Summary
In Sotelo the Panel set aside the ALJ's determination that the claimant was at MMI because the ALJ had also made the factual finding that physical therapy would improve the claimant's functional capacity and therefore reasonable minds could draw but one conclusion when applying the undisputed facts to the law.
Summary of this case from In re Manchego v. Residence Inn, W.C. NoOpinion
W.C. No. 4-320-606
March 2, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Hopf (ALJ) which denied the claim for temporary disability benefits commencing June 26, 1998. The claimant contends the ALJ erred in determining that she reached maximum medical improvement (MMI) on June 25. We agree and, therefore, reverse the ALJ's order.
The claimant sustained a compensable back injury in September 1996. He underwent disc surgery at the L5-S1 level, which was performed by Dr. Shogan. In March 1998 Dr. Shogan referred the claimant to Dr. Zinis for evaluation and treatment. Following a course of physical therapy and work hardening, Dr. Zinis placed the claimant at MMI on June 25, 1998. At that time, Dr. Zinis opined the claimant had "not made any improvements and seems to have plateaued in his recovery process." Dr. Zinis also assessed an 11 percent whole person medical impairment rating and restricted the claimant to light duty or sedentary work. In October 1998, the respondents filed a final admission of liability based on Dr. Zinis' opinions, and terminated temporary disability benefits effective June 25, 1998.
In May 1999 the claimant filed an application for hearing seeking additional temporary total disability benefits. At the hearing, the claimant submitted the reports and testimony of Dr. Shogan, who opined the claimant did not reach MMI on June 25, 1998. Dr. Shogan stated that, because the claimant continues to experience significant back pain, he needs a "comprehensive rehabilitation program." (Shogan report, April 16, 1999; Tr. p. 49). Further, Dr. Shogan stated that the purpose of the proposed physical therapy is to improve the claimant's capacity to lift, although it could also reduce his impairment rating. (Tr. p. 54-55).
The reports and testimony of Dr. Zinis were also presented at the hearing. Dr. Zinis agreed with Dr. Shogan that the claimant needs a "consistent therapy program for about 6 to 8 weeks," which would give the claimant the best chance of improving his "function". In fact, Dr. Zinis stated the purpose of the therapy would be to increase the claimant's capacity so that he could lift 40 to 50 pounds without pain. However, Dr. Zinis stated that he was still of the opinion that the claimant reached MMI on June 25, 1998, because the claimant's condition had "plateaued," and the claimant's "objective findings," as evidenced by MRI results, did not significantly change after surgery. (Tr. p. 62). Dr. Zinis also stated that he does "not feel that condition is necessarily equated with function." (Tr. p. 70).
The ALJ credited the testimony and reports of Dr. Zinis, which she found to be more credible than those of Dr. Shogan. Specifically, the ALJ credited Dr. Zinis' report of July 21, 1999, which "confirms that the physical therapy recommended by Dr. Shogan is geared at improving [the claimant's] functional capacity." Further, the ALJ found that both Dr. Shogan and Dr. Zinis agree that the proposed therapy should improve the claimant's "functional" lifting capacity, but found that Dr. Zinis does not believe the treatment will improve the claimant's "condition." (Finding of Fact 10). Thus, the ALJ found the claimant has been at MMI since June 25, 1998, and that the respondents properly terminated temporary total disability benefits pursuant to § 8-42-105(3)(a), C.R.S. 1999. However, the ALJ ordered the respondents to provide the proposed therapy because she found it is necessary to relieve the effects of the injury.
On review, the claimant contends the ALJ applied an incorrect legal standard in determining that he reached MMI on June 25, 1998. The claimant reasons that the ALJ drew an untenable distinction between the terms "condition" and "function" for purposes of determining MMI under the definition found in § 8-40-201(11.5), C.R.S. 1999. The claimant argues that medical treatment designed to improve his "functional ability" constitutes treatment designed to improve his "condition", and he will not reach MMI until the physical therapy has been provided. Under the circumstances presented here, we agree.
§ 8-40-201 (11.5) provides as follows:
"Maximum medical improvement" means a point in time when any medically determinable physical or mental impairment as a result of the injury has become stable and when no further treatment is reasonably expected to improve the condition. The requirement for future medical maintenance which will not significantly improve the condition or the possibility of improvement or deterioration resulting from the passage of time shall not affect a finding of maximum medical improvement. The possibility of improvement or deterioration resulting from the passage of time alone shall not affect the finding of maximum medical improvement. (Emphasis added).
In construing this statute, we must seek to effect the legislative intent. In order to do so, we must first look to the statutory language and afford the words their plain and ordinary meanings. Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Insofar as there is any ambiguity, we may consider the state of law prior to the legislative enactment. Further, we should construe the entire statutory scheme in a manner that gives consistent, harmonious, and sensible effect to all of its parts. Further, the General Assembly is presumed to be cognizant of relevant judicial precedent when it enacts legislation in a particular area. If a statute is amended, the judicial construction previously placed on the statute is deemed approved if the provision remains unchanged. United States Fidelity and Guaranty, Inc., v. Kourlis, 868 P.2d 1158 (Colo.App. 1994).
Initially, we note that the term "condition" has been defined as "a state of health." The American Heritage College Dictionary (3rd Edition) 1993. Thus, the "plain and ordinary meaning" of the word "condition" does not connote a fine distinction between disease of the claimant's tissues and the claimant's ability to move his body through a normal or "functional" range of motion without pain. Indeed, we believe that in the ordinary sense the claimant's "state of health" encompasses both problems.
