. The notice must explain the reasons for the refusal or discharge and must offer to transfer the injured employee's medical records to any new authorized physician upon receipt of a signed authorization to do so from the injured employee. The director or any administrative law judge of the office of administrative courts has jurisdiction to resolve disputes regarding whether a refusal to provide medical treatment or a discharge from medical care was for medical or nonmedical reasons.

(b) [Editor's note: This version of subsection (10)(b) is effective until January 1, 2028.] If the insurer or self-insured employer receives written notice pursuant to paragraph (a) of this subsection (10), or if the insurer or self-insured employer and the authorized treating physician receive written notice by certified mail, return receipt requested, from the injured employee or the injured employee's legal representative that an authorized physician refused to provide medical treatment to the injured employee or discharged the injured employee from medical care for nonmedical reasons when such injured employee requires medical treatment to cure or relieve the effects of the work injury, and there is no other authorized physician willing to provide medical treatment, then the insurer or self-insured employer shall, within fifteen calendar days from receiving the written notice, designate a new authorized physician willing to provide medical treatment. If the insurer or self-insured employer fails to designate a new physician pursuant to this paragraph (b), then the injured employee may select the physician who attends to the injured employee.

(b) [Editor's note: This version of subsection (10)(b) is effective January 1, 2028.] If an insurer or self-insured employer receives written notice pursuant to subsection (10)(a) of this section, or if the insurer or self-insured employer and the authorized treating physician receive written notice by certified mail, return receipt requested, from an injured employee or the injured employee's legal representative that an authorized physician refused to provide medical treatment to the injured employee or discharged the injured employee from medical care for nonmedical reasons when the injured employee requires medical treatment to cure or relieve the effects of the work injury, and there is no other authorized physician willing to provide medical treatment, then the insurer or self-insured employer shall, within fifteen calendar days after receiving the written notice, advise the injured employee in writing that the injured employee may designate a new level I or level II accredited physician licensed under the "Colorado Medical Practice Act", article 240 of title 12, as the employee's new authorized treating physician. The employee must designate the new treating physician in writing on the form prescribed by the director.

Source: L. 90: Entire article R&RE, p. 513, § 1, effective July 1; (6) amended, p. 1844, § 31, effective July 1. L. 96: (8) added, p. 271, § 3, effective April 8. L. 2007: (5)(a) amended, p. 763, § 1, effective January 1, 2008. L. 2009: (9) added, (SB 09-243), ch. 269, p. 1223, § 5, effective July 1; (2) amended, (SB 09-168), ch. 184, p. 807, § 5, effective August 5. L. 2010: (2) amended, (SB 10-163), ch. 66, p. 233, § 7, effective March 31; (5)(c) added, (SB 10-011), ch. 302, p. 1433, § 3, effective May 27. L. 2011: (1) amended, (SB 11-199), ch. 196, p. 760, § 3, effective May 23. L. 2014: (1)(b)(I) amended and (10) added, (SB 14-191), ch. 316, p. 1374, § 8, effective July 1; (5)(a)(I)(A) amended and (5)(a)(I)(C) added, ch. 324, p. 1422, § 1, effective April 1, 2015. L. 2016: (5)(a)(I)(D) and (5)(a)(I)(E) added and (5)(a)(VI) amended, (SB 16-217), ch. 272, p. 1128, § 4, effective July 1. L. 2019: (7) amended, (HB 19-1172), ch. 136, p. 1648, § 23, effective October 1. L. 2025: (5)(a) and (10)(b) amended, (HB 25-1300), ch. 442, p. 2546, § 3, effective January 1, 2028. L. 2026: (5)(a)(III)(C) amended, (SB 26-186), ch. 315, p. 1853, § 15, effective August 12.

Editor's note: (1) This section is similar to former § 8-51-110 as it existed prior to 1990.

(2) Section 4(2) of chapter 442 (HB 25-1300), Session Laws of Colorado 2025, provides that the act changing this section applies to workers' compensation claims filed on or after January 1, 2028.

Cross references: For the legislative declaration in SB 16-217, see section 1 of chapter 272, Session Laws of Colorado 2016. For the legislative declaration in HB 25-1300, see section 1 of chapter 442, Session Laws of Colorado 2025.

ANNOTATION

I. General Consideration.

II. Employee's Refusal to be Treated.

III. Employer's Right to Select Physician.

IV. Employee's Refusal to Submit to Exam or Evaluation.

I. GENERAL CONSIDERATION.

Law reviews. For article, "A Significant Change in the Colorado Workmen's Compensation Act: ‘Accidents’, ‘Injuries’, and ‘Heart Attack’", see 41 Den. L. Ctr. J. 189 (1964).

Annotator's note. (1) Since § 8-43-404 is similar to § 8-51-110 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

(2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1969 amendment which vested the director of the division of labor with the power previously exercised by the industrial commission to enforce the provisions of this section.

The termination provision of subsection (5)(a)(VI)(B) applies only to a request to change a treating physician made after the effective date of that provision. Subsection (5)(a)(IV) applies only to changes of physician obtained under subsection (5)(a)(III). Berthold v. Indus. Claim Appeals Office, 2017 COA 145, 410 P.3d 810.

Because claimant's request to change her physician predated subsection (5)(a)(VI)(B), and because the request was not granted under subsection (5)(a)(III), her treatment with her new physician did not automatically terminate her first physician's status as an authorized treating physician. Berthold v. Indus. Claim Appeals Office, 2017 COA 145, 410 P.3d 810.

The 2016 amendment to subsection (5)(a)(VI) is procedural in nature because it does not create, eliminate, or modify vested rights or liabilities. And the legislature clearly intended this procedural amendment to apply to all claims. But the legislature did not clearly express the intent to apply the amendment to completed transactions within those claims. So, the amendment applies only prospectively to transactions taking place after the amendment's effect. Berthold v. Indus. Claim Appeals Office, 2017 COA 145, 410 P.3d 810.

Resumption of benefits after suspension. This section permits a resumption of benefits after a period of suspension when the disqualifying condition has been removed. Dziewior v. Mich. Gen. Corp., 672 P.2d 1026 (Colo. App. 1983).

Industrial claim appeals office finding that claimant had failed to remove the disqualifying condition was supported by substantial evidence and justified director's refusal to reinstate benefits. Bacon v. Indus. Claim Appeals Office, 746 P.2d 74 (Colo. App. 1987).

Effective date of division's "permission" is date of ALJ's oral summary order. Delaying change of physician until written order is issued would be contrary to statutory goal of assuring quick and efficient delivery of medical benefits. Consol. Landscape v. Indus. Claim Appeals Office, 883 P.2d 571 (Colo. App. 1994).

Administrative law judge properly excluded custody evaluation from custody case as being outside the scope of the worker's compensation case and therefore not of aid to the understanding of the worker's compensation case. Powderhorn Coal Co. v. Weaver, 835 P.2d 616 (Colo. App. 1992).

Applied in Safeway Stores v. Indus. Comm'n, 678 P.2d 1078 (Colo. App. 1984).

II. EMPLOYEE'S REFUSAL TO BE TREATED.

Where risks do not justify claimant's refusal to submit to operation, no full compensation. While a claimant has the option to refuse corrective surgery, he may not do so and continue to receive full compensation where it appears that the risk involved in the recommended surgery is not such as to justify claimant's refusal thereof. Hays v. Indus. Comm'n, 138 Colo. 334, 333 P.2d 617 (1958).

The industrial commission must determine no unusual risks before denying relief. Before the commission would be justified in denying relief to an applicant because of his refusal to submit to treatment or surgery it must appear that the proposed treatment or surgery is such as to be free of unusual risks and calculated to effect a cure. Cain v. Indus. Comm'n, 136 Colo. 227, 315 P.2d 823 (1957); MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001 (Colo. App. 2002).

The reasonableness of claimant's refusal to submit to operative treatment is a question of fact to be determined by the commission. Overton v. City & County of Denver, 106 Colo. 114, 102 P.2d 474 (1940); Cain v. Indus. Comm'n, 136 Colo. 227, 315 P.2d 823 (1957); Hays v. Indus. Comm'n, 138 Colo. 334, 333 P.2d 617 (1958); MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001 (Colo. App. 2002).

