Opinion
W.C. No. 4-484-220.
April 27, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge (ALJ) Martinez dated October 29, 2008, that denied the claimant's request for permanent partial disability benefits (PPD) beyond those admitted to and denied ongoing medical care. We affirm.
The present matter has a complicated procedural history and has been before the Panel on two previous occasions. Only the relevant portion of that history is set forth here. The claimant was injured in a compensable accident on November 13, 2000, which is the subject of W.C. No. 4-484-220 (2000 injury). This is the claim presently under review here. However, the claimant was also injured in a second compensable accident on August 21, 2002, which is the subject of W.C. claim 4-562-155 (2002 injury). The 2002 injury is only relevant here because of its procedural connection to the 2000 injury.
The claimant underwent a Division-sponsored independent medical examination (DIME) involving the 2000 injury claim. The DIME physician determined the claimant reached maximum medical improvement (MMI) for an admitted thoracic condition and provided an impairment rating for this condition. The DIME physician also found the claimant's cervical and left upper extremity conditions were not caused by the industrial injury, and therefore, did not reach the question of whether the claimant was at MMI for these conditions. In a December 17, 2002 order, ALJ Gartland found the claimant had overcome the DIME determination that the claimant had reached MMI and the DIME physician's opinion that the claimant's cervical condition and left upper-extremity problems were not caused by the 2000 injury. The claimant received additional benefits and medical treatment. The claimant eventually underwent a follow-up DIME with the same physician who opined that the claimant was at MMI and entitled to an impairment rating for her thoracic spine, but that the claimant should not receive an impairment rating for her cervical spine. On December 27, 2005, the respondents filed a final admission of liability (FAL) based upon the DIME physician's opinions. The claimant objected to the FAL and eventually the matter was heard before ALJ Martinez who determined that the claimant had not overcome the impairment opinion of the DIME physician and denied the claimant's request for ongoing medical care.
In addition, ALJ Martinez made the following determinations. ALJ Martinez, citing § 8-43-203(2)(b)(II) C.R.S. 2008, noted that filing an application for hearing on a timely basis after the filing of a FAL is a prerequisite to preserve the issues for the ALJ to hear any arguments pertaining to the issues admitted in such FAL. ALJ Martinez determined that the claimant filed an application for hearing on the 2000 claim within the period required by § 8-43-203 (2)(b)(II), but then moved to withdraw the application. PALJ Fitzgerald allowed the claimant to withdraw the application for hearing, but in order for the claimant to preserve the issues in the 2000 claim it was further ordered that the claimant would have to refile her application for hearing listing the issues for the 2000 injury within the time limits that would be required to file an application for hearing after the claimant was found to be at MMI in the 2002 injury. The claimant did not timely request a hearing against respondents in the 2000 injury and the claim closed as to the issues admitted on the December 27, 2005 FAL. Without a timely request for a hearing, and without compliance with the express conditions of PALJ Fitzgerald's Prehearing Order to preserve the issue of PPD benefits against respondents, the issue was closed. ALJ Martinez concluded that the issue of PPD as it pertained to the 2000 injury was closed and the six percent impairment of the whole person given by the DIME physician and admitted to by the respondents was final.
The claimant brings this appeal requesting that the order of ALJ Martinez be reversed on essentially three different grounds. The claimant argues that ALJ Martinez erred in determining that by failing to comply with PALJ Fitzgerald's order she failed to preserve the issues admitted to in the December 27, 2005 FAL. The claimant next contends that ALJ Martinez further erred by failing to follow the order of ALJ Gartland that had determined that her cervical condition was causally related to the 2000 injury. The claimant also contends that because ALJ Martinez erred in his determination that her cervical condition was not related to her 2000 injury, he also erred in denying ongoing medical treatment for her cervical condition.
I.
The claimant first contends that ALJ Martinez erred in holding that the claimant failed to preserve the issue of PPD. This case is unusual because after the claimant timely contested the FAL and requested a hearing she then sought and was granted permission to withdraw her application for hearing. In granting the claimant permission to withdraw her hearing application while preserving the issues therein, PALJ Fitzgerald imposed a strict condition. We note that an order entered by a prehearing administrative law judge shall be an order of the director and is binding on the parties. Section 8-43-207.5 (3) C.R.S. 2008. PALJ Fitzgerald ordered that the claimant must refile her hearing application on the same issues within the time limits that she would be required to file an application for hearing or a response to a hearing application after being found at MMI in the companion case involving the 2002 injury. ALJ Martinez concluded that without compliance with the express conditions of PALJ Fitzgerald's Prehearing Order the issues admitted to in the FAL were not preserved against respondents. We are not persuaded that ALJ Martinez erred.
