W.C. No. 4-153-716Industrial Claim Appeals Office.
December 28, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which awarded continuing medical benefits under Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). We modify the order, and as modified, affirm it.
The claimant sustained neck and back injuries in October 1992. The treating physician, Dr. Charbonneau, found the claimant to be at maximum medical improvement in November 1992, and released him to work without restrictions and with no permanent impairment. Based on Dr. Charbonneau’s report, the respondents filed a final admission of liability in December 1992.
The ALJ found that, by October 1994, the claimant had moved to Texas were he was examined by Dr. Reesor. At that time, the claimant reported significant symptoms in his right upper extremity and difficulty swallowing. Dr. Reesor referred the claimant to Dr. Rotzler for the swallowing difficulties, and also requested an MRI.
In a report dated February 14, 1995, Dr. Reesor stated that the MRI revealed “significant degenerative anterior herniation C6-7” and “bulging fairly significantly into the esophageal area.” Dr. Reesor opined that the claimant’s condition was “consistent with that of injuries described when the dresser fell and struck him on the neck and shoulder,” and that the “difficulty with the swallowing . . . is associated with that of anterior spurring which occurs about a year after an initial injury, which is a fairly good time reference for his symptoms.” Dr. Reesor recommended the continuation of “conservative” treatment which included the use of anti-inflammatory medication.
Under these circumstances, the ALJ stated that the claimant “sustained his burden of proof as to continuing medical benefits” under Grover. Consequently, the ALJ ordered the respondents to pay the claimant’s medical bills in order to “maintain his condition.” The ALJ also ordered the payment of specific medical bills listed in the order. These bills were for services rendered by Dr. Reesor and providers to whom he referred the claimant.
On review, the respondents’ first contention is that the ALJ’s order for Grover medical benefits is not a “general order” as contemplated b Milco Construction v. Cowan, 860 P.2d 539 (Colo.App. 1992). The respondents argue that the ALJ improperly ordered them to pay for specific medical expenses rather than future benefits. We disagree with this argument.
In Stollmeyer v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 94CA1798, September 14, 1995), the court stated the following:
“Thus, to support an award for ongoing medical benefits, there must be substantial evidence that future medical treatment is reasonably necessary to relieve the effects of the industrial injury or to prevent future deterioration of the claimant’s work-related condition. Although the specifics of that treatment may be articulated, as in Milco, specificity is not required.”
Here, the ALJ found, based on the reports of Dr. Reesor, that the claimant has received, and continues to need, conservative therapy for treatment of his work-related condition. The specific course of therapy has included anti-inflammatory medication. Consequently, the ALJ merely identified the specific types of ongoing treatment which the claimant needs. He also entered a general order requiring the respondents to pay for additional treatment to “maintain” the claimant’s condition. This type of order was proper under Stollmeyer and Milco Construction.
However, we agree with the respondents that the ALJ erred in ordering payment for the specific medical bills. The claimant testified that he received treatment from Dr. Reesor, Dr. Rotzler, Good Shepard Medical Center, and Longview Imaging Consultants. (Tr. pp. 10-11). However, copies of the specific billings mentioned in the ALJ’s order are not in the record.
Thus, there is not substantial evidence to support the ALJ’s order to pay the specific bills listed in the order. Nevertheless, there is evidence to support the conclusion that the claimant received reasonable and necessary treatment from these providers. Under these circumstances, the appropriate relief is to modify the order so as to delete references to the specific medical bills listed by the ALJ. The order should be modified to reflect that respondents are liable for reasonable and necessary expenses incurred at the hands of these providers. To the extent the respondents have a legitimate dispute concerning any particular bill, they may set the issue for a hearing before an ALJ.
The respondents next contend that the claimant failed to object to the final admission of liability. Therefore, they argue that the claimant was required to file a petition to reopen the matter prior to seeking an award of Grover medical benefits. We reject this argument.
In our view, the argument that the claim was closed, and therefore, that the claimant was required to file a petition to reopen, is in the nature of an affirmative defense to the claim for Grover medical benefits. The respondents’ argument is akin to res judicata, waiver, or other procedural defenses which serve to bar a claim. In order to take advantage of such defenses, it is the obligation of the proponent to raise them in a timely fashion, or the defenses are waived. See Crocker v. Colorado Department of Revenue, 652 P.2d 1067 (Colo. 1982); Kersting v. Industrial Commission, 39 Colo. App. 297, 567 P.2d 394 (1977).
Here, we have reviewed the respondents’ “Response to Application for Hearing,” the “Respondents’ Position Statement,” as well as counsel’s remarks at the hearing. At no time did the respondents raise the issue of the final admission or purported closure of the claim. Consequently, the respondents waived consideration of the issue, and are not in a position to raise it on appeal. Lewis v. Scientific Supply Co., Inc., 897 P.2d 905
(Colo.App. 1995).
Neither are we persuaded that the respondents were unfairly surprised by the ALJ’s award of Grover medical benefits. In fact, at the close of the hearing the ALJ stated that the issue involved Grover medicals, and the respondents did not express surprise or request a continuance. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
The respondents’ final argument is that there is not substantial evidence to support the ALJ’s finding that the claimant’s need for Grover
medical benefits is causally connected to the industrial injury. We reject this argument.
The question of whether a need for treatment is causally connected to an industrial injury is a question of fact. F. R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Consequently, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). Moreover, it was for the ALJ to assess the weight and credibility of the medical evidence when resolving the issue of causation. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
Here, the medical records reflect that the claimant sustained an injury to his neck, back, and right clavicle in October 1992. It is true that, for various period thereafter, the claimant’s symptoms appeared primarily on the left. However, the claimant’s testimony, as well as the reports of Dr. Reesor, support the conclusion that the October 1992 injury was the probable cause of his right-sided symptoms and need for treatment in 1994.
Under these circumstances, we decline the respondents’ invitation to substitute our judgment for that of the ALJ on the factual issue of causation. The mere fact that some evidence in the record could support different findings and conclusions affords no basis for relief on appeal May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The respondents’ argument that the opinion of Dr. Charbonneau is entitled to special weight is without merit. There is no statutory authority for asserting that the opinion of the treating physician concerning the need for Grover medical benefits is entitled to any special weight.
IT IS THEREFORE ORDERED that the ALJ’s order, dated May 22, 1995, is modified in accordance with the provisions of this order.
IT IS FURTHER ORDERED that, as modified, the ALJ’s order is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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 December 28, 1995 to the following parties:
James Winters, Route 4, Box 119, Big Sandy, TX 75755
Cowen Transfer and Storage, P. O. Box 7265, Colorado Springs, CO 80933-7265
Vanliner Insurance Co., % Frontier Adjusters, P. O. Box 161, Arvada, CO 80004
Richard E. Samson, Esq., 515 Kimbark St., #105, P. O. Box 1079, Longmont, CO 80502
(For Claimant)
Karen R. Wells, Esq., 3900 E. Mexico, #1000, Denver, CO 80210
(For Respondents)
By: ________________