Opinion
W.C. No. 4-674-378.
March 24, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated October 29, 2008 that ruled that the respondents were not liable for the claimant's cervical decompression surgery or for temporary total disability benefits and that denied the claimant's petition to reopen. We affirm.
A hearing was held on the issues of whether the claimant was entitled to medical treatment in the form of a decompression surgery, whether she was entitled to temporary total disability benefits, and whether her claim, if closed, should be reopened based upon a worsened condition. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. In September 2004, the claimant, who was employed in working on the employer's assembly line, reported arm pain, numbness, and tingling. She was diagnosed as suffering from right and left forearm flexor tendonitis and received conservative treatment from her authorized treating physician, Dr. Wright. She was referred to Dr. Shih, who stated that she suffered from "bilateral upper extremity pain complex, non-specific." He stated that she reached maximum medical improvement on January 4, 2005, and had whole person impairment of three percent. Dr. Wright placed the claimant at maximum medical improvement on January 14, 2005, and imposed physical restrictions. The claimant returned to Dr. Wright for further evaluation and on July 14, 2005 she underwent an MRI of her cervical spine. It revealed degenerative changes and a herniated disc at the C5-C6 level of her spine. Pursuant to Dr. Wright's referral the claimant underwent physical therapy and was later referred to Dr. Villavicencio for a neurosurgical consultation. Dr. Villavicencio diagnosed "fairly significant spinal stenosis" and "cervical spondylithic myelopathy," and recommended cervical decompression surgery, which he performed on September 27, 2005.
Dr. Wright placed the claimant at maximum medical improvement again on January 20, 2006, with the same permanent restrictions and impairment rating. The claimant obtained a Division-sponsored independent medical examination (DIME), which was performed by Dr. Douthit on September 19, 2006. He assigned the claimant nine percent impairment of the whole person based on the cervical surgery. The respondents applied for a hearing in order to overcome the DIME report on impairment. On November 6, 2006 Dr. Douthit testified by deposition that he had assumed that the claimant's surgery was "part" of her claim and had not independently determined the issue of the cause of that condition. He further stated that her MRI disclosed degenerative spinal changes rather than any condition caused by an injury. He concluded that the claimant's arm symptoms were not related to her cervical spine condition. Dr. Healey testified that the claimant was likely suffering from thoracic outlet syndrome. Dr. Healey testified that he had "great reservations" about stating that the claimant's neck symptoms were related to her work. Dr. Brodie also opined that there was not likely a causal relationship between the claimant's work and her cervical symptoms. The ALJ weighed the medical evidence and found that the claimant's spinal stenosis was not caused or aggravated by her work. He further found that the cervical decompression surgery was not reasonable and necessary to cure or relieve the claimant from the effects of the compensable injury.
Based upon his factual findings, as previously noted, the ALJ concluded that the claimant failed to prove by a preponderance of the evidence that her decompression surgery was necessitated by the compensable injury of September 4, 2004. Because of this determination the ALJ also concluded that she was not entitled to temporary total disability benefits for the period following her surgery. The ALJ also concluded that the claimant's compensable condition had not worsened and he therefore denied the claimant's petition to reopen.
The claimant appealed the ALJ's order and makes three arguments. First, she argues that medical treatment is always compensable when prescribed by an authorized treating physician to treat an admitted work-related injury, "even when those physicians are wrong or negligent in prescribing that treatment." Second, the claimant argues that the record does not contain substantial evidence to support the ALJ's finding that the surgery was not intended to cure the effects of the compensable injury. And, third, the claimant argues that the ALJ erred in determining that her employment did not aggravate her cervical condition. We have reviewed the record and considered the claimant's arguments, and we are not persuaded that the ALJ committed reversible error.
The claimant first argues that her cervical surgery was compensable because it was "provided with the intent to treat an admitted work-related injury." This is so, the claimant asserts, even if the treatment is provided through a misdiagnosis, through malpractice on the part of a doctor, or because of a mere mistake regarding the relatedness of the condition treated. As we understand the claimant's argument, it is that even though it became clear in "hindsight" that the claimant's cervical condition did not cause her arm symptoms, the surgery was nonetheless "compensable" because the doctor performed it thinking he was treating the compensable condition. Thus, the claimant asserts that the surgical procedure she underwent "was probably the result of misdiagnosis or physician negligence," but she argues that it is nevertheless compensable because it was performed to treat the claimant's work-related condition. However, this is not a correct statement of the applicable law.
Rather, in our view, the respondents remain free to challenge the reasonableness, necessity, and relatedness of any specific medical treatments that may be recommended. See Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). Accepting the claimant's argument would abrogate this principle, compelling the respondents to provide any particular medical treatment on a showing that the treating physician believed it to be reasonable and necessary to treat the effects of the compensable condition. Further, the claimant's reliance on Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949) does not persuade us otherwise. In Merriman the court held that the respondents were required to pay for a surgery that treated a preexisting condition rather than the effects of the compensable injury. However, as we read that case, the court relied upon the principle that merely because a preexisting condition was found to contribute to the claimant's disability it did not preclude an award of medical benefits. Thus, the court in Merriman noted that the industrial injury was found to aggravate the preexisting condition, and the causal connection between the injury and the medical treatment therefore existed intact. In our view, Merriman does not stand for the broad principle urged by the claimant that the respondents are compelled to pay for any medical treatment recommended by the authorized treating physician and based solely upon the doctor's view that it is necessary to treat the compensable injury. As previously noted, adopting that legal standard would substantially change the law regarding the respondents' liability for medical benefits and their options regarding challenges to proposed treatment. Here, the respondents were entitled to challenge the relatedness of the decompression surgery that the claimant had undergone. When they prevailed on that challenge they were not required to pay for the surgery, despite that it was performed by a doctor who presumably believed that he was treating a component of the compensable injury.
The claimant also argues that certain of the ALJ's factual findings have no support in the record and, since the findings are dispositive ones, the order denying the surgery must be reversed. Again, we are not persuaded that the ALJ erred.
The standard of review applicable to this allegation of error is well-established. Where the claimant's entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between the work-related injury or disease and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Because these questions are factual in nature, we are bound by the ALJ's determinations in this regard if they are supported by substantial evidence in the record. 38-43-304(8), C.R.S. 2008; City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard also 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). Where conflicting expert opinion is presented, it is for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990).
Here, in our view, substantial evidence supports the ALJ's dispositive factual findings. As with most such cases there was considerable medical testimony and evidence that was susceptible to various inferences concerning the disputed issue whether the claimant's cervical condition was related to her compensable injury. As with all such cases, it was solely the responsibility of the ALJ to weigh the competing evidence, to determine its probative value, and to draw reasonable inferences from the evidence found by the ALJ to be persuasive. Here, the ALJ found the testimony of Dr. Brodie to be credible and persuasive on the question of the causes of the claimant's cervical condition. He testified that in his expert opinion the claimant's cervical condition was not caused by the her work-related injury, nor aggravated by the conditions of her work. Dr. Brodie testified that the claimant's symptoms of pain and numbness in her hands and arms, admittedly caused by the compensable condition, were not in turn caused by the cervical condition treated by the surgery. Tr. (9/26/08) at 99-100, 114. He further testified that none of the physicians who had examined the claimant had stated a "firm opinion" that the claimant's symptoms were caused by her cervical condition. Tr. (9/26/08) at 103. Dr. Brodie also stated that there was no "clinical evidence" of such a causal connection. Tr. (9/26/08) at 103-04. He also opined that the cervical decompression surgery that the claimant underwent was not necessitated by her compensable injury. Tr. (9/26/08) at 111, 114-15. Finally, Dr. Brodie stated that there was no "clinical evidence" that the claimant's cervical stenosis was "aggravated by her work." Tr. (9/26/08) at 165.
Dr. Brodie's testimony amply supports the ALJ's dispositive factual findings and those findings support the conclusion that the claimant's surgery was not necessitated by her industrial injury. Although the claimant has argued at length that certain factual findings are not supported by the evidence, we are unpersuaded that this is the case. Rather, the findings cited by the claimant are reasonable inferences from the conflicting testimony and, as previously noted, the dispositive findings are amply supported by Dr. Brodie's testimony, as well as by portions of the remaining factual record.
In connection with the argument that no substantial evidence supports the ALJ's factual findings, the claimant also argues that the ALJ abused his discretion in permitting Dr. Brodie to testify "beyond the scope of his report." As we understand the claimant's argument, she contends that the ALJ abused his discretion in refusing to limit Dr. Brodie's testimony to matters contained in his report, as a sanction for the respondents' alleged discovery violations. Specifically, the claimant contends that the respondents failed to set forth in a timely supplemental answer to the claimant's interrogatories that the doctor would testify to matters outside his report.
