Opinion
W.C. Nos. 4-592-503 4-608-960.
November 13, 2007.
ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated June 14, 2007, that denied the claimant's request for an award of medical benefits. We affirm the ALJ's order and remand for entry of an order concerning an issue not addressed by the ALJ.
The ALJ's pertinent findings of fact are as follows. The claimant sustained an admitted injury to her cervical spine and right shoulder while working for the employer on February 21, 2004. The claimant has been examined and treated by a number of physicians. The claimant was referred to Dr. Fox for evaluation and a second surgical opinion in February 2005. Dr. Fox obtained a medical history from the claimant and noted she was taking significant quantities of pain medication. At that time, Dr. Fox expressed the opinion that it was unclear how much improvement the claimant would have with any type of surgical treatment for her cervical spine condition. Dr. Fox reviewed the claimant's case with other treating physicians and in March 2005 recommended against surgery and told the claimant, he believed it unlikely that surgery would result in much pain improvement. In May 2005, Dr. Fox reviewed an MRI scan taken on May 19, 2005 and then recommended surgical intervention. The cervical pathology revealed by the May 19, 2005, MRI scan was not proximately caused, aggravated, or worsened by the mechanism of injury from the incident on February 21, 2004. The claimant was unreliable and lacking credibility when reporting symptoms to obtain medical care. The weight of the medical evidence showed that the claimant had developed cervical arthritis and degenerative changes that pre-existed the incident on February 21, 2004. The claimant underwent a Division-sponsored independent medical examination (DIME) and the claimant was determined not to have reached maximum medical improvement (MMI). Dr. Gerber, the DIME physician, determined that the February 21, 2004 incident caused cervical fibromyositis and not cervical degenerative disc disease or arthritis.
The ALJ credited other medical opinions consistent with Dr. Gerber's determination and found that the February 21, 2004 incident neither caused, worsened, nor aggravated the claimant's underlying and preexisting cervical arthritis. The ALJ concluded that the claimant failed to show it more probably true than not that the surgery recommended by Dr. Fox was reasonable and necessary to cure and relieve the effects of her injury. Therefore, the ALJ denied the claimant's request for an award of medical benefits to cover the cervical fusion surgery recommended by Dr. Fox.
I.
On appeal, the claimant first contends that the ALJ violated the claimant's right to due process. The claimant argues the ALJ erred in ruling that there was no persuasive causal connection between the cervical pathology revealed by the claimant's MRI scan and the claimant's February 21, 2004 injury because the issues of relatedness and/or compensability were not issues endorsed for hearing.
The claimant, citing Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990), contends he was denied due process. The fundamental requisites of due process are notice and the opportunity to be heard by an impartial tribunal. See Wecker v. TBL Excavating, Inc. 908 P.2d 1186(Colo.App. 1995); Hendricks v. Industrial Claim Appeals Office, supra. It is a flexible standard calling for such procedural protections as the particular situation demands. Sears, Roebuck Co. v. Baca, 682 P.2d 11 (Colo. 1984). No particular or specific procedure is mandated by due process considerations so long as the basic opportunity for a hearing and judicial review are present. Lamm v. Barber, 192 Colo. 511, 565 P.2d 538 (1977).
The ALJ found that Dr. Fox recommended against surgery in March 2005. Because of the claimant's complaints of worsening neck symptoms, Dr. Fox ordered a repeat cervical MRI scan, which the claimant underwent on May 19, 2005. Dr. Fox reviewed the MRI on May 23, 2005 and expressed the opinion that the MRI revealed a significant change at the C5-6 level, but improved findings at the C6-7 level. Dr. Fox at this point recommended surgical intervention. The ALJ found that the claimant failed to show it more probably true than not that the cervical pathology revealed on the May 19, 2005 MRI scan was proximately caused, aggravated, or worsened by the mechanism of the injury from the incident on February 21, 2004. Findings of Fact, Conclusions of Law, and Order at 15 ¶ 42.
The claimant cites Shoaf v. Manor Care Inc., W.C. No. 4-300-993 (December 20, 1999). In Shoaf the ALJ expressly stated at the commencement of the hearing he would not rule on the "compensability of the cervical pathology." Instead, the ALJ indicated that resolution of the issue would be reserved for a future hearing. Nevertheless, the ALJ's order expressly determined the compensability of the cervical condition adversely to the claimant. Consequently, we concluded the claimant was denied due process of law because she was not apprised prior to commencement of the hearing that the ALJ intended to consider the cause of the cervical condition. Here the transcript of the hearing reveals no explicit representation by the ALJ that the issues of relatedness and/or compensability would not be considered. Instead the record reveals that that the claimant had notice of the issues to be adjudicated.
The hearing was held pursuant to the claimant's application for a hearing, which is a form promulgated by the Division and which contains issues to be considered at the hearing that may be "checked." The claimant's application for hearing indicated that "medical benefits" was such an issue to be tried at the hearing, and it further identified "reasonably necessary" as an issue. The response to application for hearing identified the same issues. It is certainly true that the reasonableness and necessity of medical treatment might be challenged without implicating the causal connection between the need for the treatment and the compensable injury. However, it is also true that a showing that the compensable injury caused the need for treatment is a threshold prerequisite to the further showing that treatment is reasonable and necessary. In our view, the general endorsement of the issue of "medical benefits" might reasonably include a number of other issues, including "relatedness." Bekkouche v. Riviera Electric W.C. No. 4-514-998 (May 10, 2007),
In addition, the respondents took the deposition of Dr. Horrocks. Dr. Horrock's testified, without objection, that the abnormalities seen on the MRI were not related to the February 21, 2004 incident. Horrocks Depo. at 5-6. Dr. Fox was also questioned, without objection, regarding causal connection between the work-related injury and the disk problems seen on the MRI. Fox Depo. at 21. Further, claimant's counsel herself, question Dr. Fox regarding whether the abnormalities seen on the MRI were the result of the natural progression of the claimant's injury or some intervening event. Fox Depo. at 10.
In the claimant's position statement, filed before the order under appeal was entered, the claimant argued that Dr. Fox had testified the claimant's pathology presented at C5-6 and C6-7 was "related" to her work injury. Claimant's position statement ¶ 46 at 8. Further the claimant argued that the surgery recommended by Dr. Fox was "reasonable, necessary and related" to the claimant's injury. Claimant's position statement ¶ 2 at 9. Hence, even assuming that the respondents failed to provide notice of the issue, the claimant waived any objection to the ALJ's adjudication of it. See Anders v. Industrial Commission, 649 P.2d 732 (Colo.App. 1982).
II.
The claimant next contends that the ALJ lacked subject matter jurisdiction when ruling the respondents were not responsible for covering the cervical fusion surgery recommended by Dr. Fox. The claimant argues that after the original DIME the respondents subsequently scheduled a follow up DIME to be held on May 21, 2007. The claimant argues because a DIME was pending prior to the issuance of the ALJ's decision and the ALJ lacked subject matter jurisdiction to issue an order regarding the proposed cervical fusion surgery.
The respondents, in a related argument, contend that the issue presently on appeal, is now moot because the claimant was placed at MMI by the DIME physician subsequent to the hearing. The respondents attached a copy of what appears to be a report from Dr. Gerber, the DIME physician, which places the claimant at MMI. The respondents contend that the claimant has filed an application for hearing to overcome the DIME and a hearing on the application is pending. The respondents argue that even if the claimant is unsuccessful in overcoming the DIME physician's opinion she will not be entitled to any additional "curative treatment" as she will be at MMI.
The opinions of a DIME physician have only been given presumptive effect when expressly required by the statute. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo.App. 2000) (DIME opinion concerning causation need not be overcome by clear and convincing evidence where dispute involved the "threshold requirement" that the claimant establish a compensable injury); Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) (DIME determination of MMI did not preclude change of physician order where only " Grover" medical benefits were sought). Thus, the DIME proceedings in this case would prevent the ALJ from adjudicating the issues of MMI or medical impairment ratings independently from those proceedings. See Stahl v. Durango Fire and Rescue Auth., W.C. No. 4-560-612 (October 18, 2006) (ALJ without jurisdiction to award permanent partial disability benefits pending respondents' compliance with statutory procedure for DIME).
However, in our opinion, the request for a follow up DIME report did not deprive the ALJ of subject matter jurisdiction to determine the claimant's entitlement to a particular medical treatment. See § 8-42-101(1)(a), C.R.S. 2007 (employer must furnish medical treatment reasonably needed to cure and relieve injured employee from effects of injury); Moore v. American Furniture Warehouse, W.C. No. 4-665-024, (June 27, 2007); see also, Briggs v. Willard Plumbing Heating Inc., W.C. 4-526-000 (March 9, 2007); Martinez v. K-Mart Corporation, W.C. 4-164-054 (September 19, 2005) (failure to overcome DIME report by clear and convincing evidence does not preclude an award of Grover-type medical benefits under the preponderance standard); Kingery-Stubbs v. Choice Hotels International, W.C. No. 4-499-627 (January 20, 2006) (same).
