Opinion
W.C. No. 4-612-449.
May 12, 2010.
FINAL ORDER
The claimant and respondents-both seek "review of a supplemental order of Administrative Law Judge Friend (AL.1) dated February 1, 2010, that found the claimant had not overcome the maximum medical improvement (MMI) determination of the Division-sponsored independent medical examination (DIME) physician and denied the respondents' request for attorney fees. We dismiss part of the respondents' petition to review without prejudice. We otherwise affirm the supplemental order dated February 1, 2010.
The claimant suffered an industrial injury on February 1, 2004. His authorized treating physician Dr. Gronseth placed the claimant at MMI on May 17. 2007. The claimant underwent a DIME. The DIME physician agreed with Dr. Gronseth's MMI determination. The claimant set the matter for hearing to overcome the DIME physician's opinion on MMI and sought certain medical benefits. The claimant alleged he required treatment for his low back condition and an ear infection. The claimant developed an ear infection after pool therapy for his injury.
The ALJ determined that the claimant had not overcome the MMI determination of the DIME physician. The ALJ further determined that the respondents were not liable for surgery on the claimant's ear. The ALJ made no determination as to the liability for proposed back surgery.
I.
The claimant contends that he was not at MMI on May 17. 2007 as determined by the ALJ. The claimant argues that he was still receiving treatment for his ear infection as part of the normal progression of authorized treatment. The claimant argues that the respondents are liable for the treatment provided to him by Dr. Menachof and for the cancellation of the proposed surgical intervention on his back scheduled with Dr. Villavicencio.
The ALJ found that the claimant failed to overcome the opinion of the DIME physician that he was at MM1 on May 17, 2007. Pursuant to § 8-42-107(8)(b)(III), C.R.S, a DIME physician's finding of MM1 is binding on the parties unless overcome by clear and convincing evidence. Montoya v. Industrial Claim Appeals Office 203 P.3d 620 (Colo. App. 2008); Brownson-Rausin v. Industrial Claim Appeals Office 131 P.3d 1172 (Colo. App. 2005). "Clear and convincing" evidence has been defined as evidence which demonstrates that it is "highly probable" the DIME physician's opinion is incorrect. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo. App. 1998); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). The question whether the claimant has overcome the DIME by clear and convincing evidence is one of fact for the ALJ's determination. Metro Moving Storage. Co. v. Gussert, supra. The standard of review is whether the ALJ's findings of fact are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S: Metro Moving Storage Co. v. Gussert, supra. Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, supra. This standard of review is deferential and the scope of our review is "exceedingly narrow." Id.
The claimant first, contends that he overcame the DIME physician's opinion because the compensable ear infection was disregarded by the DIME physician. The claimant argues that he was being treated by Dr. Kempers and Dr. Hartshorn at the time of MMI identified by the DIME physician.
On the issue of MMI, the ALJ made the following findings of fact with record support. Dr. Gronseth. an authorized treating physician, placed the claimant at MMI on May 17, 2007 unless the claimant decided to pursue L4-L5 surgery. Exhibit C at 21. The DIME physician agreed with Dr. Gronseth's MMI determination and stated that the claimant had reached MMI on May 17, 2007. Exhibit A at 5.. The DIME physician noted that the claimant had chronic left ear infections that the claimant blamed on pool therapy. Exhibit A at 5. The DIME physician further noted that the claimant had a lifelong history of ear infections and Eustachian tube dysfunction. The DIME physician stated that the ear infection was not a work-related condition. Exhibit A at 5. Dr. Kempers stated that the claimant's ear infection was directly related to the injury and noted that the claimant had not had ear problems for over a year. Exhibit 1 at 6. The opinion of Dr. Kempers is credible and persuasive. The DIME physician was incorrect that the ear infections in 2006 and 2007 were not related to the industrial injury. However, the ear infection did not require any treatment to improve his condition at the time of MMI. The ear infection was stable and no further treatment was reasonably expected to improve his condition at the time he was placed at MMI.
The ALJ concluded that the claimant had failed to show that the ear infection in 2007 required any treatment at the time of MMI or at the time of the hearing. The ALJ noted that the claimant had received treatment for his ear infection after MMI and that Dr. Menachof performed a surgery on March 6. 2008. However, the ALJ determined that the surgery was related to the compensable injury, but was maintenance care.
