Opinion
W.C. No. 4-540-459.
May 20, 2005.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Klein (ALJ). The respondents contend the evidence does not support the ALJ's finding that the need for a surgical fusion of the lumbar region is causally related to the claimant's April 2002 industrial injury. The respondents also argue that if the surgery is compensable the ALJ erred in failing to apportion liability for the surgery based on pre-existing non-industrial back problems. The respondents also challenges certain evidentiary rulings. Finally, the respondents contend the ALJ erred in limiting the witness fees to be paid to their medical expert. We dismiss the petition to review without prejudice as it pertains to the witness fees. Otherwise, we affirm the ALJ's order.
The claimant sustained a compensable back injury on April 13, 2002, when she was "tackled" by a fourteen year old resident at the employer's residential facility. Subsequently, it was recommended that the claimant undergo a spinal fusion from L3 or L2 to S1. The issues in the case were whether, and to what extent, the surgery is a compensable consequence of the April 2002 injury.
The ALJ found that the claimant suffered significant non-industrial back injuries prior to the April 2002 industrial injury. The claimant was involved in a motor vehicle accident (MVA) in 1998 which resulted in three surgeries including an "IDET procedure" at L3-4, a microdiscectomy at L4-5, and an L4-5 fusion. In April 2001 the claimant was involved in a second MVA and underwent a "decompression" at L3-4. The L3-4 disc again ruptured on September 6, 2001, when the claimant was leaning forward. A fifth surgery was performed on September 12, 2001. According to the ALJ, the treating physician released the claimant to "full duty" on December 11, 2001.
Crediting the claimant's testimony, the ALJ found that the claimant returned to work after she was released in December 2001. Although the claimant "did not feel perfect," she was able to function at home and at work, and ride her bike for up to fifteen miles per day. However, after the April 2002 industrial injury, the claimant has been unable to return to work.
The claimant was treated conservatively after the April 2002, but because her symptoms persisted she underwent an MRI on July 10, 2002. The MRI was read by a treating physician, Dr. Corenman, as evidencing a right sided disc herniation at L3-4. Dr. Corenman described the herniation as "recurrent" and probably "acute." In October 2002, Dr. Wong recommended that the claimant undergo a spinal fusion from L3 or L2 to S1, but the claimant opted for the implantation of a spinal stimulator. This procedure was ultimately unsuccessful in mitigating the claimant's symptoms, and the claimant now seeks the spinal fusion first recommended by Dr. Wong, and currently endorsed by Dr. Corenman and Dr. Beard.
The ALJ credited the opinion of the claimant's current treating physician, Dr. McLaughlin, that the claimant's need for the "surgical intervention" at L3-4 is the result of a herniated disc caused by the April 2002 industrial injury. The ALJ also found that the fusion of levels other than L3-4 is "necessary to the success of the L3-4 fusion." Therefore, the ALJ ordered the respondents to pay for the costs associated with the recommended surgery. The ALJ also denied the respondents' request to apportion liability for the surgery, finding that because there was no prior industrial injury apportionment is not proper.
I.
On review, the respondents first contend that substantial evidence does not support the ALJ's finding that the need for surgery at L3-4 is causally-related to the industrial injury of April 2002. The respondents argue the ALJ was compelled to find the need for surgery was caused by the claimant's prior back injuries, and that the disc herniation revealed by the July 2002 MRI was not a "new finding." We reject this argument.
The claimant was required to prove by a preponderance of the evidence that the L3-4 herniation was proximately caused by an injury arising out of and in the course of the employment. Section 8-41-301(1)(c), C.R.S. 2004. The question of whether the claimant proved causation is one of fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo.App. 1999). Where the parties present conflicting expert medical opinion on the issue of causation it is for the ALJ to assess the weight and credibility of such evidence. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The respondents' argument that the July 2002 MRI was not properly read by Dr. Corenman is without merit. As the ALJ found, Dr. Corenman reviewed the MRI and opined that it showed a recurrent disc herniation of acute origin. Because Dr. Corenman performed the 2001 back surgeries, the ALJ reasonably credited his opinion that the July 2002 MRI represented a new finding, not a finding which was present in earlier MRI films. Moreover, Dr. Corenman's opinion was corroborated by Dr. McLaughlin, and supported by the claimant's testimony concerning her symptoms before and after the April 2002 injury. (Conclusion of Law 4). While the respondents presented some evidence, including expert opinion, which might support a different result, that fact affords no basis for relief on appeal. The ALJ resolved the conflicts against the respondents and we may not interfere with that determination. Cordova v. Industrial Claim Appeals Office, supra.
