IN THE MATTER OF THE CLAIM OF NANCY HOFFMAN, Claimant, v. WAL-MART STORES, INC., Employer, and CLAIMS MANAGEMENT, INC., Insurer, Respondents.

W.C. No. 4-774-720.Industrial Claim Appeals Office.
January 12, 2010.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated August 20, 2009, that denied the claimant’s requests for certain medical benefits and for temporary total disability (TTD) benefits. We affirm.

The ALJ found the claimant suffered an industrial injury to her right shoulder on July 24, 2008. However, the ALJ found the claimant did not leave work and suffered no wage loss until she sought care on October 15, 2008, and underwent surgery on October 20, 2008 at the Littleton Adventist Hospital. The ALJ found that the admission and the surgery was not the result of the compensable injury. Therefore, the ALJ determined that the claimant had failed to establish that she was disabled as a result of the injury and her request for TTD benefits was denied. The ALJ ordered the insurer to pay for the costs of the care the claimant received from Littleton Adventist Hospital emergency room on July 26, 2008, Dr. Reiter and other providers at Concentra Medical Centers, Dr. Bisgard and other providers at HealthOne. However, the ALJ found the insurer was not liable for the care the claimant received at Littleton Adventist Hospital Emergency room on August 20, 2008, Swedish Medical Center Emergency Room on August 31, 2008, Littleton Adventist Hospital commencing on October 15, 2008 and from Dr. Markey.

I.
The claimant first contends that the ALJ erred in finding that surgery performed by Dr. Markey was not reasonable and necessary to cure or relieve the claimant from the effects of her compensable injury. The claimant argues that there is no evidence that supports the ALJ’s finding. We disagree.

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The respondent is liable for medical treatment, which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2009; Colorado Compensation Insurance Authority v. Nofio, 886 P.2d 714 (Colo. 1994). The question of whether medical treatment is reasonable and necessary is one of fact for determination by the ALJ. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002); Wal-Mart Stores, Inc. v. Industrial Claims Office, 989 P.2d 251 (Colo. App. 1999). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. Substantial evidence is that quantum of probative evidence, which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo. App. 1995).

In our view, the ALJ could reasonably construe the medical record as a whole as demonstrating that the surgery performed by Dr. Markey was not reasonably needed to cure or relieve the claimant from the effects of the compensable injury. The ALJ made, with record support, lengthy and detailed findings of fact regarding the claimant’s requests for narcotics and inconsistencies between the claimant’s subjective reports of pain with her objective findings on examination. These specific findings of fact do not appear to be contested by the claimant. Some of those findings are summarized below.

The claimant had been treated by Dr. Horrocks for a number of years for chronic pelvic pain. The workup of Dr. Horrocks had been exhaustive but no specific etiology was found for the claimant’s pain complaints and she had been prescribed narcotic pain relievers and had signed a narcotic contract in order to obtain the prescriptions of narcotic pain relievers. On July 26, 2008, after her industrial injury, the claimant was seen in an emergency room and was placed in a shoulder immobilizer and prescribed Vicodin. On July 28, 2008, the claimant was seen at Concentra but she gave no medical history of her chronic pain complaints or use of narcotics. The claimant was prescribed Vicodin. The claimant was noted to have an active range of cervical motion. On July 30, 2008 the claimant had utilized all of the vicodin she had been prescribed and the therapist noted that the claimant’s subjective report was inconsistent with her objective findings. On August 11, 2008, the claimant returned to Concentra and requested refills of the soma that had been prescribed and was essentially normal except some complaints of tenderness. On August 20, 2008, the claimant was evaluated at the Littleton Adventist Hospital Emergency Room (ER) seeking pain relief. She reported that she had received nothing stronger than Tylenol for her pain. However, the claimant’s neck was reported to be supple and non-tender and she had normal and non-painful range of motion at the shoulder and neck. The ER physician explained to her that she should not return for further narcotic medications. The ER physician was “very suspicious” about the nature of her discomfort and did not feel that narcotics were in her best interests.

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The claimant was seen by Dr. Chan for diagnostic testing and complained of severe pain at levels 10/10, described as pain so severe it would cause someone to pass out. However, Dr. Chan noted that the claimant would sit thorough the exam “comfortably, quite animated and interacting without signs of pain.” Dr. Bisgard was not willing to prescribe ongoing narcotics despite the claimant’s request for them, due to the lack of objective data. Despite Dr. Bisgard’s counseling against the use of narcotics, the claimant advised her that she would go to the emergency room again for narcotics.

