Opinion
W.C. No. 4-514-998.
December 30, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated July 25, 2008, that denied the claimant's request for a CT scan as a compensable medical benefit. We affirm.
A hearing was held on the issues whether the proceedings should be stayed to permit an earlier order to become final, and whether the respondents were liable to pay for a CT scan recommended by Dr. Amundson. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant sustained a compensable injury on March 19, 2001, when he fell from a ladder. He received medical treatment and was placed at maximum medical improvement. The respondents filed a final admission of liability, which admitted for maintenance medical benefits under Grover v. Industrial Commission, 759 P.2d 705, 711 (Colo. 1988). A Division-sponsored independent medical examination (DIME) reported that the claimant reached maximum medical improvement on July 16, 2001.
The ALJ here also noted that a hearing was previously held before ALJ Martinez on October 17, 2006, on the issue whether chiropractic treatment recommended by Dr. Smith was reasonable, necessary, and related to the industrial injury. The ALJ further noted that ALJ Martinez denied the claimant's request for the chiropractic treatment, finding that as a result of the compensable accident the claimant sustained a compression fracture at the L-1 level of his lumbar spine and joint dysfunction at the S-1 level. ALJ Martinez also found that the medical treatment sought was to treat radiculopathy at the L5-S1 level, but that that condition had arisen after the claimant reached maximum medical improvement for the industrial injury. ALJ Martinez concluded that the condition for which the medical treatment was recommended was not related to the industrial injury. He ordered that the claimant was not entitled to receive ongoing chiropractic care as a compensable medical benefit. The claimant appealed ALJ Martinez's order to the Industrial Claim Appeals Office, which affirmed and to the Colorado Court of Appeals, which also affirmed. The claimant sought certiorari review in the Colorado Supreme Court. (At the time the ALJ's order was entered the supreme court had not resolved the petition for certiorari review. We note from the court's announcement sheet of September 2, 2008, however, that the petition was apparently denied on that date.)
The ALJ also found that on February 8, 2008, the treating physician, Dr. Amundson, sought prior authorization from the insurer to perform a myelogram CT scan. In the accompanying report Dr. Amundson stated that a recently conducted MRI test had disclosed a degenerative disc at the L5-S1 level of the claimant's spine, along with some facet hypertrophy and some "mild neuro foraminal" at that level. The ALJ found that no conditions relating to the claimant's injury had changed since ALJ Martinez entered his order.
Based upon her factual findings, the ALJ concluded that the "law of the case" doctrine applied and that ALJ Martinez's prior ruling should apply. She noted that ALJ Martinez had concluded that the claimant was not entitled to chiropractic treatments because they were not intended to treat the results of the compensable injury. Accordingly, the ALJ here denied the claimant's request for a CT scan.
The claimant appealed and makes a number of arguments. The claimant first argues that a Division-sponsored independent medical examination (DIME) was performed and that the ALJ was bound by the report. Second, the claimant argues that the ALJ erred in not ordering the insurer to pay for the diagnostic procedures recommended by Dr. Amundson, because the medical studies were reasonable and necessary to determine what further medical care was required. Third, the claimant argues that ALJ Martinez's order was limited in scope and that the ALJ here erred in applying the doctrine of the law of the case. Finally, the claimant argues that the ALJ erred in refusing to order the diagnostic testing because the respondents failed to rebut the claimant's prima facie case that the medical treatment should be covered as a compensable medical benefit. We are unpersuaded by the claimant's arguments that the ALJ erred or abused her discretion.
I.
The claimant first argues that because the respondents did not contest Dr. Fall's DIME report, they and the Division were bound by her opinions concerning causation. The claimant further argues that the DIME reported that the claimant injured his "lumbosacral region and the right sacroiliac joint." The claimant also notes that the respondents admitted in their final admission of liability that they would pay for maintenance medical benefits. Therefore, the claimant concludes that the final admission and the DIME report, taken together, compelled an award of the diagnostic testing in this case. We disagree that the ALJ erred in this respect.
In our view, the DIME report did not compel the ALJ to award the contested medical benefits, nor did it bar her from applying preclusive principles to ALJ Martinez's prior order. Section 8-42-107(8)(c), C.R.S. 2008, provides that the DIME physician's finding of maximum medical improvement and medical impairment is binding unless overcome by clear and convincing evidence. It is also the case, as the claimant points out, that the DIME physician's opinion on the cause of a claimant's disability is an inherent part of the diagnostic assessment which comprises the DIME process of determining maximum medical improvement and of rating permanent impairment. Qual-Med, Inc., v. Industrial Claim Appeals Office, 961 P.2d 590 (Colo.App. 1998); Egan v. Industrial Claim Appeals Office, 971 P.2d 664 (Colo.App. 1998). It is apparently undisputed that no party sought to overcome the DIME report in this case by clear and convincing evidence.