ALJ Martinez made the following findings regarding compliance with PALJ Fitzgerald's order. It is undisputed that claimant did not refile her application for hearing against the respondents on the 2000 injury in a timely basis. After the FAL was filed in the 2002 injury on April 9, 2007, claimant filed an application for hearing on April 13, 2007. However, this application for hearing only listed the 2002 injury case and the only parties listed in this application for hearing were the claimant and the respondents for the 2002 case. The application for hearing only listed the August 21, 2002, date of injury and the certificate of mailing for this application for hearing shows that claimant only mailed it to the parties for the 2002 claim. In no way did this application for hearing implicate respondents for the November 11, 2000, injury, or W.C. No. 4-484-220. On May 8, 2007, the hearing was confirmed between the respondents for the 2002 claim and claimant, and such respondents filed their response to application for hearing on May 11, 2007. It was not until May 17, 2007, (over thirty days after the filing of the FAL for W.C. No. 4-562-155) that claimant sought to amend the application for hearing, and tried to endorse respondents for the 2000 claim into the application for hearing. This motion to amend was outside of the deadline set forth by PALJ Fitzgerald in her prehearing order.
On appeal, the claimant does not contend that compliance with the PALJ's order was not necessary to preserve the issue of PPD benefits; otherwise, pursuant to § 8-43-203(2)(b)(II). C.R.S. 2008 the issues admitted to in the FAL became final. The claimant also concedes that she did not refile her application for hearing within the time requirements imposed by the PALJ's order.
The claimant does not in general challenge the factual findings of ALJ Martinez. However, the claimant contends that after her attorney realized that the hearing application was incorrect, 38 days after the FAL, a motion was filed to amend the hearing application. The claimant argues that submitted concurrently with the motion was the amended application, which included both sets of respondents and contained a complete certificate of mailing. The claimant contends, without citation of authority that since ALJ Martinez issued an order granting the claimant's motion to amend the application for hearing the application was effective as of the date of the initial application for hearing. We are not persuaded that the amended application was effective as of the date of the initial application for hearing.
We do not read ALJ Martinez's order of June 6, 2007, which granted the claimant's motion to amend her application for hearing to add the respondents for the 2000 claim, to have been entered nunc pro tunc as of the date of the original application for hearing. Exhibit D at 61. In any event, it is clear that ALJ Martinez in reviewing his own order determined that he did not intend that by granting the claimant's motion to amend the respondents would be barred from raising the issue that the claim was closed for failure to comply with the PALJ's order. ALJ Martinez characterized the order granting the amendment as merely a prehearing ruling. See Findings of Fact § 14 at 5.
Moreover, while it is within the discretion of an ALJ to make a determination whether it is proper to allow amendment of an application for hearing to add parties, it should be noted that mere amendment of pleadings cannot accomplish ends which are inconsistent with statutory procedures. See Trustees of Mortg. Trust of America v. District Court In and For Routt 621 P.2d 310 (Colo. 1980). The courts have determined that compliance with the time requirements of 8-43-203(2)(b)(II), C.R.S. 2008 are mandatory. In our view, these time requirements of 8-43-203(2)(b)(II), cannot be altered by mere amendment of a pleading to accomplish a filing requirement that was not timely made in the first place.
In general, the claimant has the right to contest an FAL, but the case will be automatically closed as to the issues admitted in the FAL if the claimant does not, within 30 days after the date of the final admission, contest the final admission in writing and request a hearing on any disputed issues. Section 8-43-203(2)(b)(II); Peregoy v. Industrial Claim Appeals Office, 87 P.3d 261, 264 (Colo.App. 2004) (a claimant has 30 days after the date the employer files an FAL to file an Application for a hearing under § 8-43-203(2)(b)(II)). The requirements of § 8-43-203(2)(b)(II) are part of an overall statutory scheme designed to ensure the prompt payment of benefits without the necessity of litigation in cases that do not present a legitimate controversy. See Peregoy v. Industrial Claim Appeals Office, supra. The provisions of this statute are clear and compliance has been viewed by the courts as jurisdictional. See Leprino Foods Co. v. Industrial Claim Appeals Office, 134 P.3d 475 (Colo.App. 2005).
To the extent that the claimant may generally be relying on the doctrine of relation back of amendments it does not apply to a situation, as here, where there has been a failure to abide by the applicable statute of limitations. See C.R. C.P.15(c); Trigg v. State Farm Mut. Auto. Ins. Co., 129 P.3d 1099 (Colo.App. 2005); Brown v. Teitelbaum, 830 P.2d 1081 (Colo.App. 1991) (amended complaint did not relate back to initial complaint where the new defendants did not receive notice until after the expiration of the statute of limitations).
