Summary
In Woods v. The Home Depot, W.C. No. 4-365-829 (September 27, 2001), the respondents argued the issue of the claimant's entitlement to particular Grover medical treatments was closed because the claimant did not apply for a hearing on the issue within thirty days of the FAL.
Summary of this case from In re Chavez, W.C. NoOpinion
W.C. No. 4-365-829
September 27, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded medical benefits. We affirm.
In 1997 the claimant suffered an admitted right knee injury which was treated by Dr. Schlichtig and Dr. Pak. Dr. Schlichtig placed the claimant at maximum medical improvement (MMI) in February 1998. In April 1998, the respondents filed a final admission of liability which admitted liability for zero permanent disability benefits and medical benefits after MMI as provided by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The claimant timely objected.
The matter was subsequently heard by ALJ Erickson on the issue of permanent partial disability. On August 4, 1999, ALJ Erickson awarded scheduled disability benefits. All other issues were reserved. On August 25, 1999, the respondents filed a Final Payment Notice in accordance with the ALJ Erickson's award of permanent partial disability benefits.
Thereafter the claimant filed an application for hearing on the issue of Grover-type medical benefits. The ALJ rejected the respondents' argument that the issue of Grover-type medical benefits was closed. Further, the ALJ determined the claimant sustained his burden to prove his entitlement to additional medical treatment. The ALJ's order awarded additional medical treatment in the form of follow up visits with Drs. Schlichtig and Pak for increased symptoms in the right knee.
I.
On review the respondents first contend the ALJ lacked jurisdiction to award Grover type medical benefits. We disagree.
A.
The respondents are obligated to provide treatment which is "reasonably needed" to cure and relieve the claimant from the effects of the injury. Section 8-42-101(1)(a), C.R.S. 2001. Medical benefits terminate at MMI. However, the claimant is entitled to Grover-type medical benefits where there is substantial evidence in the record to support a determination that future medical treatment will be reasonable and necessary to relieve the effects of an industrial injury or prevent further deterioration of the claimant's condition. Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995) ; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). For purposes of Grover-type medical benefits, there is no distinction between "active treatment" and "diagnostic procedures"for purposes of awarding Grover-type medical benefits. See Brock v. Jack Brach Sons Trucking, W.C. No. 3-107-451, (December 15, 1995). Consequently, we have held that medical monitoring is a compensable Grover-type medical benefit. See Atwood v. Western Slope Industries, W.C. No. 3-069-135, (November 28, 1994).
Section former § 8-43-203(2)(b)(II), C.R.S. 2000 [amended 2001 Colo. Sess. Laws, ch. 23 at 49 for admissions filed after March 11, 2001], provides that a claim is automatically closed as to the issues admitted in the final admission if the claimant does not timely object and request a hearing on any disputed issues that are ripe for hearing. Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). Here, the claimant timely objected to the respondents' 1998 Final Admission.
Further, it is undisputed the 1998 Final Admission admitted liability for Grover-type medical benefits. Because liability was admitted and because the respondents did not seek to withdraw the admission for Grover-type medical benefits, it was not necessary for the claimant to endorse the issue of future medical benefits in the application for hearing before ALJ Erickson if no specific benefits were ripe for adjudication. Section 8-43-203(2)(d), C.R.S. 2001 (once liability is admitted payments shall continue according to admitted liability). This is true because Grover v. Industrial Commission, supra, contemplates a general admission of liability for future medical benefits with an implicit reservation of the respondents' right to contest the necessity and reasonableness of specific treatment modalities at the time they are recommended. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Stollmeyer v. Industrial Claim Appeals Office, supra.
Neither was the issue closed by ALJ Erickson's order. To the contrary, ALJ Erickson's order expressly reserved all issues other than permanent partial disability for future determination. Compare Brown Root, Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991). Similarly the respondents' Final Payment Notice did not close the issue of future medical benefits. The language in the Rules of Procedure, Part IV(G)(3), 7 Code Colo. Reg.1101-3 which requires the filing of a Final Payment Notice only applies when a "claim has been closed by final order" of an ALJ. Because ALJ Erickson's order was not a final determination of the amount of benefits due the claimant, the respondents were not required to file a final payment notice. In any event, we do not perceive this rule as an attempt to nullify the rights granted under Grover v. Industrial Commission, supra. See City of Englewood v. Industrial Claim Appeals Office, 954 P.2d 640 (Colo.App. 1998) (regulation not controlling if inconsistent with statute).
