Opinion
W.C. No. 4-342-812
September 22, 1998
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ), insofar as the ALJ awarded medical benefits and determined average weekly wage. We modify the award of medical benefits, and as modified, affirm.
The ALJ found the claimant suffered compensable injuries on May 5, 1997, while employed as a care giver for the respondent's wife. Dr. Gingery treated the claimant for complaints of pain in her jaw, neck, shoulders, upper back, head and both knees. Dr. Gingery referred the claimant to Paul Sarnstrom (Sarnstrom) for massage therapy and referred the claimant to Dr. Schoo for an evaluation of her knee injury. Dr. Gingery later referred the claimant to Dr. Huene for a second opinion concerning the knee injury. However, the respondent denied liability for Dr. Huene's evaluation on grounds that a second opinion was not reasonable and necessary.
The ALJ found that the treatment prescribed by Dr. Gingery is reasonable and necessary to cure and relieve the effects of the industrial injury. Therefore, the ALJ awarded medical benefits including massage therapy, treatment for depression and an evaluation by Dr. Huene. In so doing, the ALJ rejected the respondent's argument that he is not liable for Sarnstrom's therapy until Sarnstrom complies with the billing requirements of the Rules of Procedure, Part XVI, 7 Code Colo. Reg. 1101-3 at p. 70. Expressly relying on Riley Family Trust v. Hood, 874 P.2d 503 (Colo.App. 1994), the ALJ determined that Rule XVI is void insofar as it restricts the claimant's ability to obtain massage therapy to treat the industrial injury. Therefore, the ALJ concluded that the respondent is liable for the massage therapy regardless of Sarnstrom's compliance with Rule XVI(K). The ALJ also determined average weekly wage, and awarded temporary disability benefits.
I.
The respondent first contends the ALJ miscalculated the claimant's average weekly wage. We disagree.
Section 8-42-102(2)(d), C.R.S. 1998, provides that where the claimant is paid by the hour, the weekly wage is determined by multiplying the hourly rate by the number of hours per day the claimant worked each week. However, § 8-42-102(3), C.R.S. 1998, provides that:
"Where the foregoing methods of computing the average weekly wage of the employee . . . or for any other reason, will not fairly compute the average weekly wage, the division, in each particular case, may compute the average weekly wage of said employee in such other manner and by such other method as will, in the opinion of the director based upon the facts presented, fairly determine such employee's average weekly wage." (Emphasis added).
The legal standard on review of an alleged abused of discretion is whether the ALJ's determination "exceeds the bounds of reason." Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). Insofar as the ALJ's determination is supported by substantial evidence in the record, we cannot say that his calculations exceed the bounds of reason.
From conflicting evidence the ALJ found that the claimant was hired at the rate of $7.50 per hour and paid $57.50 for each overnight shift. However, the respondent's hand written earnings records reflect that the claimant's weekly schedule varied.
Exercising his discretion under § 8-42-102(3), the ALJ calculated the claimant's average weekly wage using her total earnings from January 1, 1997 to May 5, 1997. The hand written wage records submitted by the respondent indicate the claimant earned $10,567 between January 1, 1997 and the date of injury. (Respondent's hearing exhibit 1). Therefore, the ALJ calculated the claimant's average weekly wage as $591.75 ($10,567 divided by 125 days x 7 days). Because the ALJ's calculations are supported by substantial evidence in the respondent's wage records, we cannot say the ALJ's determination exceeds the bounds of reason. Therefore, we may not disturb the ALJ's calculation of average weekly wage.
Further, the respondent's wage record indicates that the claimant "earned" $10,567 between January 1, 1997 and May 5, 1997. Therefore, we reject the respondent's argument that the ALJ erroneously based his determination on wages the claimant "earned" in 1996 and received in 1997.
II.
Next, the respondent contends the ALJ erred in holding him responsible for treatment of the claimant's depression. The respondent contends that the claimant's depression pre-dated the industrial injury, and argues that there is insufficient evidence to support a finding that the industrial injury aggravated the depression. Again we disagree.
Under § 8-42-101(1)(a), C.R.S. 1998, the respondent is liable for medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). It is the claimant's burden to prove a causal connection between the industrial injury and the need for medical treatment. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). However, causation may be established by plausible inferences drawn from circumstantial evidence. Peter Kiewit Sons' Co. v. Industrial Commission, 124 Colo. 217, 236 P.2d 296 (1951).