However, the DIME physician's opinion has no presumptive weight on the issue of Grover medical benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Regardless whether a treating physician or the DIME physician recommended future medical treatment, the respondents were free to deny liability and place the burden on the claimant to prove by a preponderance of evidence that he needed future medical treatment. Canales v. Peak Contract Manufacturing Inc. W. C. No. 4-348-069 (August 12, 2003), aff'd, Canales v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1712 May 13, 2004) (not selected for publication).
Neither did the respondents' final admission of liability compel the ALJ to award the medical benefits without affording the respondents the opportunity to contest their relatedness to the compensable injury. The Colorado Court of Appeals has held that regardless of the filing of an admission insurers retain the right to dispute whether the need for medical treatment was caused by the compensable injury. See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003) (a general award of future medical benefits is subject to the employer's right to contest compensability, reasonableness, or necessity); Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997) (concerning a general admission for medical benefits); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). This principle recognizes that even though an admission is filed the claimant bears the burden of proof to establish entitlement to specific medical benefits. The mere admission that an injury occurred and that treatment is needed cannot be construed as a concession that all conditions and treatment that occur after the injury were caused by the injury. Cf HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990) (filing of a general admission does not vitiate respondents' right to litigate disputed issues on a prospective basis); Hardesty v. FCI constructors Inc., W. C. No. 4-611-326 (July 07, 2005).
II.
Neither do we perceive any reversible error or abuse of discretion in the ALJ's application of the "law of the case" doctrine.
The "law of the case" doctrine is a discretionary rule, which provides that issues that have been litigated and decided ordinarily should not be relitigated in the same proceeding. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). The doctrine applies to decisions of law rather than to the resolution of factual questions. Mining Equipment v. Leadville Corp., 856 P.2d 81, 85 (Colo.App. 1993). Accordingly, an ALJ may preclude the relitigation of an issue, which has been previously resolved in the same action. The purpose of the law of the case doctrine is efficiency of disposition, and if the prior ruling results in error or is no longer sound because of changed conditions, then the doctrine should not apply. People v. Roybal, 672 P2.d 1003 (Colo. 1983).
As noted, the application of the law of the case doctrine is discretionary with the ALJ. Therefore, in the absence of an abuse of that discretion, we may not disturb ALJ Broniak's decision to apply the prior ruling of ALJ Martinez's order, and her consequent denial of the claimant's request for medical benefits. The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985).
Here, the ALJ did not err in determining that the issue of relatedness had previously been adjudicated by ALJ Martinez. In this regard, we reject the claimant's argument that the scope of ALJ Martinez's order was narrow and could not properly be applied to the claimant's request for the diagnostic testing here. ALJ Broniak reviewed ALJ Martinez's order, and construed it as determining that the claimant's radiculopathy was not causally related to his compensable injury. The ALJ noted that the specific issue before ALJ Martinez was the provision of chiropractic treatments. However, ALJ Broniak concluded that the question of the causes of the claimant's then-present condition was "inextricably intertwined" with the ultimate question whether the respondents were liable for the chiropractic treatment. We note from ALJ Martinez's order that he found that the claimant sustained a compensable injury when he fell off a ladder, striking his tailbone. He further found that the claimant underwent an MRI on June 26, 2001, which revealed only minimal annular bulging at the L5-S1 level of the claimant's lumbar spine, without any disc protrusion or nerve impingement. Dr. Primack performed an EMG nerve conduction study on July 13, 2001, which showed no evidence of radiculopathy. Prior to the claimant reaching maximum medical improvement a number of physicians examined him, and none made a diagnosis of radiculopathy. That diagnosis was made following another EMG study performed on September 15, 2004. ALJ Martinez expressly credited the opinions of Dr. Olsen, who testified at the previous hearing that the claimant's radiculopathy was unrelated to his compensable injury. Dr. Olsen also opined that the claimant's compensable injury was well-healed and did not require chiropractic treatment. ALJ Martinez also found that the ongoing chiropractic treatments were not reasonable and necessary and, therefore, he denied the claimant's request for an order awarding those benefits. Having reviewed these findings, ALJ Broniak concluded that the question of the relatedness of the need for the present treatment was encompassed by ALJ Martinez's ruling. In this respect we are unpersuaded that the ALJ erred.
