IN THE MATTER OF THE CLAIM OF JAMES ABEYTA, Claimant, v. WAL MART STORES, INC., Employer, and CLAIMS MANAGEMENT, INC., Insurer, Respondents.

W.C. No. 4-669-654.Industrial Claim Appeals Office.
January 28, 2008.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated September 17, 2007, that ordered the respondents to pay for a knee surgery recommended for the claimant. We affirm in part and reverse in part.

A hearing was held on the sole issue of the claimant’s entitlement to medical benefits in the form of knee surgery. Following the hearing the ALJ entered factual findings that for the purposes of this order may be summarized as follows. The claimant sustained a compensable knee injury on July 22, 2005, and the respondents provided medical treatment. Dr. Mann, who is an authorized treating physician, recommended that the claimant undergo reconstruction of his ACL, and Dr. Gersoff recommended a total knee replacement. Although the claimant had some degenerative problems in his knee that preexisted the compensable injury, the work-related injury accelerated the need for medical treatment and aggravated his condition. Further, the compensable knee injury made the claimant’s knee symptomatic, while it had previously been asymptomatic. The ALJ also found that the total knee replacement is reasonably needed to cure and relieve the claimant and is “appropriate.” Based upon his factual findings the ALJ ordered the respondents to pay for “either recommended surgery.”

The respondents appealed the ALJ’s order and advance four arguments. They argue that there is no substantial evidence supporting the ALJ’s determination that the requested medical treatment is related to the compensable injury, that the findings of fact do not support the determination that the ACL surgery is reasonable and necessary, that the ALJ violated the respondents’ due process rights, and that the findings of fact do not

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support the determination that the total knee replacement is reasonable and necessary. Although we agree that the respondents lacked notice that the ACL surgery would be adjudicated, we are unpersuaded that the ALJ erred in any other respect.

The respondents, of course, are liable for medical treatment which is reasonably necessary to cure and relieve the effects of the industrial injury. Section 8-42-101(l)(a), C.R.S. 2007; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997); Country Squire Kennels v. Tarshis, 899 P.2d 362 (Colo.App. 1995). Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related injury and the condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Whether the claimant sustained his burden of proof is generally a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Id.; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).

Further, the respondents are liable if employment-related activities aggravate, accelerate, or combine with a pre-existing condition to cause a need for medical treatment. Section 8-41-301(l)(c), C.R.S. 2007 Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Pain is a typical symptom from the aggravation of a pre-existing condition. The claimant is entitled to medical benefits for treatment of pain, so long as the pain is proximately caused by the employment-related activities and not the underlying pre-existing condition. See Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448 (1949).

The issue of whether medical treatment is necessitated by a compensable aggravation or a worsening of the claimant’s pre-existing condition is one of fact for resolution by the ALJ based upon the evidentiary record. See Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); F.R. Orr Construction v. Rinta, 111 P.2d 965 (Colo.App. 1985). We must uphold the ALJ’s factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Colorado Springs v. Givan, 897 P.2d 753 (Colo. 1995). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ’s assessment of the sufficiency and probative weight of the evidence. Thus, the scope of our review is “exceedingly narrow.” Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow

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standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). We note that expert medical opinion is not needed to prove causation where circumstantial evidence supports an inference of a causal relationship between the injury and the claimant’s condition. Savio House v. Dennis, 665 P.d. 141 (Colo.App. 1983). Where conflicting expert opinion is presented, it is for the ALJ as fact finder to resolve the conflict. Rockwell International v. Turnbull, 802 P.d. 1182 (Colo.App. 1990). However, the ALJ is not held to a crystalline standard in articulating his findings, and we may consider findings which are necessarily implied by the ALJ’s order Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).

We first reject the respondents’ argument that the record lacks substantial evidence supporting the factual finding that the recommended knee surgery was related to the compensable injury. Dr. Gersoff stated in a report dated October 5, 2006, that although he could not say that the claimant’s problems were “100% related to his work injury” they were nonetheless “probably . . . exacerbated by his work injury.” Claimant’s Exhibit 1 at 1. Dr. Gersoff reiterated this opinion in his testimony, when he stated that the claimant’s compensable injury “probably” did “accelerate the need for surgery.” Deposition of Wayne Gersoff, M.D. at 21 (February 12, 2006). Further, Dr. Failinger testified that he was “not sure” that he could state that the claimant’s need for a knee replacement was largely due to genetic factors, since “you would have to probably ascribe it more to the traumatic event and the meniscectomy he’s had in the past.” Deposition of Mark Failinger, M.D. at 19 (July 18, 2007) (hereinafter Failinger Depo.) He also testified that the claimant’s injury “made that symptomatic where it wasn’t, at least that I could tell, symptomatic before.” Failinger Depo. at 22. He reiterated that opinion when he explained that the industrial injury caused the claimant’s pain to increase: “Where before either it wasn’t nearly as bad or there wasn’t pain involved. So what he did that day has somehow caused this to become symptomatic and painful, where it either wasn’t as much or wasn’t symptomatic just prior to that event.” Failinger Depo. at 23. Although there is considerable conflicting evidence from which contrary inferences might have been drawn, in our view the factual record supports the ALJ’s determination that the claimant’s industrial injury necessitated the proposed medical treatment.