II.
The respondents next contend the ALJ erred in failing to apportion liability for the surgery between the claimant's preexisting non-industrial conditions and the April 2002 industrial injury. The respondents argue that, contrary to the ALJ's holding, such apportionment was recently sanctioned by the Court of Appeals decision in Duncan v. Industrial Claim Appeals Office, 107 P.3d 999 (Colo.App. 2004). We disagree with the respondents' that Duncan authorizes apportionment of medical benefits to a preexisting non-industrial condition where that condition is aggravated by, accelerated by, or combines with an industrial injury to produce the need for treatment.
Few principles are more fundamental to the Workers' Compensation Act of Colorado (Act) than the rule that "this state does not distinguish between disabilities that are the result of employment-related aggravation of pre-existing conditions and those that are not." Thus, where a "pre-existing condition is aggravated by an employee's work, the resulting disability is a compensable industrial disability." Subsequent Injury Fund v. Thompson, 793 P.2d 576, 579 (Colo. 1990). A similar expression of the same principle is that the "employer must take the employee as it finds him so that the employer is responsible for any increased disability resulting to an employee from a pre-existing weakened condition." See Cowin Co. v. Medina, 860 P.2d 535, 538 (Colo.App. 1992). At other times our courts stated the rule that a pre-existing condition or disease "does not disqualify a claim if the employment aggravates, accelerates, or combines with the disease or infirmity to produce the disability for which workers' compensation is sought." H H Warehouse v. Vicory, 805 P.2d 1167, 1169 (Colo.App. 1990).
We, like the ALJ, do not read Duncan v. Industrial Claim Appeals Office, supra, as initiating a new rule of law which permits the apportionment of medical expenses to non-industrial conditions where the industrial injury combines with those conditions so as to cause the need for treatment. As Duncan itself recognizes, the prior cases allowing apportionment of medical expenses involve situations where the claimant sustained successive industrial injuries and those injuries actively contributed to the claimant's current need for treatment. University Park Care Center v. Industrial Claim Appeals Office, 43 P.3d 637 (Colo.App. 2001); State Compensation Insurance Fund v. Industrial Claim Commission, 697 P.2d 807 (Colo.App. 1985). It is significant that in University Park Care Center one of the "industrial injuries" which provided the basis for apportionment consisted of an occupational disease resulting from the "combination" of the claimant's "work as a nurse and the natural aging process." 43 P.3d at 640. Similarly, in Duncan the first industrial injury which formed the basis for apportionment "developed from a combination of the natural aging process and a 1977 industrial injury." 107 P.3d at 1000. Thus, in our opinion, Duncan should be read as holding that the mere presence of a non-industrial factor, such as the "natural aging process," does not prohibit apportionment of medical expenses if the non-industrial factor is an element of a compensable industrial injury by way of aggravation, acceleration or combination with industrial factors. Duncan merely holds that "the fact aging is a factor does not preclude apportionment." 107 P.3d 999 (Colo.App. 2004). The case does not hold that all pre-existing non-industrial conditions which contribute to a need for treatment are subject to apportionment.
It follows that we disagree with the respondents that the ALJ erred by failing to apportion between non-industrial pre-existing causes of the claimant's need for fusion surgery and the April 2002 industrial injury. As the ALJ stressed in the order, there was no proposal to perform a multi-level fusion of the claimant's back until after the April 2002 injury. However in October 2002 Dr. Wong opined that such surgery was appropriate. Moreover, when Dr. Corenman released the claimant in December 2001 he noted the presence of a pseudoarthrosis at L4-5, but stated the claimant was "not a candidate for any major reconstruction surgery" and advised her that "she will not become paralyzed or have any significant increased pathology."