The burden of proof is on the employer to establish that a tendered operation is simple, safe, and reasonably certain to effect a cure. Cain v. Indus. Comm'n, 136 Colo. 227, 315 P.2d 823 (1957).

So that evidence will not support the suspension of compensation where there is no showing of a refusal to submit to surgery or that claimant persisted in any unsanitary or injurious practice which tended to imperil or retard his recovery. Padillo v. F.H. Linneman Constr. Co., 29 Colo. App. 137, 479 P.2d 990 (1971).

In any event, this section specifically gives the industrial commission discretion in matters of this kind, and those seeking to attack the result must show that it abused its discretion. Andrews v. Indus. Comm'n, 73 Colo. 456, 216 P. 256 (1923); Nat'l Lumber & Creosoting Co. v. Kelly, 101 Colo. 535, 75 P.2d 144 (1937).

In the absence of an abuse of discretion, the decision of the industrial commission as to the reasonableness of a claimant's refusal to submit to corrective surgery, is not subject to revision by the courts. Hays v. Indus. Comm'n, 138 Colo. 334, 333 P.2d 617 (1958); MGM Supply Co. v. Indus. Claim Appeals Office, 62 P.3d 1001 (Colo. App. 2002).

Claimant not to be penalized for acting on advice of personal physician. Nat'l Lumber & Creosoting Co. v. Kelly, 101 Colo. 535, 75 P.2d 144 (1937).

A claimant who refuses corrective surgery because of his religious convictions cannot subject his employer to greater liability than would obtain if claimant's faith permitted him to undergo surgery required. Indus. Comm'n v. Vigil, 150 Colo. 356, 373 P.2d 308 (1962).

On the other hand the elements of fear and anxiety may be taken into consideration by the commission as a proper basis for the award of compensation in a workmen's compensation case. Nat'l Lumber & Creosoting Co. v. Kelly, 101 Colo. 535, 75 P.2d 144 (1937).

Suspension of benefits not sanction. Decision to suspend worker's compensation benefits was based on inference that worker's attempt to impede testing of his alleged disability was indicative of lack of disability, and was not based on statute allowing hearing officer to impose sanctions for failure to comply with discovery. Nova v. Indus. Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988).

Vocational rehabilitation. The right which accrues to a claimant because of the failure of the director to approve a vocational rehabilitation plan is the right not to begin complying with the plan. Once the plan is implemented and claimant voluntarily submits to it, and in the absence of the director's express disapproval, the lack of approval by the director does not excuse the claimant's failure to cooperate. Bacon v. Indus. Claim Appeals Office, 746 P.2d 74 (Colo. App. 1987).

Provisions of this statute applicable to refusal to undergo vocational rehabilitation do not require that claimant be directed to cooperate with vocational rehabilitation prior to the issuance of an order to suspend claimant's receipt of benefits. Bacon v. Indus. Claim Appeals Office, 746 P.2d 74 (Colo. App. 1987) (decided under law in effect prior to 1987 amendment).

Applied in Walton v. Indus. Comm'n, 738 P.2d 66 (Colo. App. 1987).

III. EMPLOYER'S RIGHT TO SELECT PHYSICIAN.

Law reviews. For article, "A Review of Medical Issues in Worker's Compensation", see 19 Colo. Law. 667 (1990).

A rational basis exists for excluding employees of governmental entities and health care providers from the four-physician referral requirement. The exemption therefore does not violate the equal protection requirement. Sanchez v. Indus. Claim Appeals Office, 2017 COA 71, 411 P.3d 245.

The employer or insurer has the right in the first instance to select the physician and services requisite to proper treatment of the employee. State Comp. Ins. Fund v. Luna, 156 Colo. 106, 397 P.2d 231 (1964).

This section authorizes the employer to select the treating physician "in the first instance". Granite Constr. Co. v. Leonard, 40 Colo. App. 20, 568 P.2d 500 (1977).

Based on the plain language of subsection (5)(a) and cases interpreting that subsection, an employer's right of first selection of a treating physician precludes an award of medical benefits for treatment received before the decedent's workers' compensation claim was filed. Bunch v. Indus. Claim Appeals Office, 148 P.3d 381 (Colo. App. 2006).

