W.C. No. 4-526-000Industrial Claim Appeals Office.
November 26, 2003
FINAL ORDER
The claimant seeks review of an order entered on remand by Administrative Law Judge Jones (ALJ) which denied medical benefits. We affirm.
On January 23, 2000, the claimant suffered a cervical injury in a motor vehicle accident not related to his employment. As a result of the injury, the claimant underwent cervical fusion surgery at C6-7. In November 2000, the claimant underwent additional fusion surgery at the C5-6 level.
On December 17, 2001, the claimant reinjured his neck in a motor vehicle accident arising out of and in the course of employment. In March 2002, the claimant underwent a repeat fusion at C6-7 by Dr. Beard.
The matter came before the ALJ for hearing on September 27, 2002. In a prior order issued November 6, 2002, the ALJ found the December 17 accident caused a compensable aggravation of the claimant’s pre-existing cervical condition. The ALJ also found the aggravation rendered the claimant temporarily and totally disabled commencing December 18, 2001. Consequently, the ALJ ordered the respondents to provide temporary total disability benefits and “reasonable necessary and related medical benefits for the December 17, 2001, injury.” The respondents appealed.
On appeal, we upheld the award of temporary total disability benefits. However, we concluded the ALJ’s findings of fact were legally insufficient to support the award of medical benefits because the ALJ did not identify what medical treatment was authorized and reasonably necessary to cure or relieve the effects of the industrial injury. Therefore, we set aside the award of medical benefits and remanded the matter to the ALJ for the entry of additional findings of fact and a new order concerning the respondents’ liability for medical benefits.
On remand, the ALJ found the claimant remained symptomatic after the March 2000 cervical surgery and continued to take prescription medication for pain, sleep disturbances caused by pain, and muscle spasms. The ALJ also found that after various pain medications, trigger point injections and massage therapy, the claimant attained only a 40 percent return to his pre-injury status by November 2001.
Dr. van den Hoven opined the claimant’s pain was caused by a fixation screw fragment at C6-7, continued motion at the C6-7 level, and the claimant’s pre-existing pseudoarthrodesis. Similarly, Dr. Pineiro opined the claimant’s pain was caused by the pseudoarthrodesis and not the industrial injury.
Crediting the opinions of Dr. van den Hoven and Dr. Pineiro, the ALJ determined that the conditions which necessitated a repeat fusion on March 5, 2002, were present before December 17. The ALJ further determined the December 17 industrial injury was a low — speed impact collision caused when the claimant backed a small pickup into a pole. Therefore, the ALJ determined the March 2002 surgery was not reasonable or necessary to treat the industrial injury. The ALJ also determined Dr. Beard’s treatment was not authorized. Consequently, in an order dated July 29, 2003, the ALJ determined the respondents are not liable for Dr. Beard’s treatment.
I.
On review of the July 29 order, the claimant contends the respondents waived any dispute that Dr. Beard’s treatment was not authorized or related to the industrial injury. Alternatively, the claimant contends these issues were not endorsed for the September 27 hearing.
Our Order of Remand explicitly rejected the claimant’s waiver argument. To the contrary, we noted that at the commencement of the hearing on September 27, claimant’s counsel requested an order requiring the respondents to provide “reasonable and necessary medical services.” In response, the respondents’ attorney denied liability for the March 2002 surgery on grounds the surgery was neither authorized nor related to the industrial injury. (Tr. p. 7). The record also contains evidence that during cross-examination, the respondents’ attorney asked the claimant whether he requested authorization for the March 2002 surgery. (Tr. pp. 39, 40). We adhere to our prior conclusion that the issues were not waived and based upon this record, also reject the claimant’s contention that the issues were not properly before the ALJ for adjudication.
II.
The claimant also contends the ALJ exceeded the scope of our Order of Remand insofar as he found there was no causal connection between the industrial injury and the March 2002 surgery. Again, we disagree.
Our Order of Remand set aside the ALJ’s November 6, 2002 award of medical benefits and directed the ALJ to enter a new order concerning the respondents’ liability for specific medical benefits. Because we found the findings of fact were legally insufficient to support the award, our Order of Remand necessarily contemplated the entry of new findings of fact based on the existing record. Therefore, the ALJ was not bound by her prior findings of fact. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (court deferred to industrial commission’s interpretation of its own order of remand); Struble v. Douglas County School District, W.C. No. 3-998-051 (October 27, 1995). In fact, had we concluded that the prior findings of fact were sufficient, we could have resolved the issue as a matter of law and it would have been unnecessary to remand the matter. Cf. Schrieber v. Brown Root, Inc., 888 P.2d 274
(Colo.App. 1993) (where undisputed facts lead to only one conclusion, the issue is a question of law).
Insofar as the ALJ determined on remand that she could not make specific findings of fact to support her prior award of medical benefits, she was implicitly authorized to reconsider the evidence and issue new findings based upon the evidence she deemed persuasive. See Musgrave v. Industrial Claim Appeals Office, 762 P.2d 686, 688 (Colo.App. 1988) (a general order of remand authorizes the ALJ to reexamine the record and make new findings and conclusions). Accordingly, the ALJ did not exceed the scope of our remand by making factual determinations inconsistent with her previous order. It follows that the claimant’s arguments concerning inconsistencies between the ALJ’s November 2002 order and the order on remand about the causal relation between the March 2002 surgery to the industrial injury do not establish grounds which afford us a basis to grant appellate relief.
There is also substantial evidence in the medical reports of Dr. van den Hoven and Dr. Pineiro to support the ALJ’s finding that the March 2003 surgery was not necessitated by the industrial injury and this finding supports the order denying the disputed medical benefits.
The claimant’s further arguments have been considered and are not persuasive. The “law of the case” doctrine is a discretionary rule which provides that prior relevant rulings made in the same case are generally to be followed. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). However, law of the case applies to issues of law and not findings of fact. Mining Equipment Inc., v. Leadville Corp., 856 P.2d 81 (Colo.App. 1993).
As argued by the claimant, our order of remand upheld the ALJ’s November 2002 finding of a causal relationship between the industrial injury and the claimant’s disability and need for further treatment. However, the finding of a compensable injury or a compensable disability does not require a finding that all medical treatment after the industrial injury is authorized or causally related to the industrial injury. Cf. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997) (admission of liability for medical benefits is only admission to pay “reasonable and necessary” treatment). Therefore, the ALJ was not precluded from finding that the respondents are not liable for the March 2002 surgery.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 29, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on November 26, 2003by A. Hurtado.
Kevin Briggs, 525 City Park Ave., Ft. Collins, CO 80521
Employer Source, LLC, 3780 E. 15th St., #201, Loveland, CO 80538-8767
Willard Wright Plumbing Heating, 1556 Riverside Ave., Ft. Collins, CO 80524
Heather Bartlett, Liberty Insurance Corporation, P. O. Box 3539, Englewood, CO 80155-3539
Craig Stirn, Esq., 343 W. Drake Rd., #105, Ft. Collins, CO 80526 (For Claimant)
Keith E. Mottram, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondents)