Opinion
W.C. No. 4-548-405.
May 17, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated November 20, 2006, that ordered them to pay for a lumbar epidural steroid injection. We affirm.
Several of the ALJ's findings of fact are summarized as follows. The claimant sustained a compensable injury when his right foot slid and he fell onto his right hip and back. He initially received treatment for his right ankle. However, he complained of "hypersensitivity" in his lower extremity. Findings of Fact, Conclusions of Law, and Order (Order) at 2, ¶ 3. The claimant received two right lumbar sympathetic block injections and a bretylium bier block, after which he was diagnosed with a superficial thrombophlebitis. Dr. Hughes placed him at maximum medical improvement (MMI) on April 30, 2003 and assessed an impairment rating of six percent of the lower extremity. A Division-sponsored independent medical examination (DIME) physician subsequently assessed an 11 percent whole person impairment and recommended maintenance medical treatment. The respondents filed a final admission of liability for permanent partial disability benefits and post-MMI medical benefits, accordingly. Dr. Ross provided treatment to the claimant after he reached MMI. Dr. Ross noted that the claimant had persistent right leg pain and ordered a magnetic resonance image, which revealed a protrusion at the L4-5 level of the claimant's lumbar spine effacing the nerve roots. Dr. Ross recommended a lumbar epidural steroid injection.
Dr. Schakaraschwili performed an independent medical examination and opined that, although the lumbar injection was appropriate, it was not related to the claimant's work injury. However, Dr. Ross opined that the claimant probably had a lumbar disc injury secondary to his work injury and, also, that the proposed injection was reasonable in order to determine if the claimant has a component of lumbar radiculopathy.
The ALJ credited Dr. Ross's opinions and determined that the proposed lumbar injection is reasonably necessary to cure or relieve the claimant from the effects of his work injury. The ALJ reasoned that the injection constituted medical treatment required after the claimant reached MMI pursuant to Grover v. Industrial Comm'n, 759 P.2d 705 (Colo. 1988). He therefore rejected the respondents' assertion that the determinations of the DIME physician had any presumptive effect upon post-MMI medical benefits. We have considered the respondents' arguments and, like the ALJ, we are not persuaded that it was inappropriate to order them to pay for the lumbar injection to treat the claimant's industrial injury.
The respondents refer to the injury at issue as a "lumbar disc injury." Respondents' Brief at 1, 6. However, as we read the ALJ's order, he ordered the respondents to provide the lumbar injection to treat the claimant's admitted injury to the claimant's right lower extremity. As noted by the respondents, we have previously ruled that where the issue involves the DIME physician's opinion concerning the cause of the need for additional treatment, the DIME physician's opinion concerning causation must be overcome by clear and convincing evidence. This is true because a finding of MMI depends on a determination that any "medically determinable physical or mental impairment as result of injury has become stable and when no further treatment is reasonably expected to improve the condition." (Emphasis added). Section 8-40 201(11.5), 2006; Chestnut v. University of Colorado-Boulder, W.C. No. 4-255-498 (December 13, 1996). Furthermore, the DIME physician's opinion concerning the cause of a particular component of the claimant's medical impairment is binding unless overcome by clear and convincing evidence. Qual-Med, Inc. v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998).
We note that the ALJ is not held to a crystalline standard in articulating his findings of fact. George v. Industrial Comm'n, 720 P.2d 624 (Colo.App. 1986). In any event, the ALJ's findings are sufficient to provide the basis for the order. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990). It is true that the ALJ referred to the persuasive opinions of Dr. Ross to the effect that the injection is necessary in order to determine whether the claimant's injury includes lumbar radiculopathy in light of the "claimant's persistent complaints of right leg pain." Order at 4, ¶ 19. The ALJ went on to find that the claimant "probably has a component of lumbar radiculopathy, for which he should receive at least the epidural steroid injection." Order at 4, ¶ 20. However, the record reflects that the DIME physician's impairment rating of 11 percent whole person includes a ten percent whole person rating "for the right lower extremity sympathetic pain" pursuant to the Spinal Cord Injury Section of the American Medical Association Guidelines to the Evaluation of Permanent Impairment, Third Edition, Revised. Exhibit D at 13. It therefore appears from the order that the ALJ considered the potential for the proposed injection to address the claimant's pain symptoms, which were included in the DIME physician's impairment rating. The lumbar injection is therefore consistent with the claimant's compensable injury as delineated by the DIME physician.
Medical benefits are available to the claimant to relieve him from the effects of his industrial injury. § 8-42-101(1)(a), C.R.S. 2006; Grover v. Industrial Comm'n, 759 P.2d 705, 711 (Colo. 1988). Continuing medical benefits may be for either "active treatment" or "diagnostic procedures." See Brock v. Jack Brach Sons Trucking, W.C. No. 3-107-451, (December 15, 1995). The provision of future medical benefits must be supported by substantial evidence that future medical treatment will be reasonably necessary to relieve the claimant from the effects of his compensable injury. Grover, 759 P.2d at 711. Any such medical treatment remains subject to challenge as unrelated to the industrial injury. Grover, 759 P.2d at 712. The medical treatment ordered by the ALJ appears to be consistent with the claimant's award of permanent partial disability benefits and medical needs resulting from his compensable injury.
In any event, even assuming that the respondents are correct that the lumbar injection is to treat an injury not delineated by the DIME physician, we reject the argument that the claimant's failure to challenge the DIME report precluded him from later seeking medical benefits pursuant to Grover. We have previously ruled that a claimant's inability to overcome a DIME physician's findings concerning causation did not preclude him from later establishing causation by a preponderance of the evidence when the issue involved Grover medical benefits. Thus, in Martinez v. K-Mart Corporation, W.C. 4-164-054 (September 19, 2005), the claimant challenged the report of the DIME physician on the grounds that she needed additional treatment for a depressive disorder and for gastrointestinal problems. The ALJ found that the claimant overcame the DIME regarding the depression; however, he also determined that the gastrointestinal problems were not caused by the industrial injury. Several years later the claimant sought an order requiring the respondents to provide medical treatment, including treatment for the gastrointestinal problems that had continued. We affirmed the ALJ's order awarding those medical benefits, ruling that the claimant's failure to overcome the DIME on the issue causation did not preclude her from later proving causation by a preponderance of the evidence for purposes of Grover medical benefits.
We are not persuaded to depart from the reasoning employed in that case, and therefore conclude that the claimant here was not precluded from seeking medical benefits, even if those benefits were intended to treat a lumbar disc condition. See also Kingery-Stubbs v. Choice Hotels International W.C. No. 4-299-627 (January 20, 2006), aff'd, No. 06CA0295 (Colo.App. Jan. 25, 2007) (not selected for official publication).
The respondents next contend that the ALJ erred in awarding post-MMI medical benefits for a lumbar disc condition that was not placed at MMI by the DIME physician. The respondents did not raise this issue at the time of the hearing nor did they raise it in their post-hearing position statement. Therefore, it has not been preserved for our review. Johnson v. Industrial Comm'n, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987); Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ's order dated November 20, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________ John D. Baird
_______________________ Thomas Schrant
Neil P. Cunningham, Colorado Springs, CO, Sprinklers, Etc., Inc., Colorado Springs, CO, Steven U. Mullens PC, Steven U. Mullens, Esq., Colorado Springs, CO, (For Claimant).
Ruegsegger, Simons, Smith Stern, LLC, David L. Smith, Esq., Denver, CO, (For Respondents).
Pinnacol Insurance, Harvey D. Flewelling, Esq., Denver, CO, (For Respondents).