Opinion
W.C. No. 4-261-785
May 20, 1998
ORDER OF REMAND
The claimant and the respondents petitioned separately for review of an order of Administrative Law Judge Gandy (ALJ), which awarded medical and temporary disability benefits after October 1, 1996, and determined the average weekly wage. We set aside the contested portion of the order and remand for the entry of a new order.
The claimant suffered a work-related back injury on December 31, 1994. The respondents admitted liability, provided medical treatment by Dr. Todd, and paid temporary disability benefits until July 24, 1996, when the claimant was determined to be at maximum medical improvement (MMI). The claimant's condition subsequently worsened, and she returned to Dr. Todd for further treatment. Dr. Todd referred the claimant to Dr. Janssen who recommended surgical stabilization of L5-S1.
The ALJ found that Dr. Todd opined that the claimant was no longer at MMI as of October 1, 1996. Because neither party obtained an independent medical examination (IME) under the provisions of § 8-42-107(8)(b), C.R.S. 1997, to dispute Dr. Todd's opinion, the ALJ found that he was bound by Dr. Todd's opinion on the issue of MMI. Therefore, the ALJ ordered the respondents to provide further medical benefits including the surgery recommended by Dr. Janssen. The ALJ also ordered the respondents to reinstate temporary disability benefits effective October 1, 1996, and determined the claimant's average weekly wage to be $124.85.
I.
On review the respondents contest the ALJ's finding that Dr. Todd opined the claimant was no longer at MMI as of October 1, 1996. The respondents contend that Dr. Todd's testimony and medical reports are subject to conflicting inferences concerning whether the claimant's condition remained "static" after July 24, 1996. Thus, they argue that the ALJ failed to resolve pertinent conflicts in the evidence. We are not persuaded.
The ALJ expressly found that, in the opinion of Dr. Todd, the claimant was no longer at MMI as of October 1, 1996. (Finding of Fact 3). Thus, the ALJ implicitly credited that part of the medical evidence indicating that Dr. Todd believed the claimant's condition worsened to the point that she was no longer at MMI as of October 1, 1996. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) (it is for ALJ to resolve internal inconsistencies in expert medical testimony, ALJ may credit all, part, or none of a witness' testimony).
The ALJ's determination is supported by substantial evidence in the record, and therefore, must be upheld. Section 8-43-301(8), C.R.S. 1997. For example, in his report dated May 23, 1997, Dr. Todd stated that the claimant "did at one time reach" MMI "but has been unable to maintain that primarily due to continued pain." Similarly, in a report dated June 12, 1997, Dr. Todd stated that as of October 1, 1996 the claimant is not at MMI. See also, report of June 9, 1997.
II.
Next, the respondents contend the ALJ erred in holding them liable for the surgery recommended by Dr. Janssen on the basis that neither party obtained an IME to dispute Dr. Todd's opinion that the claimant is no longer at MMI. We agree.
As argued by the respondents, they are only liable for treatment reasonably necessary to cure and relieve the effects of the industrial injury. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997); Gonzales v. Industrial Claim Appeals Office, 905 P.2d 16 (Colo.App. 1995) (surgery for industrial foot injury, counter indicated and unreasonable without surgery for pre-existing heart condition). The reasonableness of treatment is a distinct issue from whether the treatment is authorized. Mason Jar Restaurant v. Industrial Claim Appeals Office, 862 P.2d 1026 (Colo.App. 1993). Accordingly, an "authorized treating physician's" recommendation for treatment is not dispositive of the respondents' liability for the treatment.
Here, the ALJ recognized the respondents' argument that the recommended surgery was unreasonable. (Tr. p. 51); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd on other grounds at 783 P.2d 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). The ALJ also expressly recognized the conflict between Dr. Janssen and Dr. Wong concerning the reasonableness of the proposed surgery. (Findings of Fact 5, 6). Despite this conflict, the ALJ did not make any specific findings concerning the reasonableness of the recommended surgery.
Furthermore, the ALJ's finding that the claimant was no longer at MMI is not dispositive of the respondents' liability for the recommended surgery. This is true because a claimant may receive continuing medical benefits after MMI if reasonably necessary to relieve the effects of the injury or prevent a deterioration of her condition. See Stollmeyer v. Industrial Claim Appeals Office, 916 P.2d 609 (Colo.App. 1995). Thus, regardless of when treatment is provided relative to MMI, the ALJ may make an independent assessment of the reasonableness and necessity for the treatment.