Where medical services are tendered to an injured employee in the first instance, the employee's secondary right of selection is lost. Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957).

Furthermore, an employer cannot give an employee carte blanche to select a different doctor, especially when the employee's selection has resulted in surgical expense to not only the employer but also the fund. Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957).

Employer or insurer may designate a medical care facility rather than an individual physician. Although subsection (5)(a) refers to the right of the employer or insurer to select a "physician", the statute's use of the singular does not, without more, establish that only a single individual may be designated. Andrade v. Indus. Claim Appeals Office, 121 P.3d 328 (Colo. App. 2005).

Right to select physician is independent of the right to contest liability. The employer or insurer may deny liability and still retain the right to select a treating physician in the event they later admit liability or are found liable for the injury. Yeck v. Indus. Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999).

If a claimant wants to change physicians, he or she has a statutory obligation to request that change in accordance with subsection (5)(a). Yeck v. Indus. Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999).

Where employer fails to exercise its right to select treating physician and notifies employee that medical treatment will not be tendered, employee's right to select her own physician becomes vested. Rogers v. Indus. Claim Appeals Office, 746 P.2d 565 (Colo. App. 1987); Brickell v. Bus. Mach., Inc., 817 P.2d 536 (Colo. App. 1990).

Claimant's use of another physician requires consent of the industrial commission before employer may be held liable. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 129 Colo. 353, 269 P.2d 1070 (1954); Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Wishbone Rest. v. Moya, 162 Colo. 30, 424 P.2d 119 (1967).

Employee is not required to obtain permission to consult physician chosen by employee, where employer did not offer to provide medical treatment, and where employee initially consulted physician provided by employee's insurance plan who declined to treat employee because employee's injuries were work-related. Ruybal v. Univ. Health Scis. Ctr., 768 P.2d 1259 (Colo. App. 1988).

Notice and consent necessary to change or add physicians. The workmen's compensation act does not permit an injured employee to change physicians or to employ additional physicians without notice to his employer or its insurer and consent of the division of labor. Pickett v. Colo. State Hosp., 32 Colo. App. 282, 513 P.2d 228 (1973).

A unilateral declaration of intent to change physicians is not a "request" to change physicians. Subsection (5)(a) requires a claimant to request a new physician before switching physicians, but a declaration of intent to change physicians does not meet the requirement that the claimant request a new physician. Lutz v. Indus. Claim Appeals Office, 24 P.3d 29 (Colo. App. 2000).

Employer's failure to respond to worker's request for authorization to seek treatment from second physician waived any objection to second physician's treatment. Denny's Rest., Inc. v. Husson, 746 P.2d 63 (Colo. App. 1987).

The act of the employee, in engaging his own surgeon, does not relieve the employer from all responsibility for the payment of benefits provided by law for disability incurred by the employee in an industrial accident. Colo. Fuel & Iron Corp. v. Indus. Comm'n, 129 Colo. 353, 269 P.2d 1070 (1954); Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Mennonite Hosp. v. Corley, 28 Colo. App. 585, 476 P.2d 274 (1970).

Where insurer refuses to pay expenses for operation reducing disability, insurer may not benefit. If there has been a significant reduction in the percentage of permanent disability suffered by the employee due to an operation successfully performed by the employee's own physician, and the insurance carrier refuses to defray this expense, the insurer is not entitled to accept the benefits thereof which take the form of substantially reduced payments of compensation for permanent disability. State Comp. Ins. Fund v. Luna, 156 Colo. 106, 397 P.2d 231 (1964); Wishbone Rest. v. Moya, 162 Colo. 30, 424 P.2d 119 (1967).

Employer or insurer not liable for unauthorized medical expenses. When an injured employee incurs unauthorized medical expenses, the employer or its insurer is not liable for such expenses. Pickett v. Colo. State Hosp., 32 Colo. App. 282, 513 P.2d 228 (1973).

An employee may engage medical services if the employer has expressly or impliedly conveyed to the employee the impression that the employee has authorization to proceed in this fashion, or, with full knowledge over a sustained period of time, has failed to object to claimant's change of physician. Greager v. Indus. Comm'n, 701 P.2d 168 (Colo. 1985).

