Opinion
W.C. No. 3-062-779.
May 4, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge William Martinez (ALJ) dated November 9, 2006, that denied the claim for ongoing massage, physical therapy, chiropractic treatment and psychological care with Dr. Funk. We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant developed emotional and psychiatric injuries secondary to work place stress in 1989. The claimant did not suffer any physical trauma or physical injury. The claimant was awarded permanent total disability benefits in an ordered dated April 1, 1994. The 1994 order directed the respondents to furnish such medical, surgical and hospital treatment as may be reasonably needed to cure and relieve the claimant of the effects of his injury. Over the years the respondents have paid not only for extensive psychiatric and psychological care and treatment, but have also paid for a wide range of medical care and treatment to treat physical pain, discomfort and injuries. These other treatment modalities include chiropractic, massage, physical therapy and medications directed at the claimant's physical problems. At hearing the respondents asserted that they should not be required to pay for such care in the future because the care is not directly or indirectly related to the claimant's work-related injuries.
Dr. Partridge is a psychiatrist who provides medication management and supportive therapy for the claimant. Dr. Partridge prescribed ongoing chiropractic care, physical therapy and massage therapy. The ALJ found the opinions of Dr. Partridge to be weak and unpersuasive.
Dr. Gutterman testified that the claimant still needed treatment for his work-related conditions, which would include certain medications. However, Dr. Gutterman opined that counseling provided by Dr. Funk is no longer related to his work injury. Dr. Gutterman felt that the chiropractic care and massage therapy were not related to his work injury and medication for chronic pain was not appropriate for treatment of the claimant's mood disorder. Dr. Aschberger testified that there is no basis for continued treatment of the claimant's physical problems related to his neck, low back, knees and shoulders because they were not related to the original work-related injury. The ALJ found the opinion of Dr. Aschberger persuasive that the massage, the chiropractic, and the physical therapy were totally inappropriate treatments for the claimant's mental condition from the work-related injury. The respondents presented the testimony of John Hanks, D.C., who testified that the claimant had received excessive chiropractic care regardless of the cause. Dr. Hanks opined that there was no causal relationship between the claimant's need for passive therapy, chiropractic, massage and physical therapy and the work-related injuries. The ALJ found the opinions of Dr. Hanks were plausible and persuasive. The claimant presented the testimony of Dr. Jackson who provided chiropractic care to the claimant on referral by Dr. Partridge. Dr. Jackson opined that the claimant's mental state was directly affected by the level of pain the claimant experienced and that the massage therapy helped the claimant in what he does.
The ALJ, crediting the opinions of Dr. Gutterman, Dr. Aschberger and Dr. Hanks, determined that the claimant's ongoing use of passive modalities, chiropractic, massage, and physical therapy were not causally related to the claimant's industrial injury. The ALJ further found that the psychological treatment with Dr. Funk and the claimant's use of pain medication were unrelated to the workers' compensation claim. Therefore, the ALJ denied the claim to have the insurer pay for ongoing massage, chiropractic, physical therapy and psychological care with Dr. Funk.
On appeal the claimant acknowledges that there was conflicting evidence in the record regarding whether these therapies were still reasonable and related to the industrial injury. However, the claimant contents that the ALJ erred in his determination that the clamant had to prove by a preponderance of the evidence that he was entitled to this ongoing medical treatment as reasonably necessary to relieve him from the effect of the industrial injury.
In his order the ALJ determined the claimant's burden of proof was not only to establish the relatedness of the ongoing care, but to also show that the provided care and treatment was reasonable and necessary, irrespective of the cause. The ALJ further determined that the mere fact that the respondents voluntarily paid for certain medical care and treatment over an extended period of time did not prevent the respondents from challenging the reasonableness or necessity and causal relation at any point during the ongoing course of a case. The ALJ determined that the claimant continues to carry the burden of proof to establish both relatedness and reasonableness and necessity of all ongoing care in this case where medical care continues for an indefinite period of time. Findings of Fact, Conclusions of Law, and Order at 9 ¶ 6.
In the original 1994 order the claimant received a general award of post-maximum medical improvement medical treatment pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). An award of Grover medical benefits is general in nature and is subject to the respondents' subsequent right to challenge particular treatment. Thus, in Hanna v. Print Expediters Inc., 77 P.3d 863, 866 (Colo.App. 2003), the court of appeals held that once the claimant establishes the probability of a need for future treatment, the claimant is entitled to a general award of future medical benefits, subject to the employer's right to contest compensability, reasonableness, or necessity.