Similarly, the ALJ’s factual findings that the proposed surgical procedures are reasonable and necessary are also supported by the record. It is true that the medical record is conflicting on those issues, and several of the doctors expressed hesitancy about recommending the total knee replacement given the claimant’s young age. However, Dr. Failinger testified that “you can’t ever say anything is too early. . . . You do it when it’s

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needed.” Failinger Depo. at 26. Further, when asked whether he believed that Dr. Gersoff was “incorrect” in recommending the total knee replacement he stated that he did not. Failinger Depo. at 28. Dr. Gersoff also noted that the claimant was “rather young” to undergo a total knee replacement, but that it “will certainly be beneficial in reducing his pain.” Claimant’s Exhibit 1 at 1. Moreover, because we reverse that portion of the order requiring the respondents to pay for the ACL surgery, it is unnecessary to address the respondents’ argument that the record lacks substantial evidence supporting that determination. (However, we note that Dr. Mann’s recommendation of the ACL surgery constitutes substantial evidence from which the ALJ could reasonably infer that that surgery was reasonable and necessary See Report of Thomas Mann, M.D. at 1, August 28, 2006) (Respondents’ Exhibit A).)

Finally, the respondents argue that they were deprived of due process protections because they had insufficient notice that the ALJ would adjudicate the claimant’s entitlement to the ACL surgery. We agree with the respondents’ argument in this regard.

A party has the right to procedural due process, which generally requires that the party be provided with notice and an opportunity to be heard. Avalanche Industries, Inc. v. Industrial Claim Appeals Office, P.3d (Colo.App. No. 06CA0716, March 27, 2007). The essence of procedural due process is that the proceedings be fundamentally fair City and County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). Due process also requires that a party have advance notice of the issues to be adjudicated at the hearing. Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987). Due process contemplates that the parties will be apprised of the evidence to be considered, and afforded a reasonable opportunity to present evidence and argument in support of their positions. Inherent in these requirements is the rule that parties will receive adequate notice of both the factual and legal bases of the claims and defenses to be adjudicated. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076, 1077 (Colo.App. 1990).

Here, we conclude that the respondents had insufficient notice that entitlement to the ACL surgery would be decided. Although the record does not contain a transcript of the hearing, and we therefore have no record of any discussion that occurred at the commencement of the hearing, we note that the ALJ stated that the issue to be decided was “medical benefits — the recommended knee replacement surgery and whether it is reasonably needed to cure or relieve Claimant from the effects of the compensable injury.” Specific Findings of Fact, Conclusions of Law, and Order at 2. The claimant’s “Position Statement” filed in support of his claim for medical benefits also stated that the issue for hearing was “medical benefits, specifically Claimant’s request for total knee replacement surgery as recommended by Dr. Gersoff.” The “Conclusion” of the claimant’s position statement stated that the relief requested was that “[t]he Claimant

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seeks authorization for a total knee replacement as soon as possible.” We also note that the respondents’ position statement argued at length that the total knee replacement surgery was neither related to the industrial injury nor reasonable and necessary; however, it did not address the ACL surgery. Given this factual record, we conclude that the respondents had insufficient notice that the issues to be adjudicated included the claimant’s entitlement to the ACL surgery and, accordingly, we reverse that portion of the ALJ’s order.

IT IS THEREFORE ORDERED that the ALJ’s order issued September 17, 2007, is reversed insofar as it orders the respondents to pay for the proposed ACL surgery, and

IT IS THEREFORE FURTHER ORDERED that the ALJ’s order issued September 17, 2007 is otherwise affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

_______________________________ Curt Kriksciun

_______________________________ Thomas Schrant

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JAMES ABEYTA, Attn: SANDY PATE, 26900 E COLFAX, SPACE 414, AURORA, CO, (Claimant), WAL MART STORES, INC., Attn: PERSONNEL DEPT. — CONFIDENTIAL, WHEAT RIDGE, CO, (Employer), CLAIMS MANAGEMENT, INC., Attn: LEAANN GAVELLAS, BENTONVILLE, AR, (Insurer), FRANKLIN D AZAR ASSOCIATES, Attn: JOHN CONNELL, ESQ., AURORA, CO, (For Claimant).

CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD A BOVARNICK, ESQ., DENVER, CO, (For Respondents).

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