Opinion
W.C. No. 4-438-212
November 6, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ Stuber) which denied medical benefits for treatment of low back pain. We affirm.
In September 1999 the claimant suffered an admitted knee injury. The claimant underwent surgery in February 2000 and was later referred to Dr. Kinnett for additional treatment. In September 2002 the claimant became pregnant. The claimant subsequently began reporting increased back pain. Dr. Kinnett opined the low back pain was caused by the claimant's altered gait from the knee injury and recommended a lumbar MRI to rule out other possible causes of the back pain. Dr. Kinnett also opined the claimant was not at maximum medical improvement (MMI) in the absence of treatment for the back pain.
Following a hearing on May 23, 2002, ALJ Mattoon ordered the respondent to provide a lumbar MRI as a diagnostic tool. Although not part of the record, the MRI was apparently completed on May 31, 2002 and showed mild degenerative disc disease at L4-5 without neurological impingement.
Meanwhile, at the respondent's request, Dr. Gray performed an independent medical examination (IME) on March 18, 2002. Dr. Gray opined the claimant reached MMI for the knee injury and that the low back pain was unrelated to the injury.
Pursuant to § 8-42-107(8)(b)(II)(A)-(D), C.R.S. 2003, the respondent then obtained an a Division-sponsored independent medical examination. The DIME physician agreed with Dr. Gray's finding of MMI and assigned a scheduled disability rating for permanent impairment to the right knee. Furthermore, the DIME physician opined the claimant's low back pain was not caused by the industrial injury.
Based on the DIME physician's extremity rating, the respondent filed a Final Admission of Liability. The claimant objected to the Final Admission and requested a hearing to overcome the DIME's physician's MMI determination.
ALJ Stuber determined the claimant failed to overcome the DIME's opinion that the low back condition was unrelated to the industrial injury. Therefore, ALJ Stuber determined the claimant was at MMI and dismissed the claim for medical benefits to treat the low back.
On review the claimant contends ALJ Matton implicitly found the back condition was causally related to the industrial injury. The claimant also points out that Dr. Gray did not find her to be at MMI for the back injury. Therefore, the claimant argues the DIME was premature and invalid. We reject these arguments.
Respondents are liable for medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1), C.R.S. 2003; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). However, in Public Service Company of Colorado v. Industrial Claim Appeals Office, 979 P.2d 584 (Colo.App. 1999), the court held a respondent may also be held liable for ancillary medical treatment of a non-occupational condition if reasonable and necessary to "achieve the optimum treatment of the compensable injury."
In Public Service, there was substantial evidence that stabilization of the claimant's non-industrial bipolar disorder was reasonably necessary for the claimant to achieve a full recovery from surgical treatment of the industrial injury. Under these circumstances, the court upheld an order requiring the employer to pay for treatment of the bipolar disorder.
Contrary to the claimant's contention, ALJ Mattoon did not find that the claimant's back pain is causally related to the industrial injury. Indeed, ALJ Mattoon noted that the claimant's back pain may be the result of weight gain during pregnancy or extended sitting. ( See Order June 14, 2002; Findings of Fact 7, 9). Rather, ALJ Mattoon ordered the MRI as an ancillary form of diagnostic medical treatment to aid in determining whether the industrial injury caused compensable low back pain. ( See Discussion and Conclusions of Law 2) (Claimant has proven that the diagnostic MRI of the lower back is "necessary to determine whether the back pain is caused by the right knee condition, and what treatment is necessary). Cf. Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949).
We also reject the claimant's contention that the DIME was premature. MMI is defined as the point in time when the claimant's condition is "stable and no further treatment is reasonably expected to improve the condition." Section 8-40-201(11.5), C.R.S. 2003.
Under § 8-42-107(8)(b)(I) (II), the initial determination of MMI is to be made by an authorized treating physician. However, a party may obtain a DIME to dispute an authorized treating physician's opinion the claimant has not reached MMI if 1) at least 18 months have passed since the date of injury; 2) the party has requested such authorized treating physician to determine MMI; 3) such authorized treating physician has not determined the claimant is at MMI; and 4) a physician other than such authorized treating physician has determined that the claimant has reached MMI.
As argued by the claimant MMI is not divisible and a claimant cannot be placed at MMI until all compensable components of the injury are stable. See City of Colorado Springs v. Industrial Claim Appeals Office, 954 P.2d 637 (Colo.App. 1997). However, because ALJ Mattoon did not determine whether the industrial injury included a low back component it was not necessary for Dr. Gray to place the claimant at MMI for both the knee and low back conditions before the respondent could obtain a DIME under § 8-42-107(8)(b)(II).