The determination whether a particular treatment is a reasonable and necessary Grover-type medical benefit is one of fact for resolution by the ALJ. See Shipman v. Larry's Transmission Center W.C. No. 4-721-918 (August 25, 2008). Therefore, we may not disturb the ALJ's resolution of that question if it is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; City and County of Denver School District I v. Industrial Commission, 682 P.2d 513 (Colo. App. 1984).
In our view, the ALJ could reasonably infer from the record that the medical treatment received by the claimant after MMI was maintenance care. We are not persuaded that the ALJ erred in determining that the medical treatment after May 17, 2007 was Grover-type treatment designed to maintain the claimant's condition.
The claimant argues that just six days prior to May 17, 2007, the date of MMI, he saw Dr, Hartshorn, and was instructed to return in a month. We note that when the claimant saw Dr. Hartshorn on April 30, 2007 he was given a comprehensive hearing test and was to return "here for a routine follow up in one month." Exhibit 8 at 157. The claimant saw Dr. Hartshorn on May 11, 2007 and was counseled to keep the ear clean and dry and to return in one month and reconsider mastoid x-rays if his ear had more discharge. Exhibit 8 at 152. In our view, because the claimant saw Dr. Hartshorn for his ear condition does not compel the conclusion that the claimant was no longer at MMI and that the treatment he was receiving was other than maintenance medical care.
The claimant in his brief filed in support of his original petition to review argued that the surgery performed oh his ear by Dr. Menachof subsequent to the date of MMI undisputedly resolved the claimant's ear infection. The claimant, in making the argument that the MMI determination of the DIME was incorrect, does not reference reports from Mr. Menachof. Rather the claimant relies on his own testimony about the surgery and the report from Dr. Primack. Dr. Primack did note that the claimant was taken to an operating room on March 6, 2008 for a left myringotomy with placement of a ventilating tube. Exhibit 7 at 127. However, Dr. Primack in the same report stated he agreed with the DIME physician and Dr. Gronseth that the claimant was at MMI.
We recognize that surgery is often directed to curing and relieving a claimant's medical condition and not necessarily with maintaining and preventing deterioration of the claimant's condition. However, it is the purpose for which treatment is provided, not the "nature" of the treatment, which determines whether the treatment is curative or provided for maintenance reasons. Milco Construction v. Cowan, 860 P.2d 539, 542 (Colo. App. 1992); Hayward v. Unisys Corp., W.C. No. 4-230-686 (July 2, 2002), affd, Hayward v. Industrial Claim Appeals Office, (Colo. App. No. 02CA1446, January 9, 2003) (knee surgery may be curative or may be a form of Grover-style maintenance treatment designed to alleviate deterioration of the claimant's condition); Jacobson v. American Industrial Service/Steiner Corp., W.C. No. 4-487-349 (April 24, 2007); Cervantes v. Academy School District # 20 W. C. No. 4-604-873 (May 23, 2005). Under the circumstances here, we cannot say that the fact the claimant had ear surgery after the date the treating physician and the DIME physician placed the claimant at MM1 compels the conclusion that the DIME physician's opinion on MM1 was in error.
The claimant also argues that the respondents should be liable for treatment of the claimant's ear infection. On this issue, the ALJ made the following findings of fact. The claimant did receive treatment for his ear infection after MMI. Dr. Menachof performed a surgery on March 6, 2008. The surgery was related to the compensable injury and was maintenance care. However, Dr. Menachof is not an authorized provider, and the claimant had not shown that his care was justified on an emergency basis. The ALJ found that the insurer was not liable for the costs of the March 6, 2008 ear surgery,
The claimant argues that that the respondents refused to provide any medical care and treatment relative to his ear. The claimant argues that because the respondents refused to authorize a referral from Dr. Kempers for an ENT the claimant sought treatment with Dr. Menachof. The claimant contends the respondents are responsible for all treatment claimant received from Dr. Menachof pursuant to W.C. Rule of Procedure 16, 7 Code Colo. Reg. 1101-3.
