Opinion
W.C. No. 4-165-347
June 17, 1996
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) insofar as it denied her claim for temporary total disability benefits and ongoing medical benefits. The respondents seek review of the order insofar as it awarded medical impairment benefits based on an impairment of the whole person. We affirm.
The ALJ found that the claimant suffered from an occupational disease involving both upper extremities and her neck. The claimant was treated by Dr. Morgan who prescribed physical therapy and medication. On August 30, 1993, Dr. Morgan opined that the claimant had reached maximum medical improvement (MMI). Dr. Morgan stated that the claimant should probably seek lighter work and that she could expect "flare-ups" if she returned to her heavy pre-injury employment. Nevertheless, the claimant returned to her pre-injury employment, albeit in a restricted capacity.
After returning to work, the claimant experienced additional symptoms early in 1994. Her attorney referred her to Dr. Rook, who in turn referred her to Dr. Griffis. Dr. Griffis provided additional treatment in the form of medication and physical therapy, and "released" the claimant from treatment on August 1, 1994. At the hearing, Dr. Morgan opined that the treatment provided by Dr. Griffis amounted to "maintenance" care.
Dr. Griffis gave the claimant an impairment rating in December 1994. This rating was based upon impairment of claimant's upper extremities, as well as her cervical region. The ALJ combined these impairments and awarded benefits based on a whole person impairment of twenty-eight percent.
However, the ALJ denied the claim for temporary total disability benefits from August 29, 1993 until August 1, 1994. In this regard, the ALJ found that the claimant reached MMI on August 30, 1993, as stated by Dr. Morgan. The ALJ noted that, as of that date, "it was expected that her condition was flare with her return to work activities." The ALJ also stated that the claimant had not "presented sufficient evidence to indicate a need or justification for on-going medical benefits."
I.
On review, the claimant first contends that, because the respondents paid for the treatment provided by Dr. Griffis, the ALJ erred in denying the claim for temporary disability benefits subsequent to August 29. The claimant reasons that the respondents "accepted" Dr. Griffis as an authorized treating physician, and therefore, Dr. Griffis should determine the date of MMI under § 8-42-107(8)(b), C.R.S. (1995 Cum. Supp). The claimant also asserts that the respondents' payments to Dr. Griffis estop them from denying that Griffis is the authorized treating physician.
Under § 8-42-107(8)(b), the "authorized treating physician who has provided the primary care" makes the initial determination of MMI. A party seeking to dispute that determination must obtain an independent medical examination (IME). Colorado AFL-CIO v. Donlon, 914 P.2d 396 (Colo.App. 1995). The statute also provides that a hearing on MMI "shall not take place until the finding of the independent medical examiner . . . has been filed with the division."
In Story v. Industrial Claim Appeals Office, 910 P.2d 80 (Colo.App. 1995), the court of appeals interpreted § 8-42-107(8)(b) to mean that once the authorized treating physician has issued an opinion concerning MMI, a claimant may not seek a change of physician for the purpose of disputing the original treating physician's opinion concerning MMI. To the contrary, once the treating physician issues an opinion that the claimant has reached MMI, the claimant must follow the IME procedure if she wishes to challenge the treating physician's opinion and obtain additional temporary total disability benefits. However, the Story court went on to hold that the claimant may seek a change in the authorized treating physician after MMI for the purpose of obtaining ongoing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988).
Here, it is undisputed that on August 30, 1993 the claimant's only authorized treating physician was Dr. Morgan. Therefore, the fact that the claimant later received treatment from Dr. Griffis, and Dr. Griffis believed the claimant did not reach MMI until August 1, 1994, is irrelevant. Under § 8-42-107(8)(b), the ALJ was bound by Dr. Morgan's opinion that the claimant reached MMI on August 30, 1993, regardless of any conflicting opinion held by Dr. Griffis. Story v. Industrial Claim Appeals Office, supra.
The fact that the respondents paid for treatment provided by Dr. Griffis does not mean that they are "estopped" from asserting the position that claimant reached MMI on August 30, 1993. To the contrary, it was the respondents' position that Dr. Griffis provided "maintenance" care which was necessitated by a "flare-up" the claimant experienced after she returned to work. As indicated in Story v. Industrial Claim Appeals Office, supra, there is no inherent inconsistency between a determination that the claimant has reached MMI, and the provision of subsequent medical treatment designed to maintain the claimant's condition or relieve recurrent symptoms of the injury.
The claimant also argues that the ALJ erred insofar as she determined the date of MMI was August 30, 1993 "as per the two final admissions filed by the respondents." The claimant's argument notwithstanding, the ALJ was not relying on the admissions as establishing the date of MMI. To the contrary, it is apparent from the entirety of the order that the ALJ was relying on Dr. Morgan's opinion concerning MMI.
II.