Further, we agree with the ALJ that the voluntary filing of a Final Payment Notice did not have the effect of closing the claim. Section 8-43-203(2)(b)(II) provides that where the respondents seek to close a claim by the filing of a Final Admission, the Final Admission must contain an explicit notice that the claim will be automatically closed in the absence of a timely objection. See Dalco Industries, Inc. v. Garcia, 867 P.2d 156 (Colo.App. 1993). This requirement is designed to notify the claimant of the need to act to preserve his entitlement to additional benefits. See Bowlen v. Munford, 921 P.2d 59 (Colo.App. 1996). Rule IV(G)(3) does not contain this requirement, and the respondents' Final Payment Notice does not contain any such notice. Consequently, the ALJ correctly determined that the claimant's failure to object to the Final Payment Notice did not bar the claimant's right to a hearing on the claim for additional medical benefits.
B.
Nevertheless, the respondents contend the claimant alleged a "worsening" of condition, and therefore, they argue the ALJ lacked jurisdiction to award additional medical benefits in the absence of a petition to reopen. Again we disagree.
A petition to reopen is only a prerequisite to a claim for medical benefits where the issue was closed by virtue of a final order or final admission of liability. Section 8-43-303, C.R.S. 2001; Burke v. Industrial Claim Appeals Office, 905 P.2d 1 (Colo.App. 1994); Brown Root, Inc. v. Industrial Claim Appeals Office, supra. Contrary to the respondents' contention the claimant was not seeking additional medical benefits to cure or relieve the effects of the injury. Rather, there is substantial evidence the claimant was seeking maintenance benefits after MMI. (Tr. p. 8). Thus, the claim for these medical benefits was not subject to the reopening statute.
II.
Next, the respondents contend the claimant failed to prove a causal connection between the industrial injury and the need for further treatment. The respondents also contend the ALJ ignored evidence the claimant's increased symptoms were caused by the claimant's subsequent employment which aggravated his condition from the industrial injury.
Whether the claimant sustained his burden to prove entitlement to Grover-type medical benefits is a question of fact for resolution by the ALJ. Stollmeyer v. Industrial Claim Appeals Office, supra. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995). On review we must view the evidence in the light most favorable to the prevailing party, and determine whether it is sufficient to support the ALJ's pertinent findings. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951). However, the ALJ is not held to a crystalline standard in articulating her findings of fact. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Rather, the ALJ's order is sufficient if the basis for the award is apparent from the order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986).
The ALJ credited Dr. Schlichtig's February 2 report in which he recommended additional treatment if the claimant's symptoms recurred or worsened. (Conclusions of Law p. 4). The ALJ also credited the claimant's testimony that he continued to have right knee symptoms after MMI and that his symptoms gradually worsened. As we read the ALJ's order, she found Dr. Schlichtig believed the natural consequences of the industrial injury included an increase in right knee symptoms or a worsening of condition. However, the ALJ did not purport to determine the claimant was not longer at MMI for purposes of reopening the claimant's entitlement to medical benefits to cure the injury. Rather, the ALJ awarded additional medical benefits to maintain the claimant at MMI and prevent or retard future deterioration of the claimant's condition.
In so doing, the ALJ expressly recognized the respondents' argument that the claimant's condition was caused by an intervening injury. (Finding of Fact 10). However, the ALJ was persuaded that the industrial injury was the proximate cause of the claimant's need for further medical treatment. Because there is substantial evidence in the claimant's testimony and medical reports of Dr. Schlichtig, Dr. Pak and Dr. Griffis to support the ALJ's findings, we must uphold the ALJ's determinations on review. Further the ALJ's findings support the award of medical benefits. See Joslins Dry Goods Co. v. Industrial Claim Appeals Office, 21 P.3d 866 (Colo.App. 2001).
The respondents remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated April 5, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 27, 2001 to the following parties:
Daniel Woods, 280 Blacktail Rd., Lakeside, MT 59922
The Home Depot, 2455 Paces Ferry Rd., Atlanta, GA 30339
Insurance Company of the State of Pennsylvania, Herman Mansel, Sedgwick CMS, P. O. Box 130820, Dallas, TX 75313-0820
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Kent L. Yarbrough, Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: L. Epperson