Opinion
W.C. No. 4-674-582.
October 26, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated May 9, 2007, that denied ongoing maintenance medical benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988)( Grover medical benefits). We affirm.
The ALJ's pertinent findings of fact are as follows. The claimant sustained an admitted injury while working for the employer on May 7, 2005. The claimant felt a pop in her shoulder and pain across the biceps. A physician's assistant diagnosed a shoulder sprain with tendonitis of the shoulder and elbow. The claimant's testimony at hearing was consistent with the mechanism of injury described by the physician's assistant. The claimant had previously been injured while working for the City of Grand Junction (City) in 1998. In the claim against the City, the claimant was awarded compensation based upon a permanent medical impairment rating of sixteen percent of the whole person for injuries to her thoracic and cervical spine. The claimant failed to report her injury at the City to her treating physician Dr. Utt. On June 10, 2005, Dr. Utt noted that the claimant's complaints of a cervical-thoracic strain were slowing her recovery, even though her shoulder strain had largely resolved. Dr. Utt referred the claimant for a functional capacity evaluation and the therapist noted numerous inconsistencies throughout the evaluation that indicated the claimant was able to function safely at a much higher level than she demonstrated. The therapist also noted that the claimant did not mention the prior claim with the City. Dr. Utt referred the claimant to Dr. Scott who opined that the claimant had no ratable permanent impairment of the right shoulder and that her cervical symptoms preexisted her May 7, 2005 alleged injury and should not be treated nor rated as part of the May 7, 2005 injury. Dr. Utt placed the clamant at maximum medical improvement (MMI) as of July 10, 2006. Although he believed that the claimant sustained zero percent impairment from her injury at the employer, Dr. Scott rated the overall permanent medical impairment of the cervical and thoracic regions of her spine. Dr. Scott noted that the claimant failed to disclose to him that she had a previous impairment rating of those regions. Dr. Scott reviewed the impairment rating Dr. Sabin had given the claimant for her injury at the City. Dr. Scott then apportioned the claimant's present medical impairment and determined that the claimant's permanent impairment had increased by 11 percent since Dr. Sabin had rated her. Dr. Scott attributed this increase in permanent impairment to the natural progression of the claimant's condition from her injury at the City. However, the insurer filed a final admission of liability admitting liability for permanent partial disability benefits based on Dr. Scott's rating of 11 percent of the whole person. Dr. Scott recommended no further treatment for the claimant's right upper extremity and shoulder injury.
The ALJ credited Dr. Scott's opinion that the claimant's need for ongoing medications, epidurals, or facet injections was related to her progressive disease process and to the permanent medical impairment that resulted from her previous injury at the City. The ALJ found that there was no persuasive medical evidence showing that the claimant required ongoing medical treatment to cure and relieve the effects of her injury at the employer.
I.
On appeal, the claimant first contends that the ALJ erred in ruling that she did not suffer a cervical and thoracic injury on May 7, 2005. We disagree.
Dr. Scott in a report dated August 14, 2006 opined that there was no plausible mechanism of injury to the neck or thoracic spine from the alleged May 7, 2005 accident. Exhibit A at 13. Dr. Scott in the same report went on to state that it was more likely than not that her cervical spondylosis and symptoms pre-existed her May 7, 2005 injury and should not be treated or rated as part of the 2005 injury. Exhibit A at 13. In a later report dated October 6, 2006, Dr. Scott apportioned out Dr. Sabin's whole person impairment rating resulting from the claimant's injury while working for the City and assigned the claimant an eleven percent whole person impairment rating. Exhibit A at 2. Dr. Scott testified, however, that since he was asked to do an impairment rating he assigned one to the claimant even though he thought that no permanent injury had occurred. Tr. at 91.
The ALJ concluded, with record support, that the claimant failed to prove by a preponderance of the evidence that the recommended ongoing medical treatment was related to her injury at the employer. This finding is supported not only by the testimony of Dr. Scott but also by that of Dr. Utt, one of the claimant's treating physician. Dr. Utt stated that he shared Dr. Scott's "concerns about causality," and questioned how a "straightforward" shoulder strain had "evolved into such a complicated recovery requiring ongoing epidurals and facet injections." In this regard he noted that the claimant had a previous neck and upper back problem with an impairment rating as well as a settlement of her previous claim. Exhibit 4 at 51. Dr. Utt deferred to Dr. Scott on the issue of apportionment. Exhibit 4 at 51.
We must uphold the factual determinations of the ALJ if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Christie v. Coors Transp. Co., 919 P.2d 857, 860(Colo.App. 1995), aff'd 933 P.2d 1330 (Colo. 1997); see also City of Northglenn v. Eltrich, 908 P.2d 139 (Colo.App. 1995)(ALJ's decision may be set aside only if the ALJ's finding are not supported by the evidence), aff'd sub nom. Price v. Industrial Claim Appeals Office, 919 P.2d 207(Colo. 1996). Whether there is substantial evidence to support the ALJ's decision is a question of law, but the evidence must be viewed as a whole in the light most favorable to the prevailing party. City of Loveland Police Dep't v. Industrial Claim Appeals Office, 141 P.3d 943, 950 (Colo.App. 2006).
