Opinion
W.C. No. 4-665-873.
January 25, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 2, 2010, that denied the claimant's request for authorization of a cervical spine epidural steroid injection (ESI). We affirm.
The claimant sustained an admitted industrial injury to his neck on October 21, 2005. On July 30, 2009 Dr. Vilims noted continued cervical spine pain and recommended an ESI at C6-7, or C7-T1. On August 12, 2009 Dr. Stieg reexamined the claimant and indicated that the claimant did not need the ESI at that time. On September 9, 2009 Dr. Stieg reexamined the claimant who desired to avoid an ESI and Dr. Stieg agreed with that for the "time being." On September 30, 2009 Dr. Stieg reexamined the claimant and requested that the insurer authorize the ESI. On October 27, 2009 Dr. DiSanto performed a medical record review for the insurer. Dr. DiSanto recommended denial of the requested ESI because it exceeded the Colorado Medical Treatment Guidelines (Guidelines). Dr. Stieg testified that the Guidelines were not "evidence-based" because the committee charged with writing them had not performed an exhaustive review of the medical literature. However, the ALJ denied and dismissed the request for the ESI.
The claimant brings this appeal contending that the ALJ erred in denying the requested ESI. As we understand the claimant's arguments he contends that the ALJ applied an incorrect standard of proof in deciding the issue of the claimant's entitlement to the requested medical benefit. The claimant argues that the ALJ required him to present a "compelling" reason to deviate from the Guidelines and thus the burden of proof, imposed by the ALJ, for obtaining medical treatment under § 8-42-101 was not a preponderance of the evidence. We are not persuaded that the ALJ made an error of law by using an incorrect standard of proof.
Section 8-42-101(1), C.R.S., requires the employer to provide medical benefits to cure or relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo. App. 1997). Consequently, compensability of the requested medical treatment is dependent on proof that the treatment is reasonably necessary to cure and relieve the effects of the industrial injury. See Snyder v. Industrial Claim Appeals Office, supra. Because the claimant bears the burden to prove his entitlement to benefits, it was the claimant's burden to prove by a preponderance of evidence that the requested treatment was reasonably necessary to cure and relieve the effects of the industrial injury. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). The question whether medical treatment is reasonable and necessary to cure and relieve the effects of the injury is one of fact for the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). We must uphold the ALJ's resolution of factual issues if it is supported by substantial evidence. § 8-43-301(8), C.R.S.
Here, the ALJ found that the rationale offered by Dr. Vilims for the injections was contrary to the approved use set forth in the Guidelines and was unreasonable. The ALJ noted that the Division recognizes that there may be deviations from the Guidelines but Dr. Vilims and Dr. Stieg did not offer justification for a deviation. The ALJ determined that the Guidelines provide the standard for determining the reasonable necessity of a medical procedure absent some good reason to deviate from them and here no compelling reason had been presented. The ALJ concluded that the claimant had failed to prove by a preponderance of the evidence that a ESI was reasonably necessary to cure or relieve the effects of the admitted work injury.
The Director of the Division of Workers' Compensation (Division) promulgated the "medical treatment guidelines and utilization standards." City of Manassa v. Ruff 235 P.3d 1051 (Colo. 2010). The Division's medical treatment guidelines were established by the Director pursuant to an express grant of statutory authority. Section 8-42-101(3.5)(a)(II), C.R.S. The Division's medical treatment guidelines are regarded as the accepted professional standards for care under the Workers' Compensation Act (Act). Rook v. Industrial Claim Appeals Office 111 P.3d 549 (Colo. App. 2005). The guidelines are to be used by health care practitioners when furnishing medical aid under the Act. Section 8-42-101(3)(b), C.R.S.; Hall v. Industrial Claim Appeals Office 74 P.3d 459 (Colo. App. 2003).
We have reviewed the ALJ's order and do not believe that the ALJ viewed the Guidelines as creating a new legal standard defining the claimant's burden to prove entitlement to a medical procedure. Rather, we believe that the ALJ referred to the Guidelines as an evidentiary tool which accurately summarizes the medically accepted criteria for the use of ESI as an accepted intervention for patients who have pain affected by activity and annular tears verified by appropriate imaging.
The ALJ found there was no credible evidence introduced as to the presence of annular tears nor did Dr. Stieg or Dr. Vilims indicate whether the claimant's pain was affected by activity. The ALJ instead found that the claimant's own testimony supported the inference that his pain increased subsequent to a different procedure at the hands of Dr. Vilims and that it was unremitting except in the face of pain medication. The ALJ concluded that this supported the inference that, if the claimant had cervical axial pain, the recommended ESIs would not be effective and are unreasonable. The ALJ concluded that the claimant had failed to prove by a "preponderance of the evidence" that a cervical ESI was reasonably necessary to cure or relieve the effects of the admitted injury. It appears to us that the ALJ correctly applied the preponderance of the evidence standard.
The Panel has stated on a number of occasions that 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. Deets v. Multimedia Audio Visual, W. C. No. 4-327-591 (March 18, 2005), aff'd Deets v. Industrial Claim Appeals Office No. 05CA0719 (Colo. App. May 17, 2007) (not selected for publication); See Eldi v. Montgomery Ward W. C. No. 3-757-021 (October 30, 1998) (medical treatment guidelines are a reasonable source for identifying the diagnostic criteria). In our view, the ALJ's actions here were consistent with those decisions.
IT IS THEREFORE ORDERED that the ALJ's order dated June 2, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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Curt Kriksciun
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Thomas Schrant
ERIC LOGIUDICE, 11980 BONIFAY LOOP, PEYTON, CO, (Claimant), LIBERTY MUTUAL INSURANCE COMPANY, Attn: DUSTIN JOHNSON, IRVING, TX, (Insurer), STEVEN U. MULLENS, PC, Attn: ROBERT W. TURNER, ESQ., COLORADO SPRINGS, CO, (For Claimant).
MOSLEY, BUSSER, AND APPLETON, Attn: SCOTT M. BUSSER, ESQ., DENVER, CO, (For Respondents).