Also insurer's refusal to pay claimant's unauthorized medical expenses does not entitle claimant to compensation for a higher degree of permanent disability than that which she actually suffered. Pickett v. Colo. State Hosp., 32 Colo. App. 282, 513 P.2d 228 (1973).

Claimant's letter, which did not unambiguously set forth a request to have own physician treat claimant, did not require rejection by insurer as a request to be treated by claimant's own physician. Insurer's action of informing claimant, who was represented by counsel, that insurer could not communicate directly with claimant was appropriate and did not constitute a failure to respond within the meaning of § 8-43-110 (5)(a). Brown & Root v. Indus. Claim Appeals Office, 833 P.2d 780 (Colo. App. 1991).

However, employer's or carrier's objection to treatment by a second physician is not waived where claimant, who was represented by counsel, sent an ambiguous letter to the claims service requesting permission to obtain additional information about her condition and other doctors for more opinions, and was sent a response from the claims service informing the claimant that she would have to correspond with the claims service through her attorney. The industrial claims panel erred in setting aside the administrative law judge's finding that treatment of the claimant by an orthopedic surgeon was not authorized by default under this section. Brown & Root v. Indus. Claim Appeals Office, 833 P.2d 780 (Colo. App. 1992).

This section requires only that a claimant request permission for alternative care from the employer or the insurer. It does not restrict the request to the insurer if an employer is separately insured. Denny's Rest., Inc. v. Husson, 746 P.2d 63 (Colo. App. 1987).

Initial denial by insurer of claimant's request for a change of physician did not negate its obligation to respond to subsequent requests for a change of physician and failure to do so pursuant to subsection (5)(a) within 20 days of request rendered denial waived. Jacoby v. Metro Taxi, Inc., 851 P.2d 245 (Colo. App. 1993).

No authority exists for an employer to appoint an agent, other than an insurer, and unilaterally vest it with the rights and responsibilities assigned either to employers or insurers by the Workmen's Compensation Act. Denny's Rest., Inc. v. Husson, 746 P.2d 63 (Colo. App. 1987).

Emergency creates exception to requirements of subsection (5)(a), relieving employee of duty to notify employer or await employer's choice of physician before seeking medical attention. Sims v. Indus. Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).

Once emergency has ended, employee must notify employer of need for further treatment and employer may select physician, or services are not compensable. Sims v. Indus. Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).

Panel properly construed subsection (5)(a) to require that an insurer respond to an authorization request within 20 days of mailing of the written request. Gianetto Oil v. Indus. Claim Appeals Office, 931 P.2d 570 (Colo. App. 1996).

Claimant was entitled to a change in physicians after having reached maximum medical improvement to the extent that the change was for purposes of obtaining future medical treatment to relieve the effects of her industrial injury or to prevent future deterioration of her work-related condition. Story v. Indus. Claim Appeals Office, 910 P.2d 80 (Colo. App. 1995).

A claimant's physician, as an accredited provider, does not possess an express or implied statutory right to treat any claimant for his or her work-related injury or to provide further treatment. Carlson v. Indus. Claim Appeals Office, 950 P.2d 663 (Colo. App. 1997).

A governmental employer's on-site health care facility meets applicable state requirements to provide health care services on the employer's premises when: (1) a single doctor is scheduled to be on-site only two days per week but is available at other times; and (2) does not supervise the administration of the clinic but does provide medical supervision over the clinic's operation. Sanchez v. Indus. Claim Appeals Office, 2017 COA 71, 411 P.3d 245.

IV. EMPLOYEE'S REFUSAL TO SUBMIT TO EXAM OR EVALUATION.

An administrative law judge may impose additional penalties pursuant to § 8-43-304 even though this section provides a specific penalty. Kennedy v. Indus. Claim Appeals Office, 100 P.3d 949 (Colo. App. 2004).

It was proper for benefits to be restored after a suspension when an employee initially refused to submit to an examination but the employee and the employer later stipulated to an examination and no order was entered requiring the employee to submit to an examination. Magnetic Eng'g, Inc. v. Indus. Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).