The respondents are liable for authorized medical treatment that is reasonable and necessary to cure or relieve the effects of the industrial injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo. App. 1999); Sims v, Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990). "Authorization" refers to the physician's legal status to treat the injury at the respondents' expense. Popke v. Industrial Claim Appeals Office, 797 P.2d 677 (Colo. App. 1997). Under § 8-43-404(5)(a), C.R.S. the employer or insurer is afforded the right in the first instance to select a physician to treat the injury. Clark v. Avalanche Industries Inc., W. C. No. 4-471-863 (March 12, 2004). An employer is liable for medical expenses when, as part of the normal progression of authorized treatment, an authorized treating physician refers the claimant to other providers for additional services. Greager v. Industrial Commission, 701 P.2d 168 (Colo. App. 1985). A referral may be made either orally or in writing, and the question of whether a referral was made is one of fact for determination by the ALJ. City of Durango v, Dunagan, 939 P.2d 496 (Colo. App. 1997); Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo. App. 1995).
Here the claimant asserts that Dr. Kempers referred the claimant for an ENT and the claimant sought treatment with Dr. Menachof. The respondents deny that Dr. Kempers referred the claimant to an ENT. . The claimant has not directed us to any evidence supporting the referral and his post' hearing position statement does not contain such an argument. We-note' that the claimant testified that he was referred to an ENT although the testimony is vague as to who made the referral. Tr. at 17. The medical records from Dr. Kempers are extensive. We note in Dr. Kemper's reports that the claimant at least by December 26, 2006 was complaining of ear problems although he stated that he had chronic problems with his ears. Exhibit 1 at 30. In February 14, 2007, the claimant reported that his ear felt fine after not swimming due to an ear infection the month before. Exhibit 1 at 26. In April 18, 2007, Dr. Kempers noted that the claimant's ear was better, but not well. Exhibit 1 at 20. However, the April report from Dr. Kempers contains no referral to an ENT. The next report from Dr. Kempers dated May 9. 2009 merely notes that the claimant saw Dr. Hartshorn and had received antibiotics and eardrops. Exhibit 1 at 18. Again, there was no notation of a referral to Dr. Hartshorn or Dr. Menachof. In our view, the evidence does not compel the conclusion that Dr. Menachof was authorized. Therefore, we are not persuaded that the ALJ committed reversible error,
In addition, we are not persuaded by the claimant's argument related to Rule 16. The claimant merely cites Rule 16, but does not direct our attention to any particular part of the rule. Nor does the claimant explain how Rule 16 supports his position that the respondents are responsible for all treatment the claimant received from Dr. Menachof. Rule 16 is a lengthy rule, which deals with Utilization Standards. The claimant may be making reference to Rule 16 on the issues of prior authorization for sendees such as surgery and certain exceptions for emergency care. However, we are unable to tell from his brief how this would relate to the ALJ's determination that Dr. Menachof was not an authorized provider, and the claimant had not shown that his care was justified on an emergency basis. Moreover, we need not consider this argument because it was first advanced on appeal. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo. App. 2002); Kuziel v. Pet Fair, 948 P.2d 103 (Colo. App. 1997).
The claimant also argues that the respondents should be held liable for the unilateral and unjustifiable cancellation of the surgery recommended and scheduled with Dr. Villavicencio related to his back condition. We do not see that this argument was made in the claimant's post-hearing position statement on the issue of overcoming the DIME physician's determination on MMI. The ALJ found that Dr. Villavicencio saw the claimant on January 6, 2009 and recommended conservative care or a minimally invasive lumbar fusion. The ALJ further found that the claimant indicated he wished to proceed with the surgery and Dr. Villavicencio is waiting for the claimant to set up a surgical date.
We agree with the respondents that the argument was not raised by the claimant before the ALJ on the issue of MMI. Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo. App. 1987). Therefore, we shall not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo. App. 1994). We note that we later discuss the proposed surgery in another context.
II.
The respondents also seek review of the `ALJ's supplemental order. We note that although the respondents filed a brief in support of the ALJ's initial order we do not find a brief in support of respondents' petition to review the ALJ's supplemental order. Therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
The respondents first contend that the ALJ erred in failing to assess penalties against the claimant for violating prehearing administrative law judge (PALJ) Eley's February 24, 2009 order. The respondents argue that PALJ Eley ordered the claimant to provide complete answers to interrogatories within 10 days of filing a new Application for Hearing. ALJ Friend found that the claimant's answers to interrogatories did not substantially comply with PALJ Eley's order. The respondents contend that the claimant's failure to comply with the PALJ's order is a separate violation and ALJ Friend erred in not assessing penalties based on that separate violation. We disagree.
