W.C. No. 4-209-155Industrial Claim Appeals Office.
September 30, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) denying his claim for medical benefits. We affirm.
The ALJ’s order of May 28, 1997, was entered pursuant to the opinion of the Court of Appeals dated December 12, 1996. In its opinion, the Court of Appeals upheld the ALJ’s prior order dated June 21, 1995, insofar as it determined that the claimant reached maximum medical improvement (MMI) “from the orthopedic injury” on January 20, 1994. Further, the court upheld the ALJ’s scheduled disability award based on a twenty-six percent impairment of the right upper extremity.
However, the court remanded the matter for additional findings concerning the “compensability of the asserted psychological injury.” The court stated that, regardless of whether the claimant reached MMI for the physical component of the injury, the claimant might be entitled to additional medical benefits to prevent “future deterioration of” the work-related condition, or to treat a “conceivable” worsening of the claimant’s condition due to the psychological effects of the injury. Further, the court held that the claimant’s entitlement to additional medical benefits should be based on the “preponderance of the evidence standard.” Thus, the court remanded for specific findings of fact concerning the “claimant’s request for change in physician, authorization of Dr. Michelli, and further medical benefits.” (Slip opinion, p. 5).
In the order of May 28, 1997, the ALJ found that Dr. Michelli examined the claimant and recommended “psychoeducational reviews” for the claimant, although he did not disagree that the claimant was at MMI. The ALJ explicitly found that Dr. Michelli’s opinion “concerning the existence of a psychological impairment or the need for psychological treatment” is not credible.
Moreover, the ALJ found that the claimant’s testimony concerning his “newly found” realization that he is “angry” about the injury is insufficient to support the claim for additional medical benefits. Consequently, the ALJ denied the claim for treatment by Dr. Michelli because the claimant failed to carry his burden of proof to establish the need for treatment.
On review, the claimant contends that the ALJ erred in finding that Dr. Michelli is not credible concerning the existence of a psychological impairment and the need for psychological treatment. The claimant asserts that the ALJ’s May 28 order represents a “shallow attempt” to circumvent the order of the Court of Appeals, and reflects the ALJ’s “implementation of some personal agenda.” In support of these assertions, the claimant alleges that the ALJ found Dr. Michelli credible in the order of June 21, 1995, and inexplicably changed her mind in the May 28, 1997 order. We disagree.
In its order, the Court of Appeals specifically directed the ALJ to make findings of fact concerning the “reasonableness and necessity of the psychological treatment” that was recommended by Dr. Michelli. The question of whether an industrial injury caused the need for a particular kind of medical treatment is one of fact for determination by the ALJ. See Snyder v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 96CA0679, February 6, 1997).
Because of the question of whether a particular form of treatment is reasonable and necessary is factual, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. Thus, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence, including the medical evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the ALJ chose to discredit Dr. Michelli’s opinion that the claimant’s wrist injury caused a need for psychological treatment. The ALJ did not credit Dr. Michelli’s opinion because the referral to Dr. Michelli came from the claimant’s attorney rather than the treating physicians, the treating physician did not note any psychological problems, and the claimant has not suffered a worsening of condition. Moreover, the ALJ was not persuaded by the claimant’s testimony because the claimant’s reports of “anger” developed long after the injury. We decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning the credibility of Dr. Michelli and the claimant.
Moreover, we do not believe the ALJ’s order constitutes an attempt to circumvent the order of the Court of Appeals. To the contrary, the court’s decision explicitly requires the ALJ to make additional findings of fact concerning the reasonableness and necessity of the treatment proposed by Dr. Michelli. If the court had determined that the compensability of the treatment was a foregone conclusion, it would simply have reversed the prior order and directed the respondents to provide psychological treatment.
We also disagree with the claimant’s assertion that the ALJ found that Dr. Michelli was credible in 1995, and is now altering that conclusion for impermissible reasons. The ALJ’s only specific finding concerning Dr. Michelli was as follows:
“Dr. Michelli, in his report, indicates that he examined the Claimant, upon referral by the Claimant’s attorney on March 12, 1995. Dr. Michelli, in his report, does not indicate that Claimant has not reached maximum medical improvement, but does recommend psychoeducational reviews.”
The ALJ’s June 21, 1995 order contains no ruling on Dr. Michelli’s credibility, and certainly not a finding that he is credible. In fact, it was the absence of any such findings which prompted the court to remand the matter to the ALJ for further findings. It follows that we do not consider the ALJ’s May 1997 order as an attempt to further a “personal agenda,” but rather a reasonable attempt to execute the directions of the Court of Appeals.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon 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. 1997.
Copies of this decision were mailed September 30, 1997 to the following parties:
Ryan E. Mendonca, 2133 Silent Rain Dr., Colorado Springs, CO 80919
Sisters of St. Francis, 7665 Assisi Heights, Colorado Springs, CO 80919
Colorado Compensation Insurance Authority, Attn: Curt Krikscium, Esq. (Interagency Mail)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For the Claimant)
By: _______________________________