In general the claimant bears the burden of proof to establish the right to specific medical benefits, by a preponderance of the relevant evidence. Section 8-43-201, C.R.S. 2006; See Valley Tree Service v. Jimenez, 787 P.2d 658 (Colo.App. 1990); Upchurch v. Industrial Commission, 703 P.2d 628 (Colo.App. 1985).
Our courts have held that regardless of the filing of a admission for medical benefits or an order containing a general award of medical benefits, insurers retain the right to dispute whether the need for medical treatment was caused by the compensable injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997) (concerning GAL for medical benefits); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). This principle recognizes that even though an admission is filed the claimant bears the burden of proof to establish the right to specific medical benefits, and the mere admission that an injury occurred and treatment is needed cannot be construed as a concession that all conditions and treatments which occur after the injury were caused by the injury. Cf. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990) (filing of admission does not vitiate respondents right to litigate disputed issues on a prospective basis). Indeed, because an award of post-MMI medical benefits is general in nature it does not constitute an award of specific medical benefits. Hanna v. Print Expediters Inc., supra.
In Snyder v. Industrial Claim Appeals Office, the court held that "in a dispute over medical benefits after the filing of a general admission of liability, an employer can assert, based on subsequent medical reports, that the claimant did not establish the threshold requirement of a direct causal relationship between the on-the-job injury and the need for medical treatment." Snyder, 942 P.2d at 1339.
Therefore, unlike temporary disability benefits, the general award of Grover medical benefits does not preclude their denial of liability for specific medical benefits on grounds it is not reasonably necessary or is not causally related to the industrial injury. Rather, the respondents were free to deny liability for ongoing massage, chiropractic, physical therapy and psychological care with Dr. Funk and require the claimant to establish that the requested medical treatment was reasonably necessary to treat the industrial injury. Putman v. Putnam Associates W.C. No. 4-120-307 (August 14, 2003); Kroupa v. Mercy Medical Center, W.C. 3-113-588 (October 11, 2001); Davis v. ABC Moulding W.C. No. 3-970-332 (September 16, 1999); Murphy v. Industrial Manufacturing Installation W.C. No. 4-308-553 (April 10, 1998). Even if the respondents are obligated by admission or order to pay ongoing medical benefits after maximum medical improvement, they always remain free to challenge the cause of the need for continuing treatment and the reasonableness and necessity of specific treatments. Hanna v. Print Expediters Inc. Here, the ALJ was not persuaded that the claimant proved a causal connection between the industrial injury and the need for certain future medical benefits. Therefore, the ALJ did not err in relieving the respondents of liability for the claimant's specific ongoing medical treatment. Davis v. ABC Moulding, supra. Putman v. Putnam Associates supra; Murphy v. Industrial Manufacturing Installation, supra; Kroupa v. Mercy Medical Center, supra.
The claimant argues that by continuing to pay certain medical benefits after the general award of Grover medicals the respondents, in effect, admitted the need for treatment and that it was causally related to the injury. The claimant contends that in order to establish that previously accepted medical therapies are no longer related to the injury or are no longer reasonable and necessary, the respondents must show that something has changed. The claimant cites no authority for this proposition except for City of Durango v. Dunagan 939 P. 2d 496 (Colo.App. 1997). In City of Durango the ALJ concluded that a disc herniation diagnosed years after the original 1991 industrial injury was supported by substantial evidence. In our opinion City of Durango is not particularly instructive on the present issue.
We note that it has generally been held that payment of medical services is not in itself an admission of liability. This is based on the sound public policy that carriers should be allowed to make voluntary payments without running the risk of being held thereby to have made an irrevocable admission of liability. 7 Larson, Workers' Compensation Law, § 127.04(3). In addition the Colorado Rules of Evidence generally, govern workers' compensation proceedings. Section 8-43-210, C.R.S. 2006. C.R.E. 409 provides that evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. We can not say, as urged by the claimant, that the ALJ erred in failing to require the respondents to demonstrate that "something has changed" in order to successfully prospectively challenge medical care which they have previously paid for. IT IS THEREFORE ORDERED that the ALJ's order dated November 9, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________ John D. Baird
_________________________ Thomas Schrant
Michael S. Ashburn, Durango, CO, La Plata School District 9R, Durango, CO, Aetna Life Casualty Co. c/o St. Pauls Travelers Michelle Jensen, Minneapolis, MN, Dawes Harris PC, Robert C. Dawes, Esq., Durango CO, (For Claimant).
Blackman Levine LLC., Lawrence D. Blackman Esq., Denver, CO, (For Respondents).
St. Paul Travelers, Ms. Michelle Jensen, Minneapolis, MN.