ALJ Friend made the following findings concerning penalties. The insurer established that the claimant had violated discovery orders of PALJs. The claimant knew, or should have known, that the discovery orders of a PALJ must be followed. The claimant's actions were not predicated on a rational argument based in law or fact and were not objectively reasonable. The claimant was severely sanctioned by expert witness preclusion at the August 5, 2009 hearing. The sanction of witness preclusion imposed by PALJ Eley was severe and further sanctions should be minimal. However, some sanctions must be levied. Section 8-43-304(1) C.R.S. The claimant was in violation of an order to respond to discovery for a total of eleven days. The ALJ imposed a penalty at the rate of $10 per day for a total penalty of $110.
ALJ Friend made the following findings specifically concerning the claimant's violation of PALJ's Eley's February 24. 2009 order. In his prehearing order. PALJ Eley noted that the claimant's avoidance of giving complete summaries of the claimant's witnesses' testimony violated the spirit, but not the letter, of the previous discovery order. Consequently, he did not grant respondents' request that the claimant's application for hearing should be struck with prejudice, or that the claimant should not be allowed to call any witnesses. However. PALJ Eley order that, as a discovery sanction for the later compliance with the orders of November 10. 2008 and December 18, 2008, the claimant would be required to provide the information sought in respondents' interrogatory number one within 10 days of the endorsement by claimant of any witness for hearing whether that endorsement was made on an application for hearing, a response to application for hearing, or by any other means. Finding § 38.
The claimant filed a new application for hearing on April 9, 2009. Pursuant to PALJ Eley's order dated February 24, 2009, the claimant had until April 19, 2009 to submit supplemental answers to the respondents' interrogatories. Finding § 39. The claimant did provide supplemental answer to the interrogatories, but did not provide them to respondents until April 22, 2009. The claimant violated the timing requirement of the February 24. 2009 pre-hearing order by not timely filing supplemental answers to interrogatories after he filed his application for hearing. The claimant was three days late. Finding § 40. The ALJ imposed a penalty of three days for being in violation of the February 24, 2009 pre-hearing order. Conclusion of Law § 7. As we read the respondents' petition to review, they contend that the ALJ should not only have penalized the claimant for being late but also failing to provide complete answers.
An ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. It is sufficient for the ALJ to enter findings concerning the evidence he considers dispositive of the issues, and evidence and inferences inconsistent with the order are presumed to have been rejected. Magnetic Engineering Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000). Further, the ALJ is presumed to have considered and applied the relevant legal principles. Shafer Commercial Seating, Inc. v. Industrial Claim Appeals Office, 85 P.3d 619 (Colo. App. 2003). Mere it is clear to us that the ALJ considered the claimant's action in violating the order of PALJ Eley dated February 24, 2009 and imposed an appropriate penalty for both being late and failing to provide complete answers.
The ALJ concluded that the violation of the PALJ's order was punishable by a minimal monetary award in light of the severe sanction of witness preclusion at the hearing. We perceive no reversible error in the ALJ's order.
We have previously upheld orders imposing penalties for a one-day violation and rejected the contention that a penalty for daily violations as provided in § 8-43-305 must be imposed. See Quintana v. Sunstrand, W.C. No. 3-062-456 (March 20, 2007) (the day the incorrect admission was filed only resulted in one violation and there was no continuing violation); Smith v. Reliable Roofing Co. W. C. No. 4-174-578 (May 8, 2001) (ALJ imposed penalty under § 8-43-304(1) for perjured testimony for single day and rejected claimant's argument of continuing violation); Porras v. World Service Co. Inc., W. C. No. 4-155-161 (October 12, 1995) (ALJ properly restricted penalty against insurer to single day for direct contact with Division-sponsored independent medical examination physician). See also Kennedy v. Industrial Claim Appeals. 100 P.3d 949. (Colo. App. 2004) (ALJ's order affirmed imposing a one-day penalty of S500 based on the claimant's failure to attend the DIME as required by P ALJ's order). Therefore, in our opinion it was not necessary for the ALJ to impose a daily penalty for being late in providing discover)' and a separate daily penalty for failing to provide complete answers.
