Opinion
W.C. No. 4-200-716
May 9, 2000
FINAL ORDER
The respondents seek review of a Supplemental Order of Administrative Law Judge Friend (ALJ) which awarded ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). The respondents contend the claimant failed to raise the issue in a timely fashion. In any event, the respondents assert the Grover medical benefits should have been apportioned. We affirm.
The claimant sustained a compensable injury in November 1993, and she eventually applied for a hearing on the issues of permanent total disability and Grover medical benefits. In a summary order dated August 28, 1998, the ALJ awarded permanent total disability benefits, and apportioned those benefits based on a 1992 nonindustrial auto accident. The summary order expressly reserved "other issues not resolved."
In October 1998, the respondents applied for a hearing on the issue of "Apportionment of Grover Meds." In their position statement, the respondents asserted that the claimant waived the right to Grover medical benefits by failing to litigate the issue at the hearing on permanent total disability. The respondents also presented expert medical evidence that the claimant's ongoing need for medications was, at least partially, attributable to the claimant's preexisting psychiatric problems and the 1992 auto accident.
However, in the Supplemental Order, the ALJ rejected the argument that the claimant failed timely to raise the issue of Grover medical benefits. The ALJ found that the claimant requested Grover medical benefits at the time she applied for the hearing on permanent total disability benefits, but failed to litigate the issue because the respondents were, at the time of the hearing, paying medical benefits without objection. Further, the ALJ noted that the August 28 summary order preserved issues not litigated, including Grover medical benefits.
The ALJ also denied the respondents' request for apportionment of the cost of medications which the claimant received prior to the March 1999 hearing. In so doing, the ALJ credited the testimony of the claimant's treating physician that the medications were necessitated by the industrial injury. However, the ALJ noted that the respondents remain free to dispute future claims for medical benefits on grounds that the need for treatment is not related to the industrial injury. Finally, the ALJ stated that the statute does not provide for "the apportionment of future medical benefits."
I.
On review, the respondents contend the ALJ erred in awarding Grover medical benefits because the claimant failed to litigate the issue at the time of the hearing on permanent total disability. We reject this argument.
It is true that a claimant seeking Grover medical benefits must raise the issue in connection with the claim for permanent disability benefits. Grover v. Industrial Commission, 759 P.2d at 711, 712. At such time the claimant must introduce substantial evidence that future medical treatment will be reasonably necessary. Milco Construction v. Cowan, 860 P.2d 539, 541 (Colo.App. 1992). In light of these cases, we have previously held that a claimant's right to seek Grover medical benefits "is considered waived if not raised at the time permanent partial disability is determined." Rodriguez v. Russell Stover Candies, W.C. No. 3-111-475 (March 2, 1998).
However, as the ALJ recognized, this is not a case in which the claimant failed to assert a right to Grover medical benefits at the time of the hearing on permanent total disability benefits. Instead, the claimant elected not to litigate the issue contemporaneously with the issue of permanent total disability benefits because the respondents were already providing ongoing medical treatment without objection. Moreover, the ALJ's summary order recognized that the claimant's entitlement to Grover medical benefits might yet be litigated, and reserved the issue for future determination. Thus, we do not view the ALJ's August 28 summary order as foreclosing the issue of Grover medical benefits. See Brown Root Inc. v. Industrial Claim Appeals Office, 833 P.2d 780 (Colo.App. 1991) (order granting temporary disability benefits, but reserving jurisdiction over other issues, did not close the claim so as to require a petition to reopen for additional benefits).
Neither does the claimant's conduct in this case indicate an implied waiver of the right to claim Grover medical benefits. See Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988) (waiver must be voluntary, knowing and intelligent). Here, the respondents continued to pay medical benefits after maximum medical improvement, and, at the time of the hearing on permanent total disability, did not indicate to the claimant that they would later contest such benefits. In both of the cases cited by the respondents, Rodriguez v. Russell Stover Candies, supra, and Williams v. Black Roofing, Inc., W.C. No. 4-126-533 (November 26, 1997), the claimants failed to assert any claim for Grover medical benefits the time of the hearings on permanent disability. Consequently, these cases are not contrary to the result reached here.
II.
Neither do we perceive any error in the ALJ's failure to "apportion" the medical benefits based on the claimant's 1992 nonindustrial injury. The ALJ expressly found, based on the testimony of the treating physician, that the cause of " all of the [the claimant's] treatment to the date of the last hearing is related to [the] industrial injury." (Emphasis added); (Conclusion of Law B). Although there was conflicting evidence, the ALJ resolved the conflicts against the respondents. We may not interfere with the ALJ's resolution of conflicts in the evidence and his credibility determinations. Section 8-43-301(8), C.R.S. 1999; Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999).
Thus, we do not reach the issue of whether apportionment of medical benefits is legally permissible. Here, the ALJ determined as a matter of fact that no basis for apportionment exists because the industrial injury was the sole cause of the need for treatment, and that finding is supported by the evidence. As the ALJ noted, the respondents remain free to contest the cause of the need for future treatments. Grover v. Industrial Commission, 759 P.2d at 712.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order dated August 10, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Robert M. Socolofsky
NOTICE
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. 1999. 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 May 9, 2000 to the following parties:
Mitzie Tadlock, 155 S. Zang Way, #106, Lakewood, CO 80228
Gold Mine Casino, 17301 W. Colfax Ave., #275, Golden, CO 80401-4800
Claire Bennett, Reliance Insurance Company, 7600 E. Orchard Rd., #310S, Englewood, CO 80111
Peter H. McGuire, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Karen R. Wells, Esq., and Benjamin E. Tracy, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy