Opinion
W.C. No. 4-785-790.
September 9, 2011.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) dated April 27, 2011 that ordered the respondent to pay for the cost of recommended surgery. We affirm.
This matter proceeded to hearing to determine whether the respondent should be liable for surgery recommended by three physicians, but opposed by two other physicians. According to the ALJ's findings of fact, the claimant injured his low back on December 2, 2008 in an admitted accident. He underwent conservative care, but it provided no permanent relief of his symptoms. Dr. Jatana reported that the claimant was a good candidate for a hybrid one-level disc arthroplasty with a one-level "ALIF" or a two-level disc arthroplasty. Dr. Janssen and Dr. Rafferty agreed that surgery for the claimant was indicated. Dr. Rauzazino and Dr. Reiss, on the other hand, did not recommend surgery. However, Dr. Reiss recommended a psychological evaluation if the claimant pursued surgery. The ALJ credited the opinions of Drs. Jatana, Janssen, and Rafferty and stated that he had considered the Medical Treatment Guidelines (Guidelines). The ALJ determined that the surgery options were reasonably necessary to cure and relieve the claimant from the effects of his injury, and that the claimant should undergo a psychological evaluation before proceeding with whichever surgery the claimant and Dr. Jatana determined to undertake.
The respondent asserts that the ALJ's findings reflect a deviation from the Guidelines that require the ALJ to articulate compelling reasons for the deviation. The respondent therefore argues that it is necessary to remand this matter to the ALJ for additional findings of fact and conclusions of law. We find no basis for remanding this matter.
The Guidelines are contained in W.C. Rule of Procedure 17, 7 Code Colo. Reg. 1101-3, and provide that health care providers shall use the Guidelines adopted by the Director of the Division of Workers' Compensation. See § 8-42-101(3.5)(a)(II), C.R.S. (Director shall promulgate rules establishing system for determination of medical treatment guidelines). In Hall v. Industrial Claim Appeals Office, 74 P.3d 459 (Colo. App. 2003), the court noted that the Guidelines are to be used by health care practitioners when furnishing medical aid. See § 8-42-101(3)(b), C.R.S. (medical treatment guidelines shall be used by health care practitioners for compliance with section).
The Guidelines are regarded as accepted professional standards for care under the Workers' Compensation Act. Rook v. Industrial Claim Appeals Office, 111 P.3d 549 (Colo. App. 2005). It is appropriate for an ALJ to consider the Guidelines in deciding whether a certain medical treatment is reasonable and necessary for the claimant's condition. See Deets v. Multimedia Audio Visual, W. C. No. 4-327-591 (March 18, 2005) (medical treatment guidelines are a reasonable source for identifying the diagnostic criteria). The ALJ's consideration of the Guidelines may include deviations from them where there is evidence justifying the deviations. Logiudice v. Siemans Westinghouse, W.C. No. 4-665-873 (January 25, 2011). However, we have previously noted the lack of authority mandating that an ALJ award or deny medical benefits based on the Guidelines. Thomas v. Four Corners Health Care, W.C. No. 4-484-220 (April 27, 2009); see also Burchard v. Preferred Machining, W.C. No. 4-652-824 (July 23, 2008) (declining to require application of medical treatment guidelines for carpal tunnel syndrome in determining issue of PTD); Jones v. T.T.C. Illinois, Inc., W.C. No. 4-503-150 (May 5, 2006), aff'd Jones v. Industrial Claim Appeals Office No. 06CA1053 (Colo. App. March 1, 2007) (not selected for publication) (it is appropriate for the ALJ to consider the guidelines on questions such as diagnosis, but the guidelines are not definitive).
Although the only express reference in the ALJ's decision to the Guidelines is the ALJ's representation that he considered them, it is apparent from the ALJ's findings that he evaluated the need for surgery in the context of medical issues tied to the Guidelines. The ALJ considered the opinions of Dr. Rauzzino, who felt surgery was not reasonable because the claimant had multiple levels of disc disease and his spine pathology was not limited to one level in his lumbar spine. Dr. Rauzzino's written report states that the Guidelines do not support an artificial disc replacement because they indicate such treatment for only one level and require all pain generators to be adequately defined and treated. Exhibit O at 48. The ALJ made detailed findings from a response to Dr. Rauzzino's assertions contained in the written report of Dr. Rafferty. Dr. Rafferty stated, and the ALJ found, the following: "Although it is true that he has multi-level degenerative changes, there is insufficient evidence that more than two of these levels are pain generators. In addition, it is my opinion that his pain generators have been adequately treated even though treatment has not provided him with a satisfactory outcome." The ALJ also quoted Dr. Rafferty's opinion that "there is no evidence that he has symptomatic disc disease or facet arthropathy above the L4-L5 level at this time." Exhibit 6. The parties presented the ALJ with conflicting interpretations of the Guidelines and the need for the recommended surgical procedures. It is apparent that the ALJ was satisfied by the opinions of physicians he found credible that the recommended surgical procedures were sufficiently indicated by medical standards to be found reasonable and necessary.
The respondent further asserts that the ALJ's determination is contrary to FDA regulations. The source of this contention appears to be the written report of Dr. Reiss, indicating that artificial disc replacements are currently approved for only one level placement, although Dr. Reiss recognized that some surgeons perform multiple levels. Exhibit N at 46. However, the ALJ also credited the opinions of Dr. Janssen, who responded that "[t]he FDA does not govern the practice of medicine, and the FDA does not approve surgical procedures. . . . I was actively involved in the clinical trials for both one-level as well as two-level, and have had extensive experience in managing patients such as [claimant]." Exhibit 5.
We may not reweigh the evidence before the ALJ. Moreover, the ALJ's findings are based on substantial evidence and are sufficient to support the award of medical benefits, notwithstanding evidence from which contrary inferences could be made. Section 8-43-301(8), C.R.S.; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993).
IT IS THEREFORE ORDERED that the ALJ's order dated April 27, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_________________________ John D. Baird
_________________________ Dona Rhodes
JEFF NUNN, 50 SOUTH 13TH AVENUE, BRIGHTON, CO, (Claimant), LAW OFFICE OF VINCENT M. BALKENBUSH, LLC, Attn: VINCENT M. BALKENBUSH, ENGLEWOOD, CO,(For Claimant), RITSEMA LYON, PC, Attn: LYNN P. LYON, DENVER, CO,(For Respondents).
GALLAGHER BASSETT SERVICES, INC., Attn: JENNIFER GREEN, ENGLEWOOD, CO, (Other Party).