Section 8-43-304(1) affords the, ALJ wide discretion to impose a penalty up to $500 for each offense.; In our view, whether to" penalize a violation of an Order as a continuing violation or as a single violation comes within the discretion afforded the ALJ in the application of § 8-43-305, C.R.S. Heupel v. Academy School District, W.C. No. 4-721-564 (August 20, 2009). We recognize that the statute provides that every day during which a person fails to comply with a lawful order or fails to perform a duty imposed by the Act "shall constitute a separate and distinct violation thereof." Section 8-43-305. C.R.S. 2009 (emphasis added). However, the ALJ may exercise his discretion in determining whether the claimant here "faii[ed] to comply" with the order on the single day or during each successive day. As we read the ALJ's order he considered the violation of the order as a whole and exercised his discretion in imposing a small monetary fine and allowing the claimant to be punished by witness exclusion.
We may not disturb the ALJ's exercise of discretion in the absence of an abuse. Pueblo School District No. 70 v. Toth, 924 P.2d-1094 (Colo. App. 1996). The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reasons as where it is not supported by the evidence or the law. Industrial Claim Appeals Office v/Or'th, 965 P.2d 1246 (Colo 1998): Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). We cannot say the ALJ abused his discretion in failing to assess a greater penalty. Industrial Claim Appeals Office v. Orth, supra; cf Williamson v. School District No. 2, 695 P.2d 1173 (Colo. App. 1984) (party challenging order as abuse of discretion must show sufficient prejudice before it is reversible error). Under these circumstances, we are unpersuaded to disturb the ALJ's order.
The respondents next contend that to the extent that ALJ Friend's supplemental order would allow the claimant to proceed with low back surgery without first being required to file a petition to reopen his claim, or would allow such low back surgery to be performed as maintenance care, ALJ Friend erred. We are not persuaded that the ALJ committed reversible error.
The ALJ made the following findings of fact regarding the proposed low back surgery. Dr. Primack examined the claimant on April 16, 2009 and stated the claimant's multi-level degenerative disk disease was not related to the industrial injury and that the claimant was not a good candidate for surgery because he was assessed as being in a distressed somatic category. Dr. Villavicencio and the claimant had not considered Dr. Primack's opinion and change in the claimant's condition since January 6, 2009, which might lead either or both of them to decide not to proceed with the recommended surgery. If Dr. Villavicencio and the claimant decide to proceed with the surgery, the issue of worsening of condition and whether or not the claimant remains at MMl as of the date of the surgery may be determined then. No determination was made by the ALJ at the time of issuance of the order as to liability for the back surgery should it be recommended. The ALJ found that liability for surgery might be examined after review of the claimant's present condition. The ALJ further ordered that issues not determined were reserved for future determination.
In essence, the respondents appear to request from us a declaration or advisory opinion on whether ALJ Friend's supplemental order would allow the claimant to proceed with low back surgery without first being required to file a petition to reopen his claim or would allow such low back surgery to be performed as maintenance care. If we find that the order does allow surgery in those situations then the respondents invite us to declare that such an order would contain reversible error. Because the order with regard to that issue was not final we dismiss a part of the petition to review without prejudice,
Under § 8-43-301(2), C.R.S., a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty." may file a petition to review. Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties, are interlocutory and not subject to review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo. App. 1989). Here no determination was made as to liability for the back surgery. Therefore, there has been no award or denial of benefits and we decline to offer an opinion involving issues that might be raised in a hypothetical future litigation. Therefore, the matter is not reviewable and we dismiss this portion of the respondents' petition to review without prejudice.
IT IS THEREFORE ORDERED that the respondents' petition to review the ALJ's supplemental order issued February I, 2010 on the issue of surgery is dismissed without prejudice. IT IS THEREFORE ORDERED that the ALJ's supplemental order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
DAVID C "HUMMER" MARCHAND, STEAMBOAT SPRINGS, CO, (Claimant)
ROUTT COUNTY, Attn: CHRIS HENSEN, STEAMBOAT SPRINGS, CO, (Employer)
CTSI, Attn: DEBBIE MCDERMOTT, DENVER, CO, (Insurer)
BELL POLLACK, P.C., Attn: ROBERT A BROVEGE, JR., ESQ., GREENWOOD VILLAGE, CO, (For Claimant)
DWORKIN, CHAMBERS, WILLIAMS, YORK, Attn: GREGORY CHAMBERS, ESQ., C/O: BENSON EVANS, DENVER, CO, (For Respondents)