The claimant has set forth evidence contrary to the ALJ's finding. However, the existence of evidence, which, if credited, might permit a contrary result, affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). The ALJ's factual findings regarding the relatedness of the claimant's condition to her injury are supported by substantial evidence and by reasonable inferences from the factual record. Therefore, we must affirm the determination that the claimant's need for ongoing medical treatment was not proximately caused by her on-the-job injury.
II.
The claimant also argues that the ALJ erred in denying her request for Grover medical benefits because the respondents admitted for compensation based on an impairment rating that included the claimant's cervical and thoracic spine. The claimant further argues that the respondents filed a final admission admitting liability for this rating and by doing so conceded that the claimant's cervical spine and thoracic spine injuries were work-related conditions. The claimant also argues that because of the admission the respondents should not have been permitted to litigate the issue of relatedness, but could only challenge the reasonableness and necessity of the medical care.
We note initially that this argument was not raised by the claimant before the ALJ. See Claimant's Post Hearing Position Statement (April 6, 2007). See also Johnson v. Industrial Commission, 761 P.2d 1140 (Colo. 1988); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Therefore, we need not consider the argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
In any event, we perceive no error in this regard. The Colorado Court of Appeals has held that regardless of the filing of an admission insurers retain the right to dispute whether the need for medical treatment was caused by the compensable injury. See Hanna v. Print Expediters Inc., 77 P.3d 863 (Colo.App. 2003) (a general award of future medical benefits is subject to the employer's right to contest compensability, reasonableness, or necessity); Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997) (concerning a general admission for medical benefits); Williams v. Industrial Commission, 723 P.2d 749 (Colo.App. 1986). This principle recognizes that even though an admission is filed the claimant bears the burden of proof to establish entitlement to specific medical benefits. The mere admission that an injury occurred and that treatment is needed cannot be construed as a concession that all conditions and treatment that occur after the injury were caused by the injury. Cf. HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo.App. 1990) (filing of a general admission does not vitiate respondents' right to litigate disputed issues on a prospective basis); Hardesty v. FCI constructors Inc., W. C. No. 4-611-326 (July 07, 2005).
In Snyder v. Industrial Claim Appeals Office, supra, the court held that "in a dispute over medical benefits after the filing of a general admission of liability, an employer can assert, based on subsequent medical reports, that the claimant did not establish the threshold requirement of a direct causal relationship between the on-the-job injury and the need for medical treatment." 942 P.2d at 1339.
The respondents filed an admission for permanent impairment disability but in the same admission denied liability for Grover medical benefits. We disagree with the claimant's argument that the admission for compensation based on an impairment rating of the cervical spine was also an admission that any medical treatment recommended in the future was the liability of the respondents. Rather, as noted, the respondents were free to challenge any particular proposed medical treatment on any grounds, including that the treatment was not necessitated by the admitted injury. It follows that we perceive no error in the ALJ's allowing the respondents to litigate the cause of the need for the requested Grover medical benefits at the hearing set after the claimant's objection to the admission.
III.
The claimant also contends that the ALJ lacked jurisdiction to address the relatedness of the medical care because the Division-sponsored independent medical examination (DIME) she requested was pending at the time of the hearing. The claimant requested a DIME on March 5, 2007 and then cancelled it on April 13, 2007, after the March 20, 2007, hearing. The claimant contends that the ALJ lacked jurisdiction to grant or deny medical care based on a lack of causal connection with the work injury until the claimant had undergone the DIME or the DIME had been cancelled. The claimant also contends that absent a DIME the respondents could not raise the issue of relatedness of the claimant's cervical and thoracic spine conditions. Under the circumstances of this case, we disagree.
The DIME physician's opinion has no presumptive weight on the issue of Grover medical benefits. See Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). Regardless of whether a treating physician or the DIME physician recommended future medical treatment, the respondents were free to deny liability and place the burden on the claimant to prove by a preponderance of evidence that she needed future medical treatment. Canales v. Peak Contract Manufacturing Inc. W. C. No. 4-348-069 (August 12, 2003), aff'd, Canales v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1712 May 13, 2004) (not selected for publication).