III.
The claimant contends the ALJ abused his discretion in admitting medical records into evidence, which had been disclosed less than 20 days prior to hearing. The claimant specifically contends the ALJ abused his discretion to control the course of the hearing and make evidentiary rulings by permitting a medical record from Dr. Horrocks dated December 7, 2006 that was disclosed only four working days before the hearing into evidence.
The claimant objected at the time of the hearing to the medical report stating that she had just received a copy of the report on January 2, 2006, just before the January 8, 2006 hearing. Tr. at 3-4. Counsel for the respondents stated that she had also just received those exhibits on January 2, 2006. Tr. at 4. The ALJ before deciding whether to admit the exhibit first established that the report was from a treating physician and then asked counsel for the claimant what prejudice would occur to the claimant if the exhibit was admitted. The claimant stated she needed time to find witnesses that would permit the claimant to rebut information contained in the exhibit. The ALJ expressed willingness to give the claimant some remedy that would allow her to rebut the opinions of Dr. Horrocks and the claimant ask to be allowed to have Dr. Butler testify specifically contrary to the conclusions that Dr. Horrocks reached. Dr. Butler did testify at the hearing although she was allowed to testify only as a lay witness. Tr. at 70 73. In light of the restriction of Dr. Butler's testimony, the ALJ then allowed the claimant to offer another method for her to rebut the opinions of Dr. Horrocks. The claimant, at her suggestion, was allowed to depose Dr. Fox. Tr. at 70. The deposition of Dr. Horrocks was also allowed to be taken by the respondents following the hearing and the claimant was allowed to cross-examine Dr. Horrocks.
At the time of the objection to Dr. Horrock's report the ALJ did not specifically go through the factors listed in the Office of Administrative Courts Chief Judge "Directive 2" (Directive), which relates to objections to documentary evidence based on late submission and unfair surprise. The claimant has not argued that the first factor of the Directive on the requirements of any applicable statute or rule pertaining to the exchange or admission of the documentary evidence is relevant to the present case.
On the second factor of the Directive, whether the proponent of the evidence used due diligence, it was undisputed that the Dr. Horrocks was a treating physician, not an expert selected to perform an independent medical examination by the respondents, and that the respondents had received the report on the same day the claimant received the report. The ALJ was aware that the respondents had not complied with the third factor listed in the Directive which provides that disclosure of documentary exhibits to the opposing party at least twenty days prior to hearing shall presumptively constitute reasonable diligence in obtaining and disclosing evidence. The ALJ made no specific finding regarding the fourth factor of the Directive, on whether the evidence has the potential to be outcome determinative or of the fifth factor of the Directive, which relates to the potential cost and inconvenience to the opposing party if the evidence, was admitted. The sixth factor of the Directive involves what additional proceedings should be afforded to protect the opposing party's right to confront the adverse evidence if admitted. The ALJ as outlined above took considerable steps to assure the claimant had the opportunity to rebut the opinions of Dr. Horrocks.
The ALJ has wide discretion to control the course of a hearing and make evidentiary rulings. Section 8-43-207(1)(c), C.R.S. 2007; IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). The ALJ has considerable discretion in determining whether a party has demonstrated good cause for failing to timely provide a medical report to opposing counsel. See IPMC Transportation Co. v. Industrial Claim Appeals Office, supra. Factors which the ALJ may consider in determining whether good cause exists for the untimely submission of a medical report include the significance of the evidence, whether or not the evidence might have been obtained and submitted by the exercise of reasonable diligence prior to the hearing, and the prejudice to the opposing party by allowing the evidence. See Raffaelo v. Industrial Commission, 670 P.2d 805 (Colo.App. 1983); see also, Donn v. Industrial Claim Appeals Office 865 P.2d 873, (Colo.App. 1993); Hart v. J.P. McGill's W. C. No. 4-551-261 (May 17, 2004).
Because the ALJ's authority is discretionary, we may not interfere with the ALJ's ruling in the absence of an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason as where it is not supported by the record or the applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). The transcript reflects the ALJ's consideration of many of the factors listed in the Directive and his decision is supported by the record. We are not persuaded the ALJ's decision to allow into evidence the report of Dr. Horrocks exceeded the bounds of reason.
IV.
The claimant contends the ALJ findings of fact regarding Dr. Chesen are not supported by the evidence. The claimant argues that the ALJ found that Dr. Chesen had "physically examined" the claimant when the claimant testified that Dr. Chesen had not physically examined her, but had only interviewed her verbally.
In his order the ALJ found that Dr. Chesen, a psychiatrist, performed a "psychiatric examination" of the claimant. Finding of Fact at 11 ¶ 33. The ALJ did state in a later part of the order that Dr. Chesen based his opinion upon extensive review of the claimant's records and upon his findings from "physical examination" of the claimant. Finding of Fact at 13 ¶ 35. The ALJ noted in contrast that Dr. Sammons provided his opinion without reviewing complete medical records and without having examined the claimant.
However, as the respondents point out, Dr. Chesen's report can be read as indicating that a physical examination took place. Dr. Chesen stated she understood she was to "examine the patient," and expressed her conclusions after having had "the opportunity of examining" the claimant. Exhibit B. In contrast, Dr. Sammons stated specifically that he had not performed a physical examination of the claimant. Sammons Depo. at 22. We cannot say that the ALJ erred in finding that Dr. Chesen had physically examined the claimant.
At any rate, even if the ALJ erred it was a harmless error, for the ALJ found Dr. Chesen's opinions more persuasive than Dr. Sammons for several reasons and based his ultimate conclusion on the evidence as a whole. Under § 8-42-101(1)(a), C.R.S. 2007, the respondents are 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). The question of whether a proposed treatment is reasonable and necessary, is generally one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). We must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. 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, 914 P.2d 411, 415 (Colo.App. 1995).
Here the medical opinions of Dr. Horrocks, Dr. Lichtenberg, Dr. Price, Dr. Stagg and the DIME physician Dr. Gerber, all support the conclusion the proposed surgical procedure should not be awarded. Horrocks Depo at 5-6; Exhibit D at 8; Exhibit 10 at 45; Exhibit 14 at 87 74; Exhibit C at 3. These reports constitute substantial evidence in support of the ALJ's factual determination.
V.
The ALJ failed to address all the issues presented to him on whether the claimant was entitled to cervical facet injections recommended by Dr. Slater.
As noted above the claimant in her application for hearing indicated that "medical benefits" was an issue to be tried at the hearing, and it further identified "reasonably necessary" as an issue. The claimant at the inception of the hearing stated that beyond the surgery she was also seeking facet injections recommended by Dr. Slater. Tr. at 8. In the claimant's position statement filed after the hearing the claimant again argued for an award of the facet injections recommended by Dr. Slater.
As the claimant correctly states, the ALJ's order does not address this issue. We agree with the claimant that this matter must be remanded to the ALJ to address the issue of the claimant's entitlement to the cervical facet injections. The issue was timely raised and the ALJ has made no findings relating to it. Under these circumstances we may not conclude that he has implicitly rejected the request for these medical benefits. See generally Womack v. Industrial Commission; 168 Colo. 364, 451 P.2d 761 (1969) (where the findings of fact do not afford an adequate basis for review, the matter must be remanded for additional findings); see also, Hall v. Industrial Claim Appeals Office, 757 P.2d 1132 (Colo.App. 1988) (basis for an order, including credibility determinations, must be articulated).
Consequently, the matter must again be remanded for that purpose. Moland v. Roadway Package System, Inc., W. C. Nos. 4-282-792 and 4-282-794 (April 21, 2003); Unrein v. New Pipeline Installations, Inc., W. C. No. 3-106-663 (April 24, 1998).
IT IS THEREFORE ORDERED that the ALJ's order dated June 14, 2007, is affirmed as to the denial of medical benefits.
IT IS FURTHER ORDERED that the matter is remanded to the ALJ with directions to enter an order resolving the claimant's request for the cervical facet injections recommended by Dr. Slater.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
LARISA COMBS, 540 E. THIRD STREET, SUPERIOR, NE, (Claimant)
CUMULUS MEDIA, INC., Attn: STEPHANIE SAMPSON, GRAND JUNCTION, CO (Employer)
ZURICH INSURANCE CO., Attn: LAURA OROZCO, KANSAS CITY, MO (Insurer)
KILLIAN, GUTHRO JENSEN, P.C., Attn: AMY K. EATON-FITZPATRICK, ESQ., GRAND JUNCTION, CO, (For Claimant)
THE KITCH LAW FIRM, Attn: MICHELLE L. PRINCE, ESQ., EVERGREEN, CO, (For Respondents)