The ALJ specifically found that throughout the course of this claim no doctor was aware that the claimant was receiving narcotics in connection with the workers’ compensation claim in violation of her narcotics contract with her primary care provider, Dr. Horrocks. At the time she went to the ER for narcotics, she had prescriptions for the same drugs from Dr. Horrocks. Therefore, the ALJ concluded that treatment at the ER was not reasonable and necessary.

On October 7, 2008, Dr. Chan discussed with the claimant her ongoing use of narcotics and the fact that he was uncomfortable continuing to prescribe her narcotics for subacute chronic pain. The claimant did not return for any further treatment by Dr. Chan. On October 20, 2008, the claimant contacted Dr. Chan’s office and left a voice mail stating that she had been admitted to the hospital for back pain. On October 20, 2008, a person from Dr. Chan’s office contacted the claimant and the claimant stated that Dr. Chan should be expecting something from her attorney to discontinue all care from doctors that she had been seeing prior to her surgery. Prior to her refusal to treat with Dr. Chan, he had referred her to Dr. Zarou to whom she reported a “25 pound weight loss” due to vomiting from pain. However, the claimant’s initial weight noted at Concentra was 169 pounds her weight at Dr. Zarou’s office was 165.

The claimant presented to Littleton Adventist Hospital Emergency Room on October 14, 2008 where she had received narcotic mediations on multiple prior occasions. The claimant was admitted to the hospital for “pain control” and a two level cervical fusion was performed on October 20, 2008. The surgery was primarily, if not solely, for the purposes of pain control. Dr. Bisgard reviewed Dr. Markey’s report and noted that it appeared that he did not have the benefits of reviewing the claimant’s medical records. Dr. Bisgard noted that the treatment of the claimant was difficult because of her extreme pain behaviors and inconsistencies.

The ALJ concluded that the October 2008 admission and the surgery at Littleton Adventist Hospital was not the result of the compensable injury. It is this conclusion rather than the specific facts recited above that the claimant challenges. The claimant cites other evidence from the medical record including opinions by the surgeon Dr. Markey and even from an expert retained by the respondent. However, the ALJ is not

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required to credit the testimony of a witness, even if it is uncontradicted and unrebutted. Levy v. Everson Plumbing, Co., Inc., 171 Colo. 468, 468 P.2d 24 (1970); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo. App. 1993). Further, we may not reevaluate the evidence. See Metro Moving Storage, 914 P.2d at 415. On the contrary, we must uphold the decision where, as here, substantial evidence supports the ALJ’s determination.

We note that ALJs are presumed to possess special expertise and competence in dealing with medical evidence. ALJs are competent to evaluate evidence in cases of this character. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638 (1941). Further, we are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).

In our view, the ALJ’s conclusion that the surgery performed by Dr. Markey was not reasonably needed to cure or relieve the claimant from the effects of the compensable injury is supported by substantial evidence and plausible inferences drawn from the record. Here, the ALJ was convinced that the claimant’s extreme pain behavior, which was inconsistent with the lack of objective data, was connected with her desire for narcotic mediations. It is evident that the ALJ was persuaded that the surgery, performed by a surgeon who did not have the benefit of reviewing the claimant’s medical records, was primarily, if not solely, for the purposes of pain control rather than reasonably needed to cure or relieve the claimant from the effects of the compensable injury. In our view, the ALJ’s conclusion is supported by the medical record as a whole.

It does not appear that the ALJ based his conclusion on specific opinions of experts regarding the causal connection between the compensable injury and the surgery. However, direct medical evidence is not dispositive of causation. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963) Savio House v. Dennis, 665 P.2d 141 (Colo. App. 1983); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo. App. 1981) (expert medical evidence not dispositive of causation). Further, the ALJ is not held to a standard of absolute clarity when issuing findings of fact and conclusions of law provided the basis of the order is apparent from the findings, which are entered. When considering an order we may note findings, which, although not expressly contained in the order, are necessarily implied by it. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

II.
The claimant next contends that the ALJ erred in finding that Dr. Markey was not authorized and that the October 20, 2008 surgery was not in the normal progression of

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authorized treatment. The claimant argues that because the surgery was performed on an emergency basis, which was reasonable and necessary to cure or relieve the claimant from the effects of the compensable injury, that the cost of the surgery must be paid by the insurer. We disagree.

In Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990), the court held that in cases of medical emergency the claimant need not seek authorization from the employer or insurer before obtaining medical treatment from an unauthorized provider. We first note that the ALJ had found that the surgery was not reasonably needed to cure or relieve the claimant from the effects of the compensable injury. Therefore, the medical emergency exception to the need for authorization does not apply.

Moreover, here the ALJ explicitly rejected the argument that the care rendered by Dr. Markey was authorized under the emergency doctrine. The question of whether a bona fide emergency exists is one of fact and is dependent on the circumstances of the particular case. Timko v. Cub Foods W. C. No. 3-969-031(June 29, 2005). Therefore, we must uphold the ALJ’s determination if supported by substantial evidence.

In our view, there is substantial evidence to support the ALJ’s finding that the insurer was not liable for the care the claimant received at Littleton Adventist Hospital commencing on October 15, 2008 and from Dr. Markey. Consequently, we are not persuaded to interfere with the ALJ’s conclusion that the claimant failed to establish surgery was performed on an emergency basis.

In our view, there is substantial evidence to support the ALJ’s findings underlying the conclusion that the treatment was not justified as an emergency. We first note that the claimant does not appear to argue that Dr. Markey was authorized other than through the exception for emergencies. The ALJ made the following findings of fact. On October 7, 2008, the claimant reported that her pain levels had decreased from level 10/10 to a level 5/10. Therefore, she did not feel it would be necessary to be seen by Dr. Ring for a proposed treatment. By October 8, 2008, the claimant had undergone extensive tests that were negative. The claimant had been directed by Dr. Bisgard not to seek further emergency room care for the compensable injury. On October 9, 2008, the claimant reported she was doing better. On October 14, 2008, the claimant reported feeling worse and requested a release from work. However, Dr. Zarou advised the claimant that he would not excuse her from work and that she should present to Dr. Bisgard’s office for evaluation. The claimant then sought treatment at the emergency room at the Littleton Adventist Hospital. The claimant again does not challenge any of the specific findings of fact made by the ALJ but rather cites other evidence in support of her a claim that an emergency existed.

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Further, the ALJ’s meticulous findings document numerous ER visits, the suspicions of the ER physicians and other physicians regarding the claimant’s use of reports of pain in order to obtain narcotics. See Timko v. Cub Foods supra, (not a bona fide emergency where claimant’s ER visit was the result of the desire to obtain narcotics). We are not persuaded to interfere with the ALJ’s conclusion that the claimant failed to establish the surgery was performed on an emergency basis.

III.
The claimant finally contends that the ALJ erred in failing to award TTD benefits. The claimant argues that the surgery was necessary to cure or relieve her from the effects of the compensable injury and because she was disabled following the surgery, she is entitled to TTD benefits. We disagree.

The ALJ found that the claimant did not leave work and suffered no wage loss until she sought care on October 15, 2008, and underwent surgery on October 20, 2008. That admission and the surgery was not the result of the compensable injury. Therefore, the ALJ concluded that the claimant had failed to establish that she was disabled as a result of the injury. The ALJ denied the claimant’s request for TTD benefits.

To prove entitlement to TTD the claimant must prove the industrial injury caused a “disability.” § 8-42-103(1), C.R.S. 2009; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo. App. 1997). We again must uphold the ALJ’s determination if it is supported by substantial evidence. § 8-43-301(8), C.R.S. 2009. This standard of review again requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).

We have upheld the ALJ’s determination that the surgery was not reasonably needed to cure or relieve the claimant from the effects of the compensable injury and that the surgery was not authorized. Therefore, because the surgery was not established to be causally connected with the industrial injury, we agree with the ALJ that the claimant did not carry her burden to prove that the industrial injury caused the claimant’s disability following the surgery. Consequently, we uphold the ALJ’s conclusion that the claimant failed to establish that she was disabled as a result of the injury.

IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 2009 is affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Thomas Schrant

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NANCY HOFFMAN, ENGLEWOOD, CO, (Claimant).

WAL-MART STORES, INC., Attn: DENISE MCCOOL, HIGHLANDS RANCH, CO, (Employer).

CLAIMS MANAGEMENT, INC., Attn: SHIRLEY KINTTNER, C/O: CLAIM NO. 5601328, BENTONVILLE, AR, (Insurer).

FOGEL, KEATING, WAGNER, POLIDORI AND SHAFNER, Attn: NICK D FOGEL, ESQ., DENVER, CO, (For Claimant).

CLIFTON, MUELLER BOVARNICK, PC, Attn: M. FRANCES MCCRACKEN, ESQ., DENVER, CO, (For Respondents).