The claimant argues that because the April 2002 injury did not cause injury to some of the spinal levels at which the fusion will be performed surgery on these levels is not a "compensable" consequence of the April injury. However, the ALJ determined as a matter of fact that the April 2002 injury necessitates the surgical intervention at L3-4, and that such intervention requires treatment (fusion) of the claimant's pre-existing spinal defects. (Finding of Fact 29). Thus, this case is analogous to H H Warehouse v. Vicory, supra, where the court held that because the evidence supported a finding that the industrial injury accelerated the claimant's pre-existing cancer the respondents were liable for the "medical expenses connected with the amputation of the claimant's arm and his extensive cancer treatment." 805 P.2d 1167.
Finally, the respondents argue that Finding of Fact 2 is erroneous insofar as it states that Dr. Corenman released the claimant to "full duty" on December 11, 2001. Assuming, arguendo, that this finding is not supported by the evidence, it was not prejudicial . As shown by the remainder of Finding of Fact 2 and Finding of Fact 3, the ALJ was fully aware of the residual effects of the claimant's non-industrial back injuries prior to April 2002. What was significant to the ALJ was that the claimant was able to return to work after December 2001, but was not able to return to work after April 13, 2002. Thus, the reference to a release to "full duty" did not influence the claimant's substantial rights, even if the reference was erroneous. Section 8-43-310, C.R.S. 2004.
III.
The respondents next contend the ALJ erred in excluding a medical report which they submitted in September 2004, after the initial hearing. The report is from a radiologist (Dr. Seibert) and is based on a comparison of MRI films taken before April 2002 and the MRI of July 10, 2002. Dr. Seibert opines that the claimant did not sustain an acute herniation as reported by Dr. Corenman. Essentially, the respondents argue the ALJ should have admitted the report because it rebuts a written report of Dr. McLaughlin, dated June 25, 2004, which relies on Dr. Corenman's interpretation of the July 2002 MRI. We find no error.
Although Dr. Seibert's medical report was not timely exchanged with claimant's counsel under the requirements of Rule of Procedure VIII (I)(1), 7 Code Colo. Reg. 1101-3 at 30, the ALJ had discretion to admit the report for good cause shown. Of course the ALJ had wide discretion in determining whether good cause was shown. Factors to be considered include whether the evidence could be outcome determinative, the time and expense to the claimant if the evidence is admitted, and whether the respondents exercised due diligence to obtain the evidence and exchange it in a timely fashion. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo. 1991); Dee Enterprises v. Industrial Claim Appeals Office, 89 P.3d 430 (Colo.App. 2003); IPMC Transportation Co. v. Industrial Claim Appeals Office, 753 P.2d 803 (Colo.App. 1988). Because determination of the issue is discretionary, we may not interfere with the ALJ's decision to exclude the report unless it is beyond the bounds of reason, as where it is unsupported by the evidence or contrary to law. See Pizza Hut v. Industrial Claim Appeals Office, 18 P.3d 867 (Colo.App. 2001).
Here, we perceive no abuse of discretion. The report in question was procured after the conclusion of the regular hearing. Although the respondents argue it was obtained in response to Dr. McLaughlin's June 25 report, which the ALJ admitted at the hearing, this argument is not persuasive. The question of whether the April 2002 industrial injury caused the L3-4 disc herniation is central to the case. The ALJ could plausibly conclude that the centrality of this issue must have been apparent to the respondents well before the hearing, particularly in light of Dr. Corenman's report of July 23, 2002, suggesting a link between the industrial injury and a "recurrent disc herniation" at L3-4 as shown by the July MRI. Indeed, the report of the respondents' medical expert, dated April 26, 2004 (Respondents' Exhibit GGG), addresses what inferences can or should be drawn from the July MRI. In light of these facts, the ALJ could plausibly conclude that the respondents should have recognized the need for Dr. Seibert's report prior to the hearing and procured it in a timely fashion. Moreover, the ALJ was persuaded that the claimant received Dr. McLaughlin's June 25 report from the respondents, and were therefore aware of the report before the claimant. (Tr. P. 12).