More importantly, we hold that the term "condition," as used in § 8-40-201(11.5), should be construed in its historical context. As noted by our Supreme Court in Golden Animal Hospital v. Horton, 897 P.2d 833 (Colo. 1995), § 8-40-201(11.5) was enacted in 1991. However, the statute merely codified the pre-existing judicial practice of using maximum medical improvement as the date for terminating temporary disability benefits and assessing permanent disability. Id. at 838.
Significantly, cases decided prior to the enactment of § 8-40-201 (11.5) held that MMI exists "when the underlying condition causing the disability has become stable and nothing further in the way of treatment will improve that condition." (Emphasis added). See Reynolds v. Industrial Claim Appeals Office, 794 P.2d 1080, 1081 (Colo.App. 1990); Golden Age Manor v. Industrial Commission, 716 P.2d 153 (Colo.App. 1985). In Reynolds, the court held as a matter of law that the claimant's "condition" was not at MMI where the treating physician recommended additional surgery and the physician stated the "additional surgery could affect the claimant's physical restrictions and disability rating." Id. at 1082. Similarly, in Dziewior v. Michigan General Corp., 672 P.2d 1026 (Colo.App. 1983), the court held the claimant was not at MMI where she indicated her willingness to undergo treatment at a pain clinic which "had a reasonable prospect of success in alleviating claimant's pain syndrome." Id. at 1029; see also, Golden Age Manor v. Industrial Commission, supra.
When the General Assembly enacted the statutory definition of MMI found in § 8-40-201(11.5), it was presumably aware that the courts had previously employed a broad definition of the term "condition." For purposes of determining MMI, the courts had conceived of the claimant's "condition" as affecting his medical restrictions, disability rating, and symptoms of pain. Being aware of the broad definition employed by the courts, it is unlikely that the General Assembly intended to imply a narrower definition of the word "condition" when it enacted § 8-40-201(11.5). If the General Assembly had intended to enact a definition of MMI which does not encompass treatment designed to reduce the claimant's medical restrictions or improve functional capacity, it would have selected more circumspect language. Instead, as noted in Golden Animal Hospital v. Horton, supra, the statute appears to be a codification of pre-existing law.
Moreover, this conclusion is consistent with § 8-42-101(1)(a), C.R.S. 1999, which requires the employer to furnish such medical treatment "as may reasonably be needed at the time of the injury or occupational disease and thereafter during the disability to cure and relieve the employee from the effects of the injury." This statutory provision has been defined broadly enough to encompass treatment of conditions which are unrelated to the industrial injury where such treatment is necessary to achieve optimum treatment of the compensable injury. See Public Service Co. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1851, April 29, 1999). It would be an anomalous and inconsistent construction of the Act if the respondents were required to provide "medical treatment", such as physical therapy, under § 8-42-101(1)(a), but such treatment was not viewed as affecting the claimant's "condition" for purposes of determining MMI under § 8-40-201(11.5).
It is true, as the respondents point out, that the question of whether the treating physician has determined the claimant to be at MMI is ordinarily one of evidentiary fact for determination by the ALJ. See Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996). However, § 8-40-201(11.5) establishes a legal definition of MMI, and we may set aside an ALJ's determination where reasonable minds can draw but one conclusion when applying the undisputed facts to the law. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993); Golden Age Manor v. Industrial Commission, supra.
Here, the ALJ found as fact that the proposed therapy will improve the claimant's "functional capacity" by improving his ability to lift. Although the ALJ credited Dr. Zinis' distinction between treatment which improves the claimant's "condition" and treatment which improves his "functional capacity," we have concluded that this distinction is not supported by the legal definition of MMI. Rather, as we understand the statute, improving the claimant's functional capacity to lift weight will improve his "condition" within the meaning of § 8-40-201(11.5). Therefore, as a matter of law, the ALJ's findings establish the claimant is not at MMI.
We also reject the ALJ's conclusion that the proposed physical therapy constitutes the type of treatment contemplated by Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The essence of Grover-style medical treatment is the provision of ongoing or periodic medical care which relieves the effects and symptoms of the injury, or prevents deterioration of the claimant's condition. See Holly Nursing Care Center v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA0657, December 9, 1999). In contrast, medical care provided prior to MMI is designed to cure the claimant's condition by restoring it as nearly as possible to that which existed before the injury. Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995); Reynolds v. Industrial Claim Appeals Office, supra.
Here, the ALJ has found as a matter of fact that the proposed treatment is designed to restore some of the claimant's lost physical function, and the restoration will improve the claimant's condition beyond that which existed at the time the claimant allegedly reached MMI in June 1998. Therefore, the proposed treatment is not Grover-style medical treatment.
Under the circumstances, we reverse the ALJ's order insofar as it determined the claimant reached MMI on June 25, 1998, and denied and dismissed the claim for temporary total disability benefits after that date.
IT IS THEREFORE ORDERED that the ALJ's order dated October 7, 1999, is reversed, and the claimant's right to receive temporary disability benefits commencing June 26, 1998, is reinstated. The claimant may continue to receive temporary disability benefits until terminated in accordance with the law.
IT IS FURTHER ORDERED that the claimant's request to file a "reply brief" is denied.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to § 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed March 2, 2000 to the following parties:
Cruz Sotelo, 8951 Hickory Pl., Thornton, CO 80229
Ken Kage, National By-Products, Inc., P. O. Box 16372, Denver, CO 80216
Larry Peluso, St. Paul Fire Marine Insurance Company, P. O. Box 441565, Aurora, CO 80044-1565
Jeffrey A. Goldstein, Esq., 1763 Franklin St., Denver, CO 80218 (For Claimant)
Michael J. Barbo, Esq., 12250 E. Iliff Ave., #308, Aurora, CO 80014-1253 (For Respondents)
BY: A. Pendroy