Opinion
W.C. No. 4-785-117.
September 8, 2011.
ORDER OF REMAND
The respondents seek review of a supplemental order of Administrative Law Judge Felter (ALJ) dated May 5, 2011, which ordered that the claimant had overcome the Division Independent Medical Examination (DIME) physician's opinions on maximum medical improvement (MMI) and impairment by clear and convincing evidence, that the respondents had failed to overcome the DIME physician's ultimate opinion that the claimant had sustained a compensable, work-related injury to his cervical spine, and that all other issues, including temporary disability benefits and disfigurement, were reserved for future decision. It is unclear as to whether the supplemental order is final and reviewable since no specific medical benefits were ordered. Therefore, we remand the matter for further finding and clarification regarding the award of medical benefits.
The claimant underwent a DIME on the issues of MMI, permanent impairment, and apportionment. The specific body parts that the DIME was to evaluate included the neck, left shoulder, and left arm. In his written report, the DIME physician determined the claimant reached MMI for his left shoulder, and provided an impairment rating for this condition. The DIME physician also opined that the claimant did not have permanent impairment for any injury to the cervical spine. The DIME physician opined that the claimant's trapezial/periscapular pain was secondary to the primary shoulder injury and not due to a primary cervical injury.
The respondents sought a hearing to overcome the DIME physician's opinion on impairment rating. The claimant filed a response to the application for hearing, seeking to overcome the DIME physician's opinions regarding impairment rating and MMI on the basis that the claimant had cervical dysfunction as a result of his industrial injuries.
Prior to the hearing, the claimant was evaluated by E. Jeffrey Donner, M.D. and underwent an independent medical examination with Jeffrey Wunder, M.D. As pertinent here, Dr. Donner opined that the claimant had not reached MMI for his cervical or shoulder injuries due to the claimant's persistent pain and limited movement. Dr. Donner recommended interlaminar epidural injections at the C5-C6 level as well as an evaluation with Dr. Grant to see if there is any further treatment that would benefit the residual symptoms in the claimant's left shoulder.
Dr. Wunder opined that the claimant had not reached MMI for his left shoulder or his cervical injury. Dr. Wunder recommended that the claimant undergo an acromioclavicular injection with local anesthetic and corticosteroid, and, if he has significant improvement, he should be considered for a distal clavicular resection. Dr. Wunder further recommended diagnostic and medial branch blocks for the claimant's cervical injury, including medial branches corresponding to the left C2-3, C3-4, and C4-5 facet joints and also including a third occipital nerve. Dr. Wunder opined that if the claimant has a diagnostic response, then he would be a candidate for radiofrequency facet neurotomy. Dr. Wunder further opined that if the claimant did not have a diagnostic response to the medial branch blocks, then he agreed with Dr. Donner that interlaminar cervical epidural steroid injections would be reasonable. According to Dr. Wunder, if there is no improvement following the injection, then surgical consultation should be sought.
Prior to the hearing, and over a two-day period of time, the parties took the deposition of the DIME physician. During the first day, the DIME physician changed his opinion regarding MMI and causality, concluding that the claimant injured his neck in the industrial accident, that his neck should have been evaluated and treated prior to being placed at MMI, that the claimant never was at MMI, and that treatment for both his left shoulder and neck would be reasonable, necessary, and related to the original work injury. In particular, the DIME physician opined that the treatment recommended by Dr. Wunder seemed appropriate. During the second day, the DIME physician again opined that the claimant suffered a cervical injury in the industrial accident. The DIME physician, however, again changed his opinion regarding MMI, concluding that the claimant previously was at MMI for both his left shoulder and cervical complaints.
A hearing subsequently was held. On May 5, 2011, the ALJ entered a supplemental order finding the claimant overcame the DIME physician's finding of MMI by clear and convincing evidence. In particular, the ALJ found the claimant proved the cervical condition is causally-related to the industrial injury, and that he is not at MMI for that condition because medical treatment is necessary. In his supplemental order, however, the ALJ did not specify which medical benefits he was awarding the claimant. Instead, the ALJ found that "all of the Claimant's medical care and treatment (as reflected in the evidence) was and is reasonable necessary." The ALJ specifically found and ruled, in pertinent part, as follows:
Medical Benefits
f To be a compensable benefit, medical care and treatment must be causally related to an industrial injury or occupational disease. (citation omitted). As found, Claimant's medical treatment is causally related to the aggravating injuries to his [left upper extremity] and cervical spine of November 29, 2008. Also, medical treatment must be reasonably necessary to cure and relieve the effects of the industrial occupational disease. (citations omitted) As found, all of the Claimant's medical care and treatment (as reflected in the evidence) was and is reasonably necessary. Claimant has proven this by preponderant evidence.
ORDER
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B. The Respondents shall pay all of the costs of Claimant's authorized medical care and treatment for the November 29, 2008 injuries, including for the cervical spine, subject to the Division of Workers Compensation Medical Fee Schedule.
C. Any and all issues not determined herein, including temporary disability benefits from September 3, 2009 and bodily disfigurement are reserved for future decision.
The respondents appealed the supplemental order, raising numerous arguments for review, including whether substantial evidence in the record supported the ALJ's findings that the claimant never was at MMI and whether substantial evidence supported the order requiring the respondents to pay "all the costs of Claimant's authorized medical care . . . including for the cervical spine."
Section 8-43-301(2), C.R.S. 2010, provides that a party dissatisfied with an order "that requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty may file a petition to review. . ." It is well settled that orders which do not require the payment of benefits or penalties, or deny the claimant any benefit or penalty, are interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo. App. 1989). Further, an award must determine the amount of benefits to be awarded before it may be considered final and reviewable. United Parcel Service v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo. App. 1999). We frequently have held that general awards of medical benefits are not final and reviewable unless the ALJ determines the respondents' liability for specific treatment. Thomas v. Four Corners Health Care, W.C. No. 4-484-220 (December 17, 2002); Atkins v. Centennial School District R-1, W.C. No. 4-275-987 (February 7, 2002); Tooley v. Johnson Sons Trucking, W.C. No. 4-376-713 (January 28, 2000). The basis for these decisions is that the respondents remain free to challenge the reasonableness and necessity of specific treatments.
Here, the ALJ's supplemental order awards medical benefits, as reflected in the evidence. The evidence, however, shows that numerous medical treatments for the claimant's neck and shoulder are recommended. Since the supplemental order does not specify which medical benefits are being awarded and reserves all unresolved issues for future consideration, it is unclear as to whether the order is final and reviewable. Consequently, we remand for further findings as to which specific medical benefits the ALJ is ordering. See Section 8-43-301(8), C.R.S.
IT IS THEREFORE ORDERED that the matter is remanded to the ALJ for additional findings and clarification as to what specific medical benefits, if any, are awarded, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________ John D Baird
___________________________ Kris Sanko
RICHARD LEWIS, 19027 COUNTY ROAD, PLATTEVILLE, CO, (Claimant), BADGER DRILLING COMPANY, LLC, ARP, TX, (Employer), ACE AMERICAN INSURANCE COMPANY, Attn: EVELYN RADEMACHER, C/O: ESIS PORTLAND WC CLAIMS, TAMPA, FL, (Insurer) RING ASSOCIATES, PC, Attn: BOB L. RING, FORT COLLINS, CO, (For Claimant).
CLIFTON, MUELLER, BOVARNICK, PC, Attn: JOANNE C. CREBASA, RICHARD A. BOVARNICK, DENVER, CO, (For Respondents).