Counsel for the respondents was examining Dr. Brodie regarding his opinion of Dr. Wright's deposition testimony when the claimant's attorney objected based upon the respondents' failure to disclose that testimony in discovery responses. Tr. (9/26/08) at 91. Counsel for the respondents stated that correspondence had been sent to counsel for the claimant on August 4th advising the attorney that Dr. Brodie would address the opinions of other doctors who had testified in this matter. Tr. (9/26/08) at 91-92. Following discussion of the issue, the ALJ ruled that he would permit Dr. Brodie to testify as to the disputed matters, subject to the claimant's opportunity to cross-examine the doctor and to submit written argument at the close of the hearing. Tr. (9/26/08) at 96.
Workers' Compensation Rule of Procedure 9-1 applies to discovery in workers' compensation procedures. Rule 9-1(E) provides that "[i]f any party fails to comply with the provisions of this rule and any action governed by it, an administrative law judge may impose sanctions upon such party pursuant to statute and rule." Section 8-43-207(1)(e), C.R.S. 2008 permits an ALJ to impose the sanctions provided in the civil rules of procedure for willful failure to comply with permitted discovery. Those sanctions are various and range from the assessment of costs and fees to the outright dismissal of a claim or defense. Witness preclusion is one sanction that may be imposed for a party's failure to comply with discovery. See C.R.C.P. 37. In order for a discovery violation to be considered "willful" the ALJ must determine that the conduct was deliberate or exhibited "either a flagrant disregard of discovery obligations or constitutes a substantial deviation from reasonable care in complying with discovery obligations." Reed v. Industrial Claim Appeals Office, 13 P.3d 810, 813 (Colo.App. 2000). The ALJ has wide discretion in determining whether a discovery violation has occurred and, if so, the appropriate sanction to be imposed. See 38-43-207(1)(p), C.R.S. 2007; Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App. 1991). Because the ALJ's determinations in this respect are discretionary, we may only disturb the ALJ's order if it exceeds the bounds of reason, it is wholly unsupported by the evidence or is contrary to applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
We perceive no abuse of discretion. We note in this regard that the ALJ appears to have concluded that the correspondence sent on August 4th was sufficient notice to the claimant's attorney that Dr. Brodie might testify regarding matters outside those contained in his report. The ALJ observed that although the letter was apparently sent immediately before the previous hearing, some time had passed and it was then "late September." The ALJ suggested that during the time that had elapsed the claimant had an opportunity to "mitigate any problem." Tr. (9/26/08) at 96. Although it is unclear from the record whether or not the ALJ believed that there had been a discovery violation, in either event we do not believe he abused his discretion in permitting Dr. Brodie to testify "beyond the scope of his report." This is especially true given that the claimant did not at any time request a continuance or seek to present rebuttal testimony. See Tr. (9/26/08) at 166 ("no rebuttal").
Finally, the claimant argues that the ALJ erred in refusing to reopen her claim based on her allegedly worsened condition. However, the claimant appears to concede that this argument depends upon the contention that the decompression surgery was necessitated by a condition that was the compensable consequence of the work-related injury. Since the ALJ found that it was not and since we have affirmed that determination, it follows that the ALJ did not err or abuse his discretion in denying the petition to reopen. IT IS THEREFORE ORDERED that the ALJ's order dated October 29, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
JUANA SAENZ, DENVER, CO, (Claimant), CAREFREE OF COLORADO GLOBAL STAFFING, Attn: MELANIE OLIVER, BROOMFIELD, CO, (Employer), GALLAGHER BASSETT SERVICES, Attn: JENNIFER GREEN/MELISSA RYAN, ENGLEWOOD, CO, (Insurer), DARLING, BERGSTROM MILLIGAN, P.C., Attn: RICHARD J LESCH, ESQ., DENVER, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, P.C., Attn: ANNE SMITH MYERS, ESQ., DENVER, CO, (For Respondents), CASTENADA LAW OFFICE, Attn: JANIE CASTENADA, ESQ., DENVER, CO, (Other Party), THE SCOTT FETZER COMPANY, Attn: JUDY A FOX, C/O: SENIOR CLAIMS MANAGER, WESTLAKE, OH, (Other Party 2), RUEGSEGGER SIMONS SMITH STERN LLC, ATTN: KENT L YARBROUGH, ESQ., DENVER, CO., (Other Party 3) GLOBAL STAFFING, NORTHGLENN, CO (Other Party 4).