Further, the ALJ could consider the time and expense to the claimant had the report been admitted. Presumably, if the report had been admitted the ALJ would have been required to grant the claimant permission to depose Dr. Seibert and/or procure rebuttal evidence. Although the report was potentially "outcome determinative" on the issue of causation, we cannot say this factor alone is, as a matter of law, decisive. This is particularly true since Dr. Seibert was not endorsed as a witness, and the respondents waited until after the hearing to seek his opinion and obtain the report. This is not a case, such as Delaney v. Industrial Claim Appeals Office, 30 P.3d 691 (Colo.App. 2000), where a party sought to procure evidence in a timely fashion but was prevented from doing so by factors outside the party's control.
Citing C.R.E. 703 the respondents also argue that the ALJ erred in striking references to Dr. Seibert's report contained in the deposition testimony of the respondents' medical expert. The ALJ struck such references because he found Dr. Seibert's report was inadmissible under Rule VIII. (Pre-Hearing Conference Order, Part II).
The respondents' argument notwithstanding, Rule 703 states that "facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect." Similarly, C.R.E. 403 permits the exclusion of relevant evidence if its probative value is substantially outweighed "by the danger of unfair prejudice" or "considerations of undue delay." Here, we understand the ALJ to have determined that it would be unfair to the claimant and invite undue delay if the respondents were permitted to introduce Dr. Seibert's inadmissible findings through the testimony of the respondents' expert. We perceive no abuse of discretion in that ruling.
IV.
The respondents next contend the ALJ erred in granting the claimant's motion to restrict the witness fees paid to the respondents' medical expert. The respondents argue the fee schedule, currently contained in Rule of Procedure XVIII (F)(4), 7 Code Colo. Reg. 1101-3 at 112-113, cannot be construed to preclude the respondents from negotiating whatever witness fees they wish to pay. Further, the respondents assert that to construe the rule otherwise would be inconsistent with § 8-42-101(3)(a)(I), C.R.S. 2004. Finally, the respondents assert the claimant does not have standing to raise the issue of fees to be paid to the respondents' expert, and that the claimant did not timely raise the issue. We conclude there is no final order with respect to this issue.
In the Pre-Hearing Conference Order dated October 26, 2004, the ALJ considered the claimant's motion to limit the fees paid to the respondents' medical expert. The ALJ ruled the claimant has standing to raise the issue because "she is an intended beneficiary of the act." Further, the ALJ stated the expert's fees are governed by the fee schedule and there is no independent right to contract outside the schedule. The ALJ ordered that the fees be "limited" to the fee schedule and directed the expert to "provide an accounting to claimant with delineation between deposition testimony, testimony preparation, report preparation, and travel." The accounting was to be delivered to the claimant by November 17, 2004.
Section 8-43-301(2), C.R.S. 2004, provides that a party dissatisfied with an order may file a petition to review concerning an "order which requires any party to pay a penalty or benefits or denies the claimant any benefit or penalty." Orders which do not meet one of these criteria are not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). In order to be reviewable an order must finally resolve an entire claim for relief, and determine the amount of any benefit or penalty to be paid. United Parcel Service, Inc. v. Industrial Claim Appeals Office, 988 P.2d 1146 (Colo.App. 1999); Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999). Further, procedural rulings are generally not considered to be final and reviewable. Reed v. Industrial Claim Appeals Office, 13 P.3d 810 (Colo.App. 2000).
Here, the ALJ's order does not finally resolve the issue of the fees to be paid to the respondents' medical expert. To the contrary, the order requires an accounting to the claimant, and apparently contemplates additional litigation should the accounting produce some disagreement concerning the fees to be paid. Thus, the respondents' petition to review must be dismissed without prejudice insofar as it addresses the issue of the expert witness fee. See Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989) (order may be partially final and partially interlocutory).
IT IS THEREFORE ORDERED that the respondents' petition to review is dismissed without prejudice insofar as it concerns the issue of expert witness fees.
IT IS FURTHER ORDERED that the ALJ's order dated December 29, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Kathy E. Dean
Christina A. Weber, Grand Junction, CO, Shiloh House, Littleton, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Joanna C. Jensen, Esq., Grand Junction, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).