Once a case has automatically closed by operation of the statute, "the issues resolved by the FAL are not subject to further litigation unless they are reopened pursuant to § 8-43-303, [C.R.S. 2008]." Berg v. Industrial Claim Appeals Office, 128 P.3d 270, 272 (Colo.App. 2005). Therefore, in our opinion ALJ Martinez did not error in determining that the case was closed by operation of the statute following the failure of the claimant to timely file an application for a hearing within the 30 days given to her by the PALJ's order.
We note that the claimant's attorney asserts that he actually provided a copy of the hearing application to the respondents in this case although claimant failed to so state in the certificate of mailing. However, parties are expected to submit their evidence at the time of the hearing. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158 (1935). The representations of claimant's attorney made in the brief in support of the petition to review, or in an earlier pleading, may not substitute for that which must appear of record. Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987). Therefore, we may not consider this contention.
The claimant further argues, again without citation of authority, that at the time the PALJ entered her order the claims were consolidated and so any action taken in one case was taken in both cases. Therefore, the claimant argues that when she filed her application for hearing it applied to all parties on both claims. The claimant notes that the 2000 injury claim had in the past been consolidated with the 2002 injury claim for purposes of hearing. Therefore, the claimant argues that her application for hearing on the 2002 injury applied to all parties even if through an oversight the application for hearing did not list the 2000 injury claim. We disagree. For example, in a case where the time periods for filing appeals in a consolidated case were different the court of appeals held that since the consolidated actions retained their separate identities, each action was governed by its own prescribed time limit for initiating appeals. See Denver v. Board of Assessment Appeals, 748 P.2d 1306 (Colo.App. 1987)
Here the express conditions of PALJ Fitzgerald's order required the claimant to refile her hearing application on the 2000 injury claim on the same issues within the time limits that she would be required to file a hearing application for hearing after being found at MMI in the 2002 injury claim. ALJ Martinez found that the claimant did not comply with the conditions of PALJ Fitzgerald's Prehearing Order. We are not persuaded that the consolidation of the claims excused the claimant's failure to comply with the PALJ's order. Because we conclude that ALJ Martinez did not error in holding that the claimant failed to preserve the issues admitted to in the FAL, it is unnecessary to address the issue of whether ALJ Gartland's 2002 order precluded re-litigation of whether the claimant's cervical condition was related to the 2000 injury.
II.
At the time of the hearing, the claimant requested continued chiropractic care. The claimant contends that ALJ Martinez erred in determining that the claimant is not entitled to continuing medical care. The claimant argues that this finding is not supported by substantial evidence and further that the determination is not supported by applicable law. The claimant requests that the matter be remanded with directions to consider whether the chiropractic treatment the claimant is receiving is reasonable and necessary for her cervical condition as set forth in the Medical Treatment Guidelines (Guidelines).
The claimant concedes that she bears the burden of establishing entitlement to medical treatment. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Here, it was undisputed that the claimant was at MMI and the ongoing medical benefits must be pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The burden of proof was on the claimant to establish entitlement to Grover medical benefits. Grover v. Industrial Commission, supra; Cordova v. Foundation Builders Inc., W. C. No. 4-296-404 (April 20, 2001). In order to be entitled to receive Grover medical benefits the claimant must present, at the time permanent disability benefits are determined, substantial evidence that future medical treatment is or will be reasonably necessary to relieve the claimant from the effects of the injury or to prevent deterioration of the claimant's condition. See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003); Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). The question of whether the claimant met the burden of proof to establish an entitlement to ongoing medical benefits is one of fact for determination by the ALJ. Holly Nursing Care Center v. Industrial Claim Appeals Office, 992 P.2d 701 (Colo.App. 1999); Renzelman v. Falcon School District, W. C. No. 4-508-925 (August 4, 2003).
We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, ALJ Martinez found that the DIME physician persuasively opined that the claimant did not need ongoing medical treatment to maintain her at MMI. ALJ Martinez, with record support, found that the DIME physician stated that there were no objective findings on examination to substantiate her symptoms and that in the absence of objective findings to substantiate her subjective complaints, psychosocial factors have to be considered as major factors. Exhibit C at 48. We note that the DIME physician found that the claimant complained of "glove anesthesia." Exhibit C at 46.
ALJ Martinez credited the opinion of Dr. Lesnak that the claimant does not need ongoing medical treatment. ALJ Martinez found with record support that Dr. Lesnak had opined that the claimant required no further diagnostic testing or interventional treatment whatsoever. Exhibit A at 15. ALJ Martinez found that Dr. Lesnak further opined that the claimant had absolutely no objective findings to support her ongoing subjective complaint and given her diffuse pain behaviors and nonphysiologic findings, one cannot rely on her subjective complaints, especially when recommending further treatment or interventions. Exhibit A at 15. Dr. Lesnak noted that unfortunately, this is a case of severe over-utilization of passive modalities such as chiropractic treatments. Exhibit A at 15. In our view, the opinions of the DIME physician and the opinions of Dr. Lesnak constitute substantial evidence in support of the ALJ Martinez's determinations.
The claimant contends that ALJ Martinez erred by failing to consider the medical treatment in light of the Guidelines. The claimant argues that ALJ Martinez did not mention the Guidelines and there was no indication that he considered whether the claimant's treatment met the standards of the Guidelines.
The Guidelines are contained in W.C. Rule of Procedure 17-2(A), 7 Code Colo. Regs. 1101-3, and provide that health care providers shall use the Guidelines adopted by the Division of Workers' Compensation (Division). The Division's Guidelines were established by the Director pursuant to an express grant of statutory authority. See § 8-42-101(3.5)(a)(II), C.R.S. 2008. In Hall v. Industrial Claim Appeals Office, 74 P.3d 459 (Colo.App. 2003) the court noted that the Guidelines are to be used by health care practitioners when furnishing medical aid under the Workers' Compensation Act. See Section 8-42-101(3)(b), C.R.S. 2008.
The Guidelines are regarded as accepted professional standards for care under the Workers' Compensation Act. Rook v. Industrial Claim Appeals Office, 111 P.3d 549 (Colo.App. 2005). We acknowledge that it is appropriate for an ALJ to consider the Guidelines in deciding whether a certain medical treatment is reasonable and necessary for the claimant's condition. Deets v. Multimedia Audio Visual, W. C. No. 4-327-591 (March 18, 2005); see Eldi v. Montgomery Ward W. C. No. 3-757-021 (October 30, 1998) (medical treatment guidelines are a reasonable source for identifying the diagnostic criteria). However, the claimant has not cited any authority, nor are we aware of any, which requires an ALJ to award or deny medical benefits based on the Guidelines.
Further, although ALJ Martinez did not mention the Guidelines, an ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning that evidence which he considers dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Maes v. Federal Fruit Produce, W. C. Nos. 4-246-932, 4-409-427, 4-413-589, 4-416-013 (May 10, 2001). Further, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. Here, there is evidence in the record that can be viewed as establishing that the claimant was not in need of continued chiropractic treatment under the Guidelines. Dr. Lesnak opined, even if the opinion may have been weakened on cross-examination, that the chiropractic treatment the claimant received was grossly outside of the medical treatment guidelines. Exhibit A at 15; Lesnak Depo. at 31-32.
The claimant argues that in determining whether the claimant was entitled to ongoing medical treatment it is not certain whether ALJ Martinez made this decision independent of his decision that the claimant's cervical condition was not causally related to the 2000 claim. However, here the DIME physician opined that the claimant did not experience anything more than six percent permanent partial physical impairment of the whole person resulting from thoracic spine pathology and was at MMI for that condition. Exhibit C at 48. The respondents filed a FAL based on that opinion. It was the claimant's obligation to overcome that opinion and the claimant might have been able to do so by arguing the effect of the order entered by ALJ Gartland. Nevertheless, we have determined that ALJ Martinez did not error in determining that the claimant had failed to preserve the issue of overcoming the opinions of the DIME physician and that the FAL based on the opinion has become final and binding. Therefore, we perceive no reason to remand the case.
IT IS THEREFORE ORDERED that ALJ Martinez's order issued October 29, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
FRANCES THOMAS, 2221 RIDGE CREST DR, FARMINGTON, NM, (Claimant).
FOUR CORNERS HEALTH CARE, C/O: d/b/a FOUR CORNERS HEALTH CARE, DURANGO, CO, (Employer).
AMERICAN HOME ASSURANCE CO, Attn: AIG CLAIM SERVICES, C/O: SUSAN FILIPIAK/DAWN CHAMBERS, SHAWNEE MISSION, KS, (Insurer).
DAWES AND HARRISS PC, Attn: ROBERT C DAWES, ESQ., DURANGO, CO, (For Claimant).
TREECE ALFREY MUSAT BOSWORTH, PC, Attn: MATTHEW C HAILEY, ESQ., DENVER, CO, (For Respondents).