IN THE MATTER OF THE CLAIM OF CHARLES ABAD, Claimant, v. DYNALECTRIC, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-513-389Industrial Claim Appeals Office.
March 17, 2003

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which awarded medical benefits. We affirm.

On August 4, 2001, the claimant suffered a compensable low back injury which was diagnosed as a lumbar strain. Dr. Noel prescribed physical therapy, medication and work-restrictions to treat the injury. However, the claimant’s condition did not improve. An MRI revealed no mechanical pathology for the claimant’s condition. However, a subsequent CT Myelogram revealed significant pathology at the L4-5 and L5-S1 levels of the lumbar spine. On October 6, 2001, the claimant underwent a lumbar micro laminectomy by Dr. Lamond. During surgery Dr. Lamond discovered a Staph infection in the lumbar area of the spine which required intravenous antibiotic treatment. Dr. Lamond opined the staff infection was causally related to the industrial injury.

Dr. White subsequently performed a records review. Dr. White opined there was no causal connection between the industrial injury and the infection.

Crediting the opinions of Dr. Lamond, the ALJ found the Staph infection probably increased the severity of the lumbar strain by seeding the site and causing the epidural abscess and disc space infection which was discovered during surgery. Further, the ALJ determined that even though the claimant’s Staph infection was a “non-industrial condition,” it was necessary to treat the Staph infection to treat the industrial injury. (Finding of Fact 12). Consequently, the ALJ determined the claimant sustained his burden to prove Dr. Lamond’s treatment of the infection is a compensable medical benefit. The respondents timely appealed.

On review the respondents contend the ALJ erroneously relied on Dr. Lamond’s opinions concerning the cause of the Staph infection because Dr. Lamond’s testimony is not credible under the criteria established i People v. Shreck, 22 P.3d 68 (Colo. 2001). We reject the respondents’ argument.

I.
Under the Colorado Rules of Evidence, before error may be predicated on an allegedly erroneous ruling admitting evidence, it must be shown that a contemporaneous objection was made which stated the specific ground of the objection. CRE 103(a)(1), see also § 8-43-210, C.R.S. 2002 (CRE apply in workers’ compensation proceedings); Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). The ALJ’s order states that the “parties submitted the transcript of the May 16, 2002, deposition of Roderick Lamond M.D., in lieu of live testimony,” and no other testimony was offered. The order also states that “the parties declined to make a record.” The respondents do not contest these findings. Under these circumstances, the record suggests the respondents waived any objection they may have had to the ALJ’s consideration of Dr. Lamond’s testimony on the cause of the Staph infection.

II.
Even if the respondent’s argument was not waived, we perceive no error by the ALJ. Therefore, we may not disturb the award of benefits.

Frye v. United States, 293 F. 1013 (D.C. Cir 1923), established a special admissibility standard for novel or new scientific devices or processes involved the evaluation of physical evidence such as lie detectors, experimental systems of blood typing, fingerprints, voice prints, identification of human bite marks, and microscopic analysis of gunshot residue. In City of Aurora v. Vaughn, 824 P.2d 825 (Colo.App. 1991), the court held that the Frye standard did not apply to the admission of expert medical testimony in workers’ compensation claims.

In People v. Shreck, supra, a criminal defendant sought to bar the admission of DNA testing. The court held that CRE 702, and not the Frye
standard, governs the admission of all scientific evidence or “other expert testimony.” Section 8-43-210 C.R.S. 2002.

CRE 702 provides that:
“If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”

The Shreck court concluded that application of CRE 702 requires a determination as to the 1) reliability of the scientific principles, 2) the qualifications of the witness, and 3) the usefulness of the testimony for the fact-finder. The court added that the reliability inquiry under CRE 702 should be “broad in nature and consider the totality of the circumstances of each specific case.” Ibid at 78.