Dr. Gingery treated the claimant for several injuries which occurred prior to the 1997 industrial injury. However, Dr. Gingery opined that the 1997 fall "greatly aggravated" the claimant's pre-existing condition. (Dr. Gingery, September 8, 1997). He also stated that the claimant was off all medication by May 5, 1997, and at the time of the injury she was only symptomatic from carpal tunnel syndrome. (Gingery depo. December 26, 1997, pp. 77, 80). The claimant testified that she had not treated for depression since October 1996 (Tr. p. 15). Based upon this evidence, the ALJ could reasonably infer that the depression diagnosed by Dr. Gingery in July 1997 was the result of the industrial injury. See Peter Kiewit Sons Co v. Industrial Commission, supra.
III.
We also reject the respondent's argument that the ALJ erroneously required him to pay for an evaluation by Dr. Huene.
The ALJ found that:
"[T]he Claimant has proven by a preponderance of the evidence that it [sic] reasonable and necessary for her to obtain a second opinion regarding treatment of her knee injury, and that there is a reasonable possibility that additional treatment will improve the Claimant's knee condition."
The respondent contends that the ALJ's findings must be based upon a reasonable "probabilities" not reasonable "possibilities." Therefore, they contend that the ALJ's findings do not support the order for an evaluation by Dr. Huene. We are not persuaded.
We have previously stated that the Workers' Compensation Act does not draw a distinction between "active treatment" and diagnostic evaluations with regard to the employer's obligation to provide medical treatment reasonably necessary to "cure or relieve" the effects of the injury. Brock v. Jack Brach Sons Trucking, W.C. No. 3-107-451, (December 15, 1995); Atwood v. Western Slope Industries, W.C. No. 3-069-135, (November 28, 1994) (medical monitoring compensable). To the contrary, the respondents may be liable for treatment reasonably necessary to ascertain the extent of the industrial injury. See Merriman v. Industrial Commission, 210 P.2d 448 (Colo. 1949).
In this case, Dr. Schoo found no objective evidence to support the claimant's subjective complaints of knee pain. Further he was unable to determine any relationship between the claimant's subjective symptoms of patellofemoral pain and the industrial injury. Therefore, he did not recommend further treatment. Although Dr. Gingery testified that he generally relies on Dr. Schoo's opinions, he stated that CT scan results contain objective evidence supporting the claimant's complaints. Dr. Gingery opined that the existence of the objective evidence is a reasonable basis for the claimant to obtain a second opinion by Dr. Huene to determine if the claimant is at MMI for that injury. (Dr. Gingery depo. December 26, 1997, pp. 60-61, 71). However, he was unsure whether further treatment such as knee bracing would improve the claimant's condition. (Dr. Gingery depo. December 26, 1997 p. 70).
As we read the ALJ's order, he relied on Dr. Gingery's opinions to find that there is a reasonable probability the claimant's knee injury should be reexamined by Dr. Huene to determine the extent of the injury and whether additional treatment is reasonably necessary. However, the ALJ did not purport to adjudicate the reasonableness of any particular treatment Dr. Huene may recommend. Therefore, the ALJ's findings of fact support the order for an evaluation by Dr. Huene, regardless of whether the existing record is sufficient to find a reasonable probability that a particular medical treatment will improve the claimant's condition.
Alternatively, the respondent contends that on October 28, 1997, Dr. Gingery placed the claimant at maximum medical improvement (MMI) for the knee injury. Relying on Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the respondent contends that the claimant's request for a second opinion is an implicit challenge to Dr. Gingery's finding of MMI, and that the ALJ lacked jurisdiction to hear the request in the absence of an independent medical examination (IME) under the provisions of § 8-42-107(8)(b), C.R.S. 1997 [amended in 1998].
The respondent's arguments notwithstanding, the record amply supports the ALJ's finding that Dr. Gingery's opinion on MMI was equivocal. (Tr. December 26, 1997, pp. 44, 52, 67, 69, 89, 92, 94, 99). The ALJ resolved Dr. Gingery's conflicting statements against the respondent, and determined that Dr. Gingery has not placed the claimant at MMI. See (Conclusions of Law 5; Summary Order February 9, 1998, Finding of Fact 4). Consequently, the claimant's request for a second opinion does not implicate the IME provisions in § 8-42-107(8)(b). See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996) (IME not prerequisite to ALJ's resolution of conflicting opinions issued by treating physician on MMI).
