Opinion
W.C. No. 4-448-770.
August 4, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated April 5, 2011, that found the insurer liable for some, but not all, contested medical benefits. We affirm.
The claimant sustained an industrial injury to his low back on December 29, 1999. Medical care continued after the claimant reached maximum medical improvement. The matter came before the ALJ for determination of respondents' liability for continuing chiropractic care, a gym membership, and home exercise equipment.
The ALJ determined that the claimant had failed to establish by a preponderance of the evidence that ongoing chiropractic care was reasonably needed to cure and relieve the claimant from the effects of the compensable injury. The ALJ found that the insurer was not liable for the costs of such care rendered after the date of the mailing of his order.
The ALJ found that an exercise program was reasonably needed to relieve the claimant from the effects of the compensable injury. The ALJ determined that the insurer was liable for a gym membership or home exercise equipment and a personal trainer to develop and train the claimant in an exercise program.
We note preliminarily that § 8-42-101(1)(a), C.R.S requires an employer to furnish reasonable and necessary medical treatment "to cure and relieve the employee from the effects of the injury." See Owens v. Industrial Claim Appeals Office, 49 P.3d 1187, 1188 (Colo. App. 2002). The claimant has the burden of proving entitlement to specific medical benefits. See § 8-43-201(1), C.R.S; Lutz v. Industrial Claim Appeals Office, 24 P.3d 29, 31 (Colo. App. 2000). Whether medical treatment is reasonable or necessary is a question of fact for the ALJ, and the ALJ's determination of this issue must be upheld if supported by substantial evidence. Section 8-43-301(8) C.R.S., Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192, 1197 (Colo. App. 2002).
I.
The claimant asks for chiropractic care to be continued at the rate of twice a month until the date of a recommended surgery. We are not persuaded that the ALJ erred in denying such benefits.
The claimant first argues that the ALJ misinterpreted the Medical Treatment Guidelines (Guidelines) regarding chiropractic treatment. The ALJ referred to W.C. Rule of Procedure 17, Exhibit 1(E)(12)(c), Code Colo. Reg. 1101-3, concerning treatment for low back pain. The ALJ determined that the Guidelines recommend chiropractic treatment be limited to three months. We note that Rule 17 Exhibit 1(E)(12)(c) relates to passive therapies. Regarding manipulation, the Guidelines specifically state that while it is a widely used therapeutic intervention for low back pain, the maximum duration should be three months. Rule 17 Exhibit 1(E)(12)(c) further provides that care beyond three months may be called for and refers to the Chronic Pain portions of the Guidelines. We perceive no misinterpretation of this rule by the ALJ.
Citing Rule of Procedure 17, Exhibit 9(H)(7), the ALJ noted that for treatment of chronic pain, the Guidelines recommend that chiropractic treatment be limited to ten treatments in a twelve-month period. Rule 17, Exhibit 9(H)(7) relates to therapy management and provides that some treatment may be helpful on a continued basis if the therapy maintains objective function and decreases medication use. However, the rule limits manipulation maintenance duration to ten visits in a twelve-month period. We again perceive no misinterpretation of the Guidelines by the ALJ.
The claimant next argues that Dr. Beatty never saw him or examined him, and in contrast the surgeon, Dr. Kleiner, did examine the claimant and therefore was more credible. The ALJ found, however, that Dr. Beatty performed an extensive records review. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). Further, as noted by the respondents, the claimant has failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ's factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). Therefore, we are not persuaded that the ALJ was compelled to accept the opinions of Dr. Kleiner rather than those of Dr. Beatty.
II.
The claimant contends that the portion of the order relating to gym membership and a trainer needs to be more specific. The claimant argues that he should be awarded a gym membership and home exercise equipment. The claimant argues that he should be awarded other benefits such as exercise equipment and an air mattress he can use when he goes camping.
The ALJ found that the insurer was liable for a gym membership or home exercise equipment and a personal trainer to develop and train the claimant in an exercise program. This is consistent with the opinions of Dr. Beatty. Beatty Depo. at 12-13. Therefore, the ALJ's determination is supported by substantial evidence and binding on us. Section 8-43-301(8), C.R.S. Moreover, as noted above, because the claimant has failed to provide a transcript of the hearing we must presume that the ALJ's factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, supra.
Further, because there is no transcript it is impossible to tell if the claimant presented the ALJ with a specific dispute regarding the award of these benefits, such as whether the claimant was entitled to both a gym membership and home exercise equipment. Inasmuch as claimant failed to procure a transcript, we presume the regularity of the proceedings at the hearing. See Hanna v. Print Expediters 77 P.3d 863 (Colo. App. 2003) (burden is on appellant to provide record justifying reversal, and absent such a record, we presume the regularity of the trial court proceedings); Lopez v. UB Code Roofing W.C. No. 4-813-382 (October 22, 2010). We therefore are not persuaded to interfere with the ALJ's order. Finally, we have considered the claimant's other contentions, but conclude that they present us with no grounds upon which the ALJ's order may be set aside.
IT IS THEREFORE ORDERED that the ALJ's order dated April 5, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Dona Rhodes
LANE L. LATIGO, 13500 SW PACIFIC HWY, #128, TIGARD, OR, (Claimant).
SWIRE COCA-COLA, Attn: HUMAN SERVICES, DRAPER, UT, (Employer).
CAMBRIDGE INTEGRATED SERVICES, Attn: AARON EUSTERMOSER, C/O: BROADSPIRE, ATLANTA, GA, (Insurer).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: CHRISTOPHER P. AHMANN, ESQ., DENVER, CO, (For Respondents).