Citing Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995) the claimant argues that absent a DIME, the ALJ did not have authority to address the issue of relatedness. The opinions of a DIME physician have only been given presumptive effect when expressly required by the statute. See Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844, 846 (Colo.App. 2000) (DIME opinion concerning causation need not be overcome by clear and convincing evidence where dispute involved the "threshold requirement" that the claimant establish a compensable injury). The claimant's reliance on Story is misplaced. In Story, the court held that the DIME physician's determination of MMI did not preclude a change of physician order where only Grover medical benefits were sought. Here, the issue before the ALJ was Grover medical benefits, and no challenge to MMI was made, as in Story. Therefore, in our opinion, the determination of the claimant's entitlement to Grover medical benefits was within the ALJ's jurisdiction.
IV.
The claimant also contends the ALJ violated the claimant's right to due process by ruling on the issue of the relatedness of medical benefits to the compensable injury. The claimant argues in this regard that the issue of relatedness was not an issue endorsed for hearing.
In general, procedural due process entitles the claimant to notice of the issues to be adjudicated and the evidence to be considered, as well as an opportunity to confront adverse witnesses and rebut evidence. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). Here, neither the application for hearing or the response to the application specifically listed the issue of relatedness, but instead generally listed the issue of medical benefits, authorized provider and whether the medical benefits were "reasonably necessary." However, at the commencement of the hearing counsel for the claimant stated, "I anticipate Respondents will argue that they're going to attempt to show that Claimant's need for Post MMI treatment is related to her prior claim". Tr. at 4. In addition, counsel for the claimant in direct examination elicited testimony from the claimant regarding her previous workers' compensation injury. This testimony was apparently intended to establish that the claimant was physically active in the interim between the two workers' compensation injuries and that the medical treatment now proposed was different from the treatment recommended following the first injury. Tr. at 16-17
The claimant also cross-examined the respondents' medical expert regarding the first workers compensation injury. Tr. at 77. The claimant's position statement argued that she had not received any treatment for her neck or mid back following the conclusion of her prior workers' compensation claim and generally contended that she was asymptomatic in her neck, mid-back and other areas of her body prior to this injury. The claimant did not argue at the hearing or in her position statement that the ALJ should not consider the issue of whether her need for medical treatment was related to the first or second workers' compensation claim.
We conclude that the issue was tried by consent of the parties. See Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo.App. 92, 554 P.2d 705(Colo.App. 1976); Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987). Further, we have previously held that a showing that the compensable injury caused the need for treatment is a threshold prerequisite to the further showing that treatment is reasonable and necessary and the general endorsement of the issue of "medical benefits" might reasonably include a number of other issues, including "relatedness." Bekkouche v. Riviera Electric, W.C. No. 4-514-998 (May 10, 2007). Under these circumstances, we find no violations of the claimant's due process protections. See Robbolino v. Fischer-White Contractors, 738 P.2d 70, 72 (Colo.App. 1987) (objection to timeliness of challenge to wage determination waived when party presented corresponding evidence and failed to object at hearing); Yakovich v. Dakyton Hudson Corp/Target Stores, W.C. No. 4-638-044 (May 09, 2007).
V.
The claimant finally contends that the ALJ erred in failing to address the issue whether the claimant was entitled to temporary partial disability from May 7, 2005 through January 27, 2006. It does not appear from the claimant's brief in support of her petition to review that she disputes the amount of money owed for the period of temporary partial disability. Instead, the claimant argues only that the ALJ erred in failing to address whether she was entitled to benefits for the period in question.
The ALJ noted that by the time of the hearing the insurer had filed a final admission of liability dated February 8, 2007, which resolved the outstanding issue regarding temporary partial disability benefits. Findings of Fact at 6, ¶ 18. The record contains the February 8, 2007 final admission, which admitted for temporary partial disability from May 7, 2005 through January 27, 2006. Exhibit G at 50. The respondents in their brief in opposition to the petition to review acknowledge that they admitted for the temporary partial disability benefits sought by the claimant.
By filing the February 8, 2007 final admission of liability the insurer voluntarily accepted responsibility for the payment of the temporary partial disability benefits in question. Section 8-43-203(2)(d), C.R.S. 2007, provides that "if any liability is admitted, payments shall continue according to admitted liability." We agree with the ALJ that after the filing of the February 8, 2007, final admission of liability there was no legitimate controversy remaining as to the claimant's entitlement to temporary partial disability for the period requested by the claimant.
IT IS THEREFORE ORDERED that the ALJ's order dated May 9, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
MELANIE WILKINSON, CO, (Claimant).
WAL-MART STORES, INC., Attn: ELLEN POEN, CO, (Employer).
AMERICAN HOME ASSURANCE CO., Attn: GENNY SARCOXIE, C/O: CLAIMS MANAGEMENT INC., BENTONVILLE, AR, (Insurer). KILLIAN, GUTHRO JENSEN, P.C., Attn: JOANNA C. JENSEN, ESQ./AMY EATON FITZPATRICK, ESQ., CO, (For Claimant) CLIFTON, MUELLER BOVARNICK, P.C., Attn: JAMES R. CLIFTON, ESQ., CO, (For Respondents).