The claimant next contends that the ALJ erred in denying the claim for temporary total disability benefits because it was proven that the claimant's condition worsened after August 30, 1993. In support of this assertion, the claimant again relies on evidence that Dr. Griffis provided treatment after August 30, 1993. We are not persuaded.
As stated, the provision of medical treatment after MMI does not necessarily represent a "worsening of condition" which would justify reopening. Story v. Industrial Claim Appeals Office, supra; § 8-40-201(11.5), C.R.S. (1995 Cum. Supp.). Indeed, Grover v. Industrial Commission, supra, is predicated on the principle that it may be foreseeable that a claimant will need post-MMI medical treatment for purposes of maintaining her condition or alleviating symptoms of the injury. See Grover v. Industrial Commission, 759 P.2d at 711.
Here, the ALJ determined that it was perfectly foreseeable that the claimant could expect "flare-ups" of her symptoms if she continued her pre-injury employment, and that medical treatment would be needed to alleviate those conditions. This finding is amply supported by the testimony of Dr. Morgan who stated that the treatment provided by Dr. Griffis was "maintenance" treatment. Therefore, the ALJ did not err in failing to find a worsened condition justifying reopening.
III.
The claimant's final contention is that the ALJ erred in denying Grover medical benefits subsequent to the May 8, 1995 hearing. In support of this contention, the claimant cites Dr. Morgan's opinion that the claimant may suffer flare-ups if she returns to work, as well as the opinion of Dr. Griffis that the claimant may need future medical treatment. We are not persuaded by these arguments.
A claimant's entitlement to ongoing medical benefits under Grover must be established at the time of the hearing on the final award of permanent disability. Grover v. Industrial Commission, supra; Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). As of that time, the claimant must present "substantial evidence" that future medical treatment will be reasonably necessary to "relieve the effects of the industrial injury or prevent future deterioration of the claimant's work-related condition." Stollmeyer v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1798, September 14, 1995).
The question of whether the claimant carried her burden of proof is one of fact for resolution by the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, it was for the ALJ to assess the weight and credibility of the medical evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, Dr. Morgan indicated that physical therapy and medication might be the best way to treat the claimant's "flare-ups" in the event she returned to her employment. However, he went on to state that the best "long run" solution would be for the claimant to obtain a different job. (Tr. p. 44).
By the time of the hearing, the claimant testified that her only treatment was a self-supervised program of home exercises. Further, the claimant quit her pre-injury employment in January 1994. (Tr. pp. 13, 21).
Under these circumstances, the ALJ could logically conclude that the claimant failed to establish the need for future medical treatment after the date of the hearing. Dr. Morgan's opinion concerning the need for future treatment was contingent on the claimant continuing her pre-injury employment. Since, by the date of the hearing, the claimant had discontinued that employment and was not receiving any active treatment, the ALJ could conclude that the claimant failed to meet her burden of proof concerning the need for additional treatment. Although some evidence, including the opinion Dr. Griffi's might have supported a contrary finding, we may not substitute our judgment for that of the ALJ concerning the weight of the evidence and the inferences to be drawn therefrom. Metro Moving and Storage Co. v. Gussert, supra.
Moreover, the fact that the claimant received "maintenance" care from Dr. Griffis after MMI, but before the date of the hearing, does not require a different result. As we have indicated, the issue is whether, on the date of the hearing concerning permanent disability, the claimant can prove a need for ongoing care. Although the provisions of maintenance care prior to the hearing might be relevant, it is not determinative. Cf. Landolt v. Scott Specialty Gases, Inc., W.C. No. 4-130-484, August 24, 1994 (prior to the determination of the claimant's permanent disability, the claimant is entitled to receive injury-related medical treatment if she demonstrates that such treatment is "reasonable and necessary").
IV.
The respondents contend that the ALJ erred in combining the scheduled and whole person impairments into a single whole person impairment. The respondents concede that this issue was resolved adversely to them in Mountain City Meat Company v. Industrial Claim Appeals Office, 904 P.2d 1333 (Colo.App. 1995), cert. granted, 95SC246, October 30, 1995. We must follow Mountain City Meat unless and until it is overturned by the supreme court. C.A.R. 35(f). Therefore, there was no error.
IT IS THEREFORE ORDERED that the ALJ's order, dated July 24, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Dona HalseyNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed June 17, 1996 to the following parties:
Heather Wood, 285 4th St., Calhan, CO 80808
Judy Roger Swanson d/b/a Americlean, 4435 Gatewood Dr., Colorado Springs, CO 80916
Colorado Compensation Insurance Authority, Attn: Brandee L. DeFalco, Esq. (Interagency Mail)
Kenneth J. Shakeshaft, Esq., Homburg Center Bldg., 559 E. Pikes Peak, Ste. 203, Colorado Springs, CO 80903 (For the Claimant)
By: ___________________________