W.C. No. 4-150-139Industrial Claim Appeals Office.
April 15, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) insofar as it can be construed as determining that two surgeries were reasonable and necessary. We affirm the order in part and set it aside in part.
The claimant sustained a compensable injury in September 1992. The injury caused the claimant to experience headaches, back and neck pain, and right shoulder pain.
By April 1995, the claimant’s treating physician was Dr. Donner. At that time, Dr. Donner recommended a cervical fusion, stating that the “right shoulder will need to be evaluated further and separately.”
In May 1995 the respondent-insurer denied authorization for the cervical fusion on the ground that it was not medically necessary. The claimant then applied for a hearing based on the denial of the surgery. The record also reflects that the claimant was seeking compensation for prior medical bills which allegedly remained unpaid.
Ultimately, the claimant underwent the cervical fusion in June 1995. By July 25, 1995, Dr. Donner reported that the claimant was doing “extremely well” and that, in a few weeks, he would consider “a definitive procedure for her snapping scapula.”
On August 8, 1995, Dr. Donner recommended a “medial scapulectomy in hopes of relieving the remainder of [the claimant’s] symptoms.” However, Dr. Donner’s office note of August 9, 1995 indicates that the respondent-insurer denied authorization for this procedure. Nevertheless, the claimant underwent the shoulder surgery in late August 1995, a few days before the September 5, 1995 hearing.
At the hearing, the claimant requested that the ALJ to order payment for the cervical fusion and the shoulder surgery. Counsel for the respondents objected to consideration of their liability for the shoulder surgery because he understood that “the only medical procedure in dispute . . . was the neck surgery.” (Tr. p. 14). Nevertheless, the ALJ proceeded to receive evidence concerning the shoulder surgery.
In his order, the ALJ determined that the cervical surgery was reasonable and necessary in view of the reports and testimony of Dr. Donner. In so doing, the ALJ stated that Dr. Donner’s opinions were more persuasive than those of Dr. Darrah. Consequently, the ALJ ordered the respondents to pay “the cost of surgery performed by Dr. Jeffery Donner.”
On review, the respondents contest the order insofar as it requires them to pay for the shoulder surgery. They argue that it is not clear whether the ALJ actually intended to order payment for the shoulder surgery, or only for the cervical fusion. However, to the extent the that the ALJ ordered payment for the shoulder, the respondents contend the matter was not properly before the ALJ. We agree that, to the extent the order is intended to compensate for the shoulder surgery, the ALJ should not have considered the issue.
Due process of law requires notice and opportunity to be heard. To the extent that an administrative determination turns on a question of fact, it is necessary that the parties “be apprised of all the evidence to be submitted and considered, and that they be afforded a reasonable opportunity in which to confront adverse witnesses and to present evidence and argument in support of their position.” Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990). We also note that Rule of Procedure VIII(A)(5), 7 Code Colo. Reg. 1101-3 at 21, precludes a party from adding “an issue after the filing of the application or response accept upon agreement of all parties, or approval of an administrative law judge for good cause shown.”
Here, we agree with the respondents that they were not sufficiently apprised that the ALJ would consider the reasonableness and necessity of the shoulder surgery at the September 5 hearing. Instead, the record reveals that the shoulder surgery was not even recommended until August 1995, more than two months after the claimant initially applied for the hearing, and was performed only days before the hearing. Under these circumstances, it was logical for the respondents to believe that the issue for hearing was the reasonableness of the cervical surgery, not the reasonableness of a procedure which was recommended and performed subsequent to the filing of the application. Neither is there any indication that the claimant asked to add the issue of payment for the shoulder surgery.
Moreover, we cannot say that the respondents waived their right to object to consideration of the reasonableness of the shoulder surgery. To the contrary, when it became apparent that the ALJ would consider this issue, the respondents objected. (Tr. p. 14).
Under these circumstances, we must set aside the ALJ’s order insofar as it can be construed as ordering the respondents to pay for the shoulder surgery. The claimant may obtain consideration of the issue by filing a new application for hearing.
II.
The respondents next contend that the ALJ erred in determining that the cervical surgery was reasonable and necessary. In support of this position they rely on the opinions of Dr. Darrah, as well as evidence that the claimant was not psychologically suitable for surgery. We reject this argument.
The question of whether medical treatment is reasonable and necessary is one of fact for resolution by the ALJ. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995). Consequently, we must uphold the ALJ’s resolution of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). The substantial evidence test requires that we defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Ackerman v. Hilton’s Mechanical Men, Inc., ___ P.2d ___ (Colo.App. No. 95CA1051, February 22, 1996).
Here, Dr. Donner’s April 4, 1995 report expressly states that the cervical fusion was a “reasonable option” for treatment of the claimant’s condition. Moreover, the ALJ explicitly rejected conflicting medical evidence, including the opinions of Dr. Darrah. Thus, there is substantial evidence to support the award of compensation for the cervical fusion.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 10, 1995, is set aside insofar as it ordered payment for the shoulder surgery.
IT IS FURTHER ORDERED that the ALJ’s order is otherwise affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed April 15, 1996 to the following parties:
Charleeann Gippert, 18936 Elm St., Lucerne, CO 80646
Nurse Placement Staffing, Inc., P.O. Box 1461, Greeley, CO 80632-1461
Wausau Insurance Company, Attn: Pamela G. Rose, P.O. Box 419157, Kansas City, MO 64141-6157
Kristi J. Coffin, Esq., 1416 11th Ave., Greeley, CO 80631
(For Claimant)
Mark E. Macy, Esq. and Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210
(For Respondents)
By: _______________________