Furthermore, although Dr. Gray was unable to state whether the claimant was at MMI for the low back problems, he opined that the claimant's low back problems were "probably not work-related" and that the "minor gait abnormality, proposed by Dr. Kinnett, did not cause the chronic recurrent low back pain condition." (Dr. Gray March 18, 2002). Therefore, the record supports ALJ Stuber's finding that Dr. Gray found the claimant to be at MMI for all compensable components of the industrial injury and, there is no dispute the other conditions precedent to obtaining a DIME were established. Consequently, the DIME was not premature.
We also reject the claimant's contention that the "law of the case" doctrine precluded ALJ Stuber from adopting the DIME physician's finding that the claimant reached MMI in March 2002. The "law of the case" doctrine is a discretionary rule which provides that prior relevant rulings made in the same case are generally to be followed. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). The only purpose of the rule is efficiency of disposition. Moreover, the law of the case applies to decisions of law and not findings of fact. Mining Equipment Inc. v. Leadville Corp., 856 P.2d 81 (Colo.App. 1993).
Contrary to the claimant's contention, ALJ Mattoon did not determine as a matter of law that the claimant was not at MMI. Rather, she effectively determined as a factual matter that resolution of the issue would have to await a diagnostic MRI. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings which are necessarily implied by the ALJ's order).
In any case, the law of the case doctrine does not apply if the prior ruling results in error or is no longer sound because of changed conditions resulting in manifest injustice. People v. Roybal, 672 P.2d 1003 (Colo. 1983); Verzuh v. Rouse, supra. Here, ALJ Stuber was implicitly persuaded by the DIME physician's opinion that the MRI "itself does not answer the question of causality of the chronic back pain." (Respondent's Hearing Exhibit C). Therefore, insofar as ALJ Mattoon's order could be read as a legal determination that the claimant was not at MMI, the ALJ was persuaded the prior ruling was erroneous. Therefore, the law of the case doctrine is not applicable.
The claimant's contentions are actually more akin to an argument that ALJ Stuber was collaterally estopped from finding the claimant was at MMI in March 2002. The doctrine of collateral estoppel is directed to "issue preclusion," and may be applicable when a party seeks to relitigate an issue of fact or law determined in a prior proceeding. Sunny Acres Villa Inc., v. Cooper, 25 P.3d 44 (Colo. 2001) ; M M Management Co. v. Industrial Claim Appeals Office, 979 P.2d 574 (Colo.App. 1998). The doctrine bars relitigation of an issue previously determined if the issue: (1) sought to be precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is asserted has been a party to or is in privity with a party to the prior proceeding; (3) there is a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Sunny Acres Villa Inc., v. Cooper, supra.
Here, there is no identity of issues in the hearings before ALJ Mattoon and ALJ Stuber. The issue before ALJ Mattoon was whether the claimant was entitled to a diagnostic test to determine the cause of her back pain. In contrast, the issue before ALJ Stuber was whether the DIME physician correctly determined the cause of the back pain after reviewing the diagnostic test results.
Further, ALJ Mattoon's order was not a final order concerning whether the claimant was at MMI. To the contrary, the diagnostic testing was ordered as an aid in resolving that issue.
In any case, the respondent's incentive to litigate the issue of MMI was arguably greater at the hearing before ALJ Stuber than the hearing before ALJ Mattoon, since its exposure before ALJ Mattoon was limited to the cost of the MRI. See Sunny Acres Villa Inc., v. Cooper, supra. For these reasons, the doctrine of collateral estoppel is not applicable and ALJ Mattoon's order did not preclude ALJ Stuber from finding the claimant reached MMI in March 2002.
Finally, the DIME physician's determination that the industrial injury has not caused a particular medical condition is binding unless overcome by clear and convincing evidence. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Whether the claimant has overcome the DIME physician's opinions is a question of fact for resolution by the ALJ which must be upheld if supported by substantial evidence and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Based on this record, ALJ Stuber reasonably inferred that the claimant failed to overcome the DIME physician's opinion that the claimant's back pain is not the result of the industrial injury. Metro Moving Storage Co. v. Gussert, supra. Therefore, the ALJ did not err in denying the claim for medical benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated May 8, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed November 6, 2003 to the following parties:
Valerie Stassines, 2690 Sherman Ln., Pueblo, CO 81005
Albertson's, Inc., 1601 Highway 50 West, Pueblo, CO 81008
Lawrence D. Saunders, Esq., 125 W. "B" St., Pueblo, CO 81003 (For Claimant)
Benjamin E. Tracy, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondent)
BY: A. Hurtado