Additionally, the principal issue in the appeal of ALJ Martinez's order was whether the claimant had sufficient notice that the "relatedness" of the chiropractic treatments to his compensable injury would be decided. As noted, both the Industrial Claim Appeals Office and the Colorado Court of Appeals affirmed, ruling that the claimant had sufficient notice of the issue whether his compensable injury caused the need for chiropractic treatments. Under these circumstances, we are unpersuaded to disturb ALJ Broniak's determination that the issue whether the compensable injury caused the claimant's present symptoms had been fully adjudicated in the previous proceeding.
Finally, although the ALJ may have erred in applying the law of the case doctrine as opposed to the doctrines of claim or issue preclusion, we conclude that any error was both harmless and was waived by the claimant. It is true that the law of the case doctrine applies to decisions of law rather than to factual determinations. Mining Equipment Inc. v. Leadville Corp., supra; Jones v. Goldco Industries, Inc., W. C. No. 3-677-352 (November 9, 1998). Here, in our view, the disputed question whether the claimant's condition was related to his compensable injury is largely one of fact.
However, at the commencement of the hearing, the respondents' counsel sought to "stay" the proceedings, because at that time a petition for certiorari review regarding ALJ Martinez's order was pending in the Colorado Supreme Court. As noted, the claimant had appealed ALJ Martinez's order to the Industrial Claim Appeals Office, which affirmed, and then to the Colorado Court of Appeals, which also affirmed. The claimant's petition to the supreme court to review the court of appeals' opinion was pending at the time of the hearing. The respondents' motion to stay the proceedings was based upon their view that the doctrines of claim and issue preclusion could not be applied because the pending petition for certiorari prevented ALJ Martinez's order from becoming "final" for purposes of the preclusive doctrines. However, when the respondents' counsel articulated this argument, the claimant's attorney responded that it was "not true" that the respondents needed a final judgment to obtain the relief they sought. In this regard, the claimant's attorney stated that the law of the case doctrine was applicable and did not require a final judgment: "The law of the case doctrine is in the same body of law as res judicata and collateral estoppel. So, if [the respondents' attorney] wants to argue law of the case, he gets essentially the same thing as waiting until we have a final judgment." Tr. at 7. Later in his argument the claimant's attorney suggested that the respondents had decided not to argue that the law of the case doctrine applied and instead had elected to seek a "stay" of the proceedings: "The argument of respondents . . . says, well, because we filed our AP for hearing, and because we don't want to argue — I guess they don't want to argue law of the case instead of claims preclusion on a final order, they want that decision to be delayed interminably." Tr. at 8. In our view the claimant's argument at the hearing waived any later argument that the ALJ erred in applying the law of the case doctrine because it generally applies only to questions of law that had been previously decided. In this regard, we are not ruling that the claimant waived the argument that no preclusive doctrine should apply here.
It follows that, because we hold that the ALJ did not abuse her discretion in applying the law of the case doctrine to this issue, we necessarily reject the claimant's argument that the ALJ was compelled to award the contested medical benefits because they were reasonable and necessary and the argument that the respondents failed to rebut the claimant's prima facie case. As noted, ALJ Broniak concluded that ALJ Martinez's prior ruling should be applied because she determined, first, that he had adjudicated the question of the causal consequences of the industrial injury and, second, that nothing had changed with regard to the claimant's condition warranting a different result. The basis of ALJ Broniak's ruling therefore was that the contested medical benefits here were not necessitated by the compensable injury. Under these circumstances, it is unnecessary for us to address the question whether the diagnostic testing was reasonable and necessary to treat some other condition unrelated to the compensable condition.
IT IS THEREFORE ORDERED that the ALJ's order dated July 25, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
AHMED BEKKOUCHE, OVERLAND PARK, KS, (Claimant).
RSKCO, Attn: RUTH ANN KUEHL, DENVER, CO, (Insurer). IRWIN BOESEN PC, Attn: CHRIS L. INGOLD, ESQ., DENVER, CO, (For Claimant).
DWORKIN, CHAMBERS, WILLIAMS, YORK, BENSON EVANS PC, Attn: GREGORY K. CHAMBERS, ESQ., DENVER, CO, (For Respondents).