Opinion
W.C. Nos. 4-503-974 4-669-250.
August 21, 2008.
FINAL ORDER
The respondents FBG Service Corporation (FBG) and Liberty Insurance Company seek review of an order of Administrative Law Judge Stuber (ALJ) dated April 30, 2008 that found FBG's insurer was liable for the treatment recommended by Dr. Illig. We affirm.
The ALJ's pertinent findings of fact are as follows. On June 1, 2001, the claimant sustained an admitted industrial injury to his neck arising out of his employment with C-2 Utility Contractors, Inc. (C-2). On November 14, 2005, the claimant suffered an accidental injury to his neck arising out of and in the course of his employment with FBG. On January 30, 2007, a MRI showed a herniated disc at C4-5 with compression of the left C5 nerve root. Dr. Illig recommended surgery. Dr. Messenbaugh opined that ten percent of the need for the recommended surgery was caused by the 2005 work injury and 90 percent was caused by preexisting conditions. Dr. Hall opined that the recommended surgery was due to symptoms resulting from the 2005 injury. The ALJ concluded that the preponderance of the evidence failed to demonstrate that the treatment by Dr. Illig was reasonably necessary to cure or relieve the effect of the 2001 injury at C-2, but demonstrated that the surgery was reasonably necessary to cure and relieve the effects of the 2005 work injury at FBG. The ALJ ordered FBG's insurer to pay for the treatment recommended by Dr. Illig.
On appeal, the respondent FBG and its insurance carrier contend that the Division's medical treatment guidelines are the appropriate standard to determine the reasonableness and necessity of the proposed surgery. FBG further contends that the claimant was therefore required to prove that the surgery he seeks at the hand of Dr. Illig was reasonable and necessary under the medical treatment guidelines. FBG concludes that the claimant did not meet his burden of proving that the surgery proposed by Dr. Illig was reasonable and necessary under the medical treatment guidelines and therefore requests that the order of the ALJ be set aside. We are not persuaded.
The medical treatment guidelines are found in the Department of Labor Employment's Rule 17, 7 Code Colo. Reg. 1101-3. The statement of purpose of the Medical Treatment Guidelines is contained in W.C. Rule of Procedure 17-1(A), 7 Code Colo. Reg. 11013-3 at 103 that provides as follows:
In an effort to comply with its legislative charge to assure appropriate medical care at a reasonable cost, the director of the Division has promulgated these "Medical Treatment Guidelines." This rule provides a system of evaluation and treatment guidelines for high cost or high frequency categories of occupational injury or disease to assure appropriate medical care at a reasonable cost.
The use of the Medical Treatment Guidelines is contained in W.C. Rule of Procedure 17-2(A), 7 Code Colo. Reg. 11013-3 at 103 and provides as follows: "All health care providers shall use the medical treatment guidelines adopted by the Division." The medical treatment guidelines are regarded as accepted professional standards for care under the Workers' Compensation Act. Rook v. Industrial Claim Appeals Office, 111 P.3d 549 (Colo.App. 2005). The guidelines may be considered as evidence of accepted professional standards for treatment of workers' compensation injuries. Hall v. Industrial Claim Appeals Office, 74 P.3d 459 (Colo.App. 2003).
Here, FBG in its post-hearing position statement quoted sections from the medical treatment guidelines relating to cervical spine injuries. FBG then argued that Dr. Illig, Dr. Messenbaugh and Dr. Hall never addressed the need for the requested surgery under the medical treatment guidelines. FBG argues that specific indications for surgery under the medical treatment guidelines had not been established. FBG contends that these indications include such things as progressive neurological deficits, acute incapacitating pain, and confirmatory imaging studies with clinical findings.
The ALJ did not mention in his order the medical treatment guidelines. However, the ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning that evidence which he considers dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000); Maes v. Federal Fruit Produce, W. C. Nos. 4-246-932, 4-409-427, 4-413-589, 4-416-013 (May 10, 2001). Further, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48 (1970). Rather, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
It is apparent to us that the ALJ was not persuaded by the arguments related to the medical treatment guidelines. We therefore do not agree with FBG's contention that the failure of the ALJ to discuss the medical treatment guidelines in the circumstances here compels the conclusion that the ALJ's factual findings are insufficient to permit appellate review.
We acknowledge that it is appropriate for the ALJ to consider the medical treatment guidelines in deciding whether a certain medical treatment is reasonable and necessary for the claimant's condition. Deets v. Multimedia Audio Visual, W. C. No. 4-327-591 (March 18, 2005); see Eldi v. Montgomery Ward W. C. No. 3-757-021 (October 30, 1998) (medical treatment guidelines are a reasonable source for identifying the diagnostic criteria).
However, we are not persuaded that as a matter of law the medical evidence establishes that the provisions of the medical treatment guidelines were not met in the present case. FBG did not cross-examine any of the medical experts regarding adherence to the medical treatment guidelines. FBG did not offer any expert opinion on the question of whether operative treatment was indicated pursuant to the medical treatment guidelines in the case of the claimant. Instead, FBG relied on argument in its post-hearing position statement in which it contrasted certain provisions of the medical treatment guidelines with some of the evidence produced. In our opinion, the ALJ was not compelled to accept this as definitive proof of noncompliance with the medical treatment guidelines.