Moreover, with the exception of § 8-42-107(8)(b)(II), C.R.S. 1997, there is no statutory provision requiring any party to obtain an IME to contest an authorized treating physician's opinion that the claimant is no longer at MMI. See Aren Design, Inc. v. Becerra, 897 P.2d 902 (Colo.App. 1995). Thus, we have held that an IME is not a prerequisite to granting a petition to reopen based on a worsened condition because reopening is not a challenge to the original MMI date. See Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); Patla v. Bethesda Care Center, W.C. No. 4-150-170 (July 20, 1995). There is no finding or assertion that the provisions of § 8-42-107(8)(b)(II) are applicable to the facts of this claim. Therefore, the ALJ erred insofar as he concluded that the parties' failure to obtain an IME to dispute Dr. Todd's opinion that the claimant is no longer at MMI is dispositive of the respondents' obligation to pay for the surgery recommended by Dr. Janssen.
In the absence of the ALJ's erroneous determination that the respondents are liable for the surgery because they failed to obtain an IME, the ALJ's remaining findings are insufficient to support the award of medical benefits in the form of surgery. Therefore, the matter must be remanded to the ALJ for the entry of additional findings of fact and a new order concerning the respondents' liability for the surgery recommended by Dr. Janssen. Section 8-43-301(8), C.R.S. 1997.
III.
For her part, the claimant contends the ALJ abused his discretion in refusing to increase her average weekly wage to reflect her higher earnings at the time of her temporary disability from the industrial injury. We conclude that the ALJ's findings of fact are insufficient to permit appellate review of the claimant's argument.
Under § 8-42-102(3), C.R.S. 1997, the ALJ has discretion to calculate the average weekly wage in a manner that will "fairly" compensate the claimant for her wage loss. This discretionary authority includes the power to increase the claimant's average weekly wage for periods of disability which occur subsequent to the initial period of disability. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). The overall purpose of the statutory scheme is to "arrive at a fair approximation of the claimant's wage loss and diminished earning capacity." Campbell v. IBM Corp., supra.
In Campbell the court held that a "manifest injustice" resulted where the claimant's earnings increased after the industrial injury, but the ALJ declined to increase the average weekly wage for subsequent periods of disability. Here, as in Campbell, the claimant's earnings increased subsequent to the industrial injury, and the claimant did not suffer any temporary disability until several months after the injury. Thus, on its face, this case is, indistinguishable from Campbell.
Because the ALJ's authority is discretionary, we may not interfere with the ALJ's calculation of the average weekly wage unless an abuse is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). An abuse is shown where the order is not in accordance with applicable law, or not supported by substantial evidence in the record. Coates, Reid Waldron v. Vigil, supra. However, the ALJ's findings must be sufficient to indicate the basis of the order, and the reasons for his refusal to exercise his discretion. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.) (findings must be sufficient to support appellate review); Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992) (findings must be sufficient to indicate the basis of the order).
The ALJ did not make any factual determinations in support of his refusal to modify the claimant's average weekly wage. Rather, the ALJ merely found that "upon weighing all of the evidence," the claimant's average weekly wage is $124.95. See Summary Order, August 14, 1997. Consequently, we are unable to ascertain the factual basis of the ALJ's implicit conclusion that no injustice results from refusing to increase the claimant's average weekly wage to reflect her increased wages at the time of her temporary disability. See Barrett v. West Slope AG Center, Inc., W.C. No. 4-274-662 (December 27, 1996).
Under such circumstances, we remand the matter to the ALJ for entry of specific findings of fact and conclusions of law concerning the calculation of claimant's average weekly wage. This order should not be understood as requiring the ALJ to increase the claimant's average weekly wage, nor is he prohibited from doing so. We merely require that the ALJ to enter findings which provide a basis for reviewing the order.
IT IS THEREFORE ORDERED that the ALJ's order dated September 8, 1997, is set aside insofar as it requires the respondents to pay temporary disability benefits based upon an average weekly wage of $124.85, and requires the respondents to pay for the surgery recommended by Dr. Janssen. The matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ David Cain ____________________________________ Kathy E. Dean
Copies of this decision were mailed May 20, 1998 to the following parties:
Betty J. Huntsman, P.O. Box 662, Craig, CO 81626
Craig Hotel Partners d/b/a Holiday Inn, 300 S. Highway 13, Craig, CO 81625-3608
Helen Russell, OHMS, P.O. Box 173682, Denver, CO 80217-3682
Deneille Casillo, Citation Insurance Co., P.O. Box 28586, San Jose, CA 95159
John Hoyman, Esq. Bob Ring, Esq., 1115 11th Ave., Greeley, CO 80631 (For the Claimant)
Anne Smith Myers, Esq. Karen R. Wells, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For the Respondents)
BY: _______________________