Both Shreck and CRE 702 contemplate a flexible test which allows an ALJ broad discretion to determine the admissibility of evidence based on an expert’s knowledge, skill, experience, training and education. One Hour Cleaners v. Industrial Claim Appeals Office, 914 P.2d 501 (Colo.App. 1995); Denver Symphony Ass’n v. Industrial Commission, 34 Colo. App. 343, 526 P.2d 685 (1974). We may not interfere with the ALJ’s determination that a witness has specialized knowledge unless it constitutes an abuse of discretion. Hall v. Home Furniture Co., 724 P.2d 94 (Colo.App. 1986). The standard on review of an alleged abuse of discretion is whether the ALJ’s order exceeds the bounds of reason, as where it is not supported by the record or applicable law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).

Here, the disputed evidence was based on Dr. Lamond’s professional experience and personal observation of the claimant during surgery. Thus, the disputed evidence is not “novel scientific” evidence of the type that was the subject of Frye and Shreck. Rather, this is a case where the ALJ had to determine whether Dr. Lamond had sufficient knowledge, skill, experience, training or education to render an expert medical opinion on the cause of the Staph infection.

The ALJ found Dr. Lamond’s opinions credible and more persuasive than the opinions of the respondents’ medical experts because Dr. Lamond obtained a history from the claimant, diagnosed the condition and performed surgery. (Finding of Fact 12). In contrast, the ALJ found that Dr. White’s opinions were based solely upon a review of the medical records. (Conclusions of Law p. 5). These findings support the conclusion the ALJ found Dr. Lamond’s testimony satisfied the reliability criteria required by CRE 702 and People v. Shreck, supra. Therefore, we cannot say the ALJ abused his discretion by crediting Dr. Lamond’s testimony.

III.
In any case, the ALJ did not err in awarding the disputed medical benefits regardless of whether he erred in crediting Dr. Lamond’s opinions concerning the cause of the Staph infection. This is true because the respondents are liable for medical treatment which is reasonable and necessary to cure or relieve the effects of the industrial injury. Section 8-42-101(1)(a), C.R.S. 2002, Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Under the current law treatment of a non-occupational condition which is unaffected by an industrial injury is compensable if the treatment is otherwise necessary to achieve optimum success for treatment of the industrial injury. Public Service Co. of Colorado v. Industrial Claim Appeals Office, 979 P.2d 584
(Colo.App. 1999); Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949); compare, Owens v. Industrial Claim Appeals Office, 49 P.3d 1187 (Colo.App. 2002) (where industrial injury impacts treatment choices for unrelated medical problem but treatment plays no role in curing or relieving effects of industrial injury the treatment is not compensable).

In Public Service, there was substantial evidence that stabilization of the claimant’s non-industrial bipolar disorder was reasonably necessary for the claimant to achieve a full recovery from surgical treatment of the industrial injury. Under these circumstances, the court upheld an order requiring the employer to pay for treatment of the bipolar disorder.

Here, Dr. Noel prescribed medications, work restrictions and physical therapy for the industrial injury. Due to the underlying Staph infection the claimant’s condition did not improve and actually worsened until the infection was treated. (See Lamond depo. p. 7, 9, 11, 12; Dr. Selicki, August 27, 2001). Accordingly, there is substantial evidence in the record to support the ALJ’s determination that treatment of the infection was reasonably necessary to treat the industrial injury. Moreover, this determination supports the award of medical benefits. Public Service Co. of Colorado v. Industrial Claim Appeals Office, supra. Consequently, it is immaterial that the record contains some medical evidence which, if credited, might support a contrary determination concerning the cause of the infection. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).

IT IS THEREFORE ORDERED that the ALJ’s order dated December 9, 2002, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Kathy E. Dean

NOTICE This Order is final unless an action to modify or vacate this Order iscommenced 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. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed March 17, 2003 to the following parties:

Charles Abad, 3320 W. 92nd Ave., Westminster, CO 80031

Dynalectric, 345 Sheridan Blvd., Lakewood, CO 80226

Sherry Martin, Liberty Mutual Insurance Co., P. O. Box 168208, Irving, TX 75016-8208

Marshall A. Fogel, Esq., 1199 Bannock St., Denver, CO 80204 (For Claimant)

Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)

BY: A. Hurtado