Contrary to contentions of FBG, there is evidence in the record, which can be viewed as establishing the indications for surgery under the medical treatment guidelines. On the issue of the need for confirmatory imaging studies with clinical findings, we note that the January 30, 2007 MRI showed a herniated disc at C4-5 with compression of the left C5 nerve root. Exhibit 16. In addition there was a January 22, 2007 EMG/NCS that showed the claimant had an acute left C6 radiculopahty, which was not present on a previous EMG/NCS from 2001. Exhibit 15. These electrodianostic findings were consistent with acute left C6 (C5) motor radiculopathy. Exhibit 15.
Further, regarding FBG's contention that there were no clinical findings, no progressive neurological deficits, and no acute incapacitating pain, we note that Dr. Illig found after the 2005 industrial accident at FBG that the claimant felt a pop in his neck, developed neck pain with extension out into the trapezius and down the lateral brachium and within a few days developed increased weakness of the left arm. Exhibit 12. Dr. Illig also, in recommending surgery, noted it reasonable given the chronicity of the claimant's symptoms and the likelihood of a good outcome with long-standing atrophy and weakness.
Even if specific indications for surgery under the medical treatment guidelines were not shown to be present, under the circumstances here we are not persuaded that such a determination would be definitive. See Jones v. T.T.C. Illinois, Inc., W.C. No. 4-503-150 (May 5, 2006); aff'd Jones v. Industrial Claim Appeals Office No. 06CA1053 (Colo.App. March 1, 2007) (not selected for publication) (it is appropriate for the ALJ to consider the guidelines on questions such as diagnosis, but the guidelines are not definitive); see also, Burchard v. Preferred Machining, W.C. No. 4-652-824 (July 23, 2008) (declining to require application of medical treatment guidelines for carpal tunnel syndrome in determining issue of PTD); Siminoe v. Worldwide Flight Services, Inc., W.C. No. 4-535-290 (November 21, 2006) (appropriate for ALJ to consider guidelines; however, deviation from medical treatment guidelines does not compel fact finder to disregard the opinion of that medical expert on issue of causal connection between work related injury and particular medical condition).
Here the ALJ found with record support that the treatment recommended by Dr. Illig was reasonably necessary to cure and relieve the effects of the 2005 industrial injury at FBG. The ALJ found persuasive Dr. Hall's opinion that the treatment was due to the symptoms from the 2005 work injury. Exhibit 20. Dr. Illig opined that the surgery was medically necessary. Exhibit 17. Even Dr. Messenbaugh opined that the treatment recommended by Dr. Illig was medically necessary. Exhibit 18.
FBG and its insurer are liable for medical treatment, which is reasonably necessary to cure and relieve the effects of the 2005 industrial injury. Section 8-42-101(1)(a), C.R.S. 2007; Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). The determination of whether a particular treatment is reasonable and necessary to treat the industrial injury is a question of fact for the ALJ. Parker v. Iowa Tanklines, Inc., W.C. No. 4-517-537 (May 31, 2006); Chacon v. J.W. Gibson Well Service Company, W. C. No. 4-445-060 (February 22, 2002). We may not disturb the ALJ's resolution if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; City and County of Denver School District 1 v. Industrial Commission, 682 P.2d 513 (Colo.App. 1984). Substantial evidence is that quantum of probative evidence, which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In this regard medical evidence is neither required nor dispositive. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963). However, insofar as medical evidence is presented, we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative weight of the evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992); Dow Chemical Co. v. Industrial Claim Appeals Office, 843 P.2d 122 (Colo.App. 1992) (ALJ free to credit one medical opinion to the exclusion of a contrary medical opinion). Furthermore, the substantial evidence standard requires that we defer to the ALJ's credibility determinations and plausible inferences he drew from the record. Metro Moving Storage Co. v. Gussert, supra.
Here, as noted above, there was substantial evidence supporting the ALJ's order. In addition, the ALJ found with record support that following his recovery from the 2001 injury the claimant needed no additional treatment other than medications, psychotherapy, and home exercises. Tr. 16-17. The ALJ found the opinion of Dr. Hall to be more persuasive than the apportionment opinion of Dr. Messenbaugh. The ALJ acknowledged that the claimant had preexisting degenerative changes in his cervical spine. Nevertheless, with record support the ALJ found that the claimant's November 14, 2005 work injury caused the disc herniation and nerve root compression and need for additional treatment, including the surgery by Dr. Illig. Exhibit 17. Here, the record amply supports the ALJ's findings and we perceive no basis on which to interfere with the ALJ's finding.
IT IS THEREFORE ORDERED that the ALJ's order issued April 30, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____ John Baird
_____ Thomas Schrant
EDWARD STAMEY, VICTOR, CO, (Claimant).
C2 UTILITY CONTRACTORS, INC. and FBG SERVICE CORP., Attn: KAY GLOUNER, C/O: FBG SERVICE CORP, COLORADO SPRINGS, CO, (Employer).
LIBERTY MUTUAL INSURANCE, Attn: MALCOLM CHANDLER, ENGLEWOOD, CO, (Insurer).
STEVEN U MULLENS, PC, Attn: RICHARD LAMPHERE, ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLISHAM, SATRIANA BISCAN, LLC, Attn: PATRICIA JEAN CLISHAM, ESQ., DENVER, CO, (For Respondents).
ZARLENGO, MOTT, ZARLENGO AND WINBOURN, PC, Attn: SCOTT M BUSSER, ESQ., DENVER, CO, (Other Party).
LIBERTY MUTUAL INSURANCE, Attn: LADONNA BINGHAM, IRVING, TX, (Other Party 2).