Section 8-43-404(5)(a) affords the employer or insurer the right in the first instance to select a physician to treat the injury. The statute requires the employer or insurer to “provide a list of at least two physicians, … in the first instance, from which list an injured employee may select the physician who attends said injured employee.” The failure to tender the “services of a physician … at the time of injury” gives the employee “the right to select a physician or chiropractor.” W.C.R.P. 8-2(A) provides a framework for providing the required list of physicians and similarly states that “[w]hen an employer has notice of an on the job injury, the employer or insurer shall provide” the injured worker with the Designated Provider List. The injured worker may select an authorized treating physician of the workers’ choosing when the employer fails to comply with the requirements of W.C.R.P. 8-2.
The requirement to tender the Designated Provider List is triggered when, based on an objective standard, the employer “has some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case ‘might’ involve a potential compensation claim.” Jones v. Adolph Coors Co., 689 P.2d 681, 688 (Colo. App. 1984)(emphasis added). Thus, even when an employee declines medical treatment, the employer should tender the Designated Provider List upon receiving information of the injury. Otherwise, the employee probably will be entitled to select a physician of the employee’s choosing. See, Harrison v. Walmart Stores, Inc., W. C. Nos. 4-822-267-04 & 4-855-790 (April 27, 2012).