IV.
Finally, the respondent contends the ALJ erroneously ordered him to pay for massage therapy. We agree in part.
Rule XVI(A) states that all providers shall be subject to the medical fee schedule in billing for the treatment of work-related injuries. Rule XVI(H) requires the provider to maintain treatment records. Rule XVI(G) requires that billing for the treatment of work-related injuries containing itemized billing codes. Rule XVI(G)(4)(a) allows the insurer to contest payment for a particular treatment until the provider complies with the billing form requirements. Rule XVI(K) describes the written notice which must be sent by the insurer where payment is contested. Because Rule XVI(K) pertains to the duties of the insurer and not the provider, the ALJ erred insofar as he found that Sarnstrom was required to comply with Rule XVI(K).
In any case, the court in Riley Family Trust v. Hood, supra, held that the medical fee schedule was promulgated by the Director of the Division of Workers' Compensation (Director), pursuant to the provisions of § 8-42-101(3)(a)(I), C.R.S. 1998, to limit the cost of medical treatment for work-related injuries by establishing a "relative value" for each "unit" of medical service and by prohibiting a provider from charging more than the fee fixed by the schedule when treating a work-related injury. However, the court held that § 8-42-101(3) does not authorize the Director to limit the "nature" of treatment to be given so long as such treatment is reasonable and necessary within the meaning of the Workers' Compensation Act, Riley Family Trust v. Hood, 874 P.2d at 505. Therefore, the court held that the medical fee schedule is void insofar as it purports to place a restriction on obtaining massage therapy, "rather than upon the fees to be charged for such treatment." Id. at 505.
The issue in Riley was whether an insurer was liable for massage therapy which was not supervised by a physician or registered therapist as required by the medical fee schedule. The Riley court held that where massage therapy is prescribed by an authorized treating physician and is found to be reasonable and necessary, the insurer cannot refuse to pay for the therapy, regardless of the fact that the treatment was not performed under the supervision of a physician or registered therapist.
Here, the respondent does not dispute that massage therapy was prescribed by the claimant's authorized treating physician. Neither does he contest the ALJ's finding that Sarnstrom's massage therapy was reasonable and necessary to cure and relieve the effects of the industrial injury. Under these circumstances, Riley compels the conclusion that the respondent is liable for the massage therapy.
However, nothing in Riley suggests that a respondent may be held liable for massage therapy fees in excess of the limits established by the medical fee schedule. In fact, Riley did not address the amount of the respondent's liability for massage therapy. Therefore, the ALJ erred insofar as he purported to require the respondent to pay Sarnstrom for massage therapy fees in excess of the maximum amount provided by the medical fee schedule.
Furthermore, one obvious purpose of the billing requirements of the medical fee schedule is to ensure that the provider submits written documentation of the "units" of service to be paid by the respondent. Therefore, we conclude that the respondent's liability for massage therapy is necessarily dependent on the provider's compliance with the billing requirements of Rule XVI. See Rule XVI(A), 7 Code Colo. Reg. 1101-3 at 70 (requiring "all" providers and payers to comply medical fee schedule).
Moreover, the ALJ did not and could not determine the reasonableness of any future therapy. Consequently, the respondent remains free to contest payment for any massage therapy after the date of the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 16, 1998, is modified to provide that the respondent shall reimburse the claimant for medical expenses incurred for massage therapy, up to the date of the ALJ's order, in accordance with all provisions of the medical fee schedule. As modified, the ALJ's order 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed September 22, 1998 to the following parties:
Dawn Burwell, 68169 Sunshine Road, Montrose, CO 81401
Mr. Rene Tegtmeyer, 85 Woodchuck Place, Ridgway, CO 81432
M. Frances McCracken, Esq., 562 White Ave., Grand Junction, CO 81501-2690 (For the Respondent)
Michael S. Kocel, Esq., 104 S. Cascade, Ste. 200, Colorado Springs, CO 